Don't Judge a Book by Its Cover! The Sixth Circuit Provides Employers With A Roadmap For Hiring Persons With Disabilities
The Sixth Circuit Court of Appeals reversed the Michigan district court's ruling in Keith v. County of Oakland, finding a deaf applicant's rights under the Americans with Disabilities Act ("ADA") may have been violated when Oakland County ("the County") revoked its job offer to hire him as a lifeguard.
Nicholas Keith, who was born deaf, trained and successfully completed the County's lifeguard training program in 2007. After receiving his lifeguard certification, Keith applied for a lifeguard position at Oakland County's wave pool. The job announcement required each applicant be at least 16 years of age and pass the County water safety test and lifeguard training program. The announcement also included a condition of employment which stated, "[a]ll persons hired by Oakland County must take and pass a medical examination from a county-appointed physician, at no cost to the applicant."
Recreation specialist Katherine Stavale offered Keith a part-time position and scheduled his medical examination. Keith and his mother met with Dr. Paul Work, D.O. shortly thereafter. Upon entering the examination room, Dr. Work stated, "[h]e's deaf; he can't be a lifeguard." Mrs. Keith asked, "[a]re you telling me you're going to fail him because he is deaf[?]". Dr. Work responded, "[w]ell, I have to." Dr. Work informed Ms. Stavale that Keith could not function independently as a lifeguard...unless he was "constantly accommodated."
After receiving Dr. Work's report, Ms. Stavale placed Keith's employment on hold, and contacted the client manager for aquatic safety and risk management. Ms. Stavale was directed to perform a job-task analysis to determine whether Keith could perform the job with or without reasonable accommodation. After preparing an outline of potential accommodations, Ms. Stavale concluded that Keith would successfully integrate into the lifeguard position. After reviewing Ms. Stavale's memo, the client manager still did not believe Keith could perform the job. Based on the advice from the client manager, Ms. Stavale revoked the offer of employment.
In 2008, Keith applied for and was denied another lifeguard position. Keith filed a complaint in the Michigan district court alleging violations of the ADA and the Rehabilitation Act. The County filed a motion for summary judgment arguing Keith was not "otherwise qualified" to be a lifeguard, because he could not effectively communicate with other lifeguards, patrons, emergency personnel, and injured persons. Keith responded he was "otherwise qualified", but the district court granted the County's motion. Keith appealed to the Sixth Circuit Court of Appeals arguing the district court erred on four points:
- The County did not make an individualized inquiry regarding his abilities;
- He is "otherwise qualified";
- His requested accommodations were reasonable; and
- The County failed to engage in the interactive process.
The Court first evaluated whether the County had conducted an individualized inquiry, which required consideration of the applicant's personal characteristics, his actual medical condition, and the effect, if any, the condition may have on his ability to perform the job in question. The Court stated, "The ADA requires employers to act, not based on stereotypes and generalizations about a disability, but based on the actual disability and the effect that disability has on the particular individual's ability to perform the job." The Court found Dr. Work made no effort to determine whether, despite his deafness, Keith could nonetheless perform the essential functions of the position, either with or without reasonable accommodation.
Next, the Court analyzed whether the ability to hear is an essential function of a lifeguard position. An individual is "otherwise qualified" if he or she can perform the "essential functions" of the job with or without reasonable accommodation. The Court held the ability to effectively communicate is an essential function of being a lifeguard for the County, and Keith had presented evidence that he can communicate effectively with a distressed swimmer, other lifeguards, patrons, and during emergency situations. Keith also presented evidence from experts with knowledge, education, and experience regarding the ability for deaf individuals to serve as lifeguards, that he was "otherwise qualified". In light of the evidence presented, the Court found the district court erred when it decided Keith's deafness disqualified him from the position as a matter of law.
In determining whether Keith's accommodations were objectively reasonable, the Court stated the question of reasonableness is generally a question of fact. In response to Keith's request to have an interpreter present during staff meetings and further classroom instruction, the Court stated, "[t]he inclusion of interpreters among the list of enumerated reasonable accommodations suggests to us that the provision of an interpreter will often be reasonable, particularly when the interpreter is needed only on occasion, in this instance, just staff meetings and training." The Court found the grant of summary judgment by the district court inappropriate because the County has not stated the accommodation would impose an undue hardship on the operation, and a reasonable jury could find the request for an interpreter during staff meetings and classroom instruction objectively reasonable.
Lastly, the Court turned to the ADA requirement that an employer engage in the interactive process. The purpose of the interactive process is to identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. Keith provided evidence that the County failed to contact or otherwise interact with him before revoking the offer of employment. The Sixth Circuit again found the district court's ruling erroneous, as Keith has met the burden to show that a reasonable accommodation was possible. Having found genuine issues of fact remaining as to whether Keith is otherwise qualified to be a lifeguard, with or without reasonable accommodation, the Sixth Circuit reversed the district court's ruling and remanded the case.
Key Points for Employers:
- Make sure your hiring personnel are familiar with the mandatory requirements of the ADA.
- Evaluate each disabled applicant based on his/her personal characteristics, actual medical condition, and the effect, if any, the condition will have on his/her ability to perform the job.
- Consider creating a list of essential functions for each job. This list can be used when starting to determine whether a person is "otherwise qualified" for the position.
- Evaluate all requested and any additional potential accommodations to determine whether any are reasonable and/or would cause an undue hardship.
- Communicate with the disabled prospective-employee to identify his/her precise limitations and the potential reasonable accommodations that could overcome those limitations.