County May Be Liable for Blocking Deaf Lifeguard

     CINCINNATI (CN) – A Michigan county may have discriminated against a deaf man it refused to hire amid accommodation concerns, the 6th Circuit ruled.
     Nicholas Keith, who has been deaf since his birth in 1980, applied for a lifeguard position with Oakland County after getting certified in 2007.
     Though Oakland initially offered Keith a part-time lifeguard position at its wave pool, Keith failed his pre-employment physical based on his deafness.
     Dr. Paul Work told Keith’s mother, “I have to [fail Keith]. I have a house and three sons to think about. If something happens, they’re not going to sue you, they’re not going to sue the county, they’re going to come after me.”
     To help Keith get the job, the county recreation specialist drew up a seven-point accommodation plan for Ellis & Associates, risk-management consultants that guide the Oakland lifeguard-training program.
     The proposed accommodations did not persuade the consultant that it would be safe to hire Keith, however, and the county revoked the employment offer.
     Keith sued for violations of the Americans With Disabilities Act and the Rehabilitation Act, but a federal judge in Detroit granted the county summary judgment.
     A three-judge panel of the 6th Circuit reversed last week.
     “Ellis’s representatives never spoke with Dr. Work, they never met Keith, and they never allowed Keith an opportunity to demonstrate his abilities,” Judge Richard Griffin wrote for the panel. “Although knowledgeable in aquatic safety, they have no education, training, or experience regarding the ability of deaf individuals to work as lifeguards. Indeed, the representatives testified that they could not provide an opinion regarding Keith’s ability to perform the essential functions of the position without seeing him in the actual work environment with the proposed accommodations in place.”
     The trial court had noted that Keith sued only Oakland County, and that the county made an individualized inquiry as to Keith’s suitability for the position.
     Though the appellate court conceded this issue, it noted that the county had also observed Keith’s abilities during lifeguard training, and had proposed accommodations to integrate Keith into the lifeguard team.
     “Both staff and management were on board with the plan to hire Keith,” Griffin wrote. “That being the case, we question what changed? Did Oakland County alter its assessment based on Dr. Work’s report and the advice of Ellis’s representatives? If so, did Oakland County’s individualized inquiry satisfy the ADA’s mandate? Because it strikes us as incongruent with the underlying objective of the ADA for an employer to make an individualized inquiry only to defer to the opinions and advice of those who have not, we direct the district court to consider these questions on remand.” Keith was “otherwise qualified” for the position of lifeguard and could perform all of the functions essential to the job, the court found.
     “With regard to supervising water activities and lifesaving, Keith has presented evidence from which a jury could reasonably find that he can communicate effectively despite his deafness,” Griffin wrote. “Like other lifeguards, Keith can adhere to the ’10/20 standard of zone protection,’ a scanning technique taught to lifeguards in which they must scan their entire zone every ten seconds and be able to reach any part of their zone within twenty seconds. This method is purely visual.”
     “Likewise, Keith has presented evidence that he can enforce safety rules,” he added. “Verbal enforcement is usually impractical in a noisy water park, and most lifeguards rely on their whistle and various physical gestures, including shaking their head ‘no’ for patrons to stop engaging in horseplay, motioning their hand backward for a patron to get behind the red line, and signaling the number one with their finger for ‘one person per tube.’ Keith can use these same methods of enforcement.”
     The panel found that “perhaps the most compelling evidence that Keith is ‘otherwise qualified’ comes from his experts who have knowledge, education, and experience regarding the ability of deaf individuals to serve as lifeguards. They all opine that the ability to hear is unnecessary to enable a person to perform the essential functions of a lifeguard. The world record for most lives saved is held by a deaf man, Leroy Colombo, who saved over 900 lives in his lifeguarding career. One also cannot ignore that the American Red Cross certifies deaf life guards, and Gallaudet University, the only liberal arts university in the world dedicated to serving the needs of deaf individuals, has a lifeguard certification program.”
     Accommodations proposed for Keith – which included having an ASL interpreter at staff meetings and carrying laminated cards in his pocket to communicate with patrons – do not place an undue burden on the county, the ruling states.
     The panel declined to apply circuit precedent from the 1999 case Bratten v. SSI Services Inc., which involved an automotive mechanic with back injuries who lost his job when he was unable to perform the job’s essential function of lifting tasks.
     “Accommodating the plaintiff would have required other employees to perform as much as twenty percent of the plaintiff’s lifting duties, which the court sensibly indicated would be unreasonable,” Griffin wrote. “In this case, however, Keith presented evidence that he can perform the essential communication duties of a lifeguard … through modifications that do not require shifting responsibility onto other lifeguards.”
     Remanding the case for further proceedings, the panel said summary judgment was inappropriate “because Oakland County has not argued, much less conclusively shown, that providing the accommodation would impose an undue hardship on the operation of its business.”

%d bloggers like this: