ADA, Sixth Circuit

The Sixth Circuit Reverses a District Court’s Summary Judgment that a Deaf Person is not “Otherwise Qualified” to Perform the “Essential Functions” of a Lifeguard

The Sixth Circuit recently decided an interesting case involving the Americans With Disabilities Act — a rare case in which an employer’s hiring decision literally could have life and death consequences.  In Keith v. County of Oakland, 6th Cir. No. 11-2276, 2013 WL 115647 (Jan. 10, 2013), the plaintiff, a deaf person, filed an action alleging that Oakland County, Michigan discriminated against him on the basis of disability in violation of the ADA and the Rehabilitation Act of 1973 when it refused to hire him as a lifeguard for its wave pool.

Factual Background

Plaintiff Keith was born deaf.  He communicates using American Sign Language (“ASL”).  In 2006, Keith enrolled in Oakland County’s junior lifeguard training course.  Oakland County provided an ASL interpreter to relay verbal instructions to him.  The interpreter did not assist Keith in performing life-saving exercises.  Keith successfully completed that course.

In 2007, Keith enrolled in Oakland County’s lifeguard training program.  With the assistance of an ASL interpreter for verbal communications, Keith successfully completed that course as well.

Upon completion of the lifeguard training program, Keith applied for a lifeguard position at Oakland County’s wave pool.  Like all job applicants, Keith was required to pass a medical examination.  Upon seeing Keith’s medical history, the doctor hired by the County stated, “He’s deaf.  He can’t be a lifeguard.”  However, the doctor approved Keith’s employment as a lifeguard, so long as his deafness was “constantly accommodated.”

After receiving the doctor’s results, the County contacted its aquatic safety and risk management consultants, Ellis & Associates.  Oakland County follows Ellis’s methodologies to train and test candidates for its lifeguard openings.  After discussing Keith’s application with employees of Oakland County, Ellis advised the County that “I don’t think you could safely have [Keith] on the [lifeguard] stand by himself.”  Ellis did not conduct any research regarding the ability of deaf people to work as lifeguards, never communicated with Keith, never observed Keith during training, and never spoke with the County’s doctor.

Based upon Ellis’s analysis, the County refused to hire Keith.

Oakland County’s Motion for Summary Judgment

Oakland County moved for summary judgment on Keith’s ADA and Rehabilitation Act complaint, arguing that (1) Keith is not “otherwise qualified” to be a lifeguard at its wave pool because he cannot effectively communicate with injured/distressed patrons, other lifeguards, and emergency personnel; and (2) hiring an interpreter to shadow Keith is an unreasonable accommodation.

Keith responded that:

  • He is “otherwise qualified” for the lifeguard position.
  • He would require an interpreter only during staff meetings and classroom instruction, which is a reasonable accommodation.
  • Oakland County failed to make an individualized inquiry regarding his ability to perform the job, and failed to engage in an interactive process to determine whether he could be reasonably accommodated.

Keith presented the testimony of three (3) experts in opposition to the County’s MSJ.  Expert 1 was a certified lifeguard training instructor with the American Red Cross.  She had certified more than 1,000 deaf lifeguards through the American Red Cross program.  She testified that there have been no reported incidents of drowning or near drowning of any individuals over whom a deaf lifeguard was responsible.  In fact, the world record for most lives saved by a lifeguard, 900, is held by a deaf man.

Expert 2 was a deaf lifeguard certified by the American Red Cross.  She testified that distressed swimmers exhibit visual signs of distress that a deaf lifeguard can detect.  She believed that deaf lifeguards do not require an interpreter.

Expert 3 was a physician specializing in pediatric neurodevelopmental disabilities.  She opined that deaf persons have the potential to be excellent lifeguards.  In a noisy swimming area, recognizing a potential problem is almost completely visually based.  Also, people who become deaf before age three, like Keith, have better peripheral vision than hearing individuals.

Notwithstanding the testimony of Keith’s experts, the district court granted summary judgment to Oakland County.  The court concluded that (1) the County had made an individualized inquiry regarding Keith’s abilities, and (2) Keith had failed to show that he could perform the essential communication functions of a lifeguard, with or without accommodation.

Sixth Circuit’s Reversal of the District Court

The Sixth Circuit reversed the district court’s grant of summary judgment to Oakland County, and remanded the case to the district court, holding (1) Oakland County had failed to conduct an individualized inquiry as to whether Keith’s deafness actually would prevent him from performing the duties of a lifeguard;  (2) reasonable minds could differ as to whether Keith is “otherwise qualified” to perform the essential functions of a lifeguard; and (3) the County had not shown that providing an interpreter while Keith was in lifeguard classroom instruction — but not in the lifeguard chair — was not a “reasonable accommodation.”

A.         Individualized Inquiry

The ADA requires an individualized inquiry in determining whether an applicant’s disability disqualifies him from a particular position.  The Sixth Circuit held that Oakland County and its consultants had failed to conduct the required individualized inquiry because “they never allowed Keith an opportunity to demonstrate his abilities.”  The County could not escape liability under the ADA by “mechanically” relying on the medical opinion of its doctor or the advice of its third-party consultant.

            B.         “Otherwise Qualified”

Under the ADA, a person is “otherwise qualified” if he can perform the “essential functions” of the job with or without reasonable accommodation.  No court before the Keith case had squarely addressed whether the ability to hear is an essential function of a lifeguard position.  However, Keith had presented substantial evidence, from which a jury could reasonably find, that he can communicate effectively as a lifeguard — that the ability to detect a distressed swimmer is purely a visual function.

C.        “With or Without Reasonable Accommodation”

When an accommodation is necessary to enable a plaintiff to perform the essential functions of a job, it is the plaintiff’s burden to propose an accommodation that is “objectively reasonable.”  An accommodation is reasonable if it is both effective and proportionate to costs.  It is the employer’s burden to establish that an accommodation that is reasonable for a normal employer “would break him.”

Keith showed that he could perform the essential functions of a lifeguard if Oakland County made minor, visual, adjustments in its procedures around the pool and provided him with an interpreter for the time lifeguards spent in classroom training.  He would not require an interpreter while in the lifeguard chair.  The County did not establish that providing a part-time interpreter would impose an undue hardship on the operation of its wave pool.

            D.        Interactive Process

The ADA requires an employer to engage in an interactive process with a disabled employee/applicant to identify the precise limitations from the disability and to effect a good faith exploration of possible accommodations.  Oakland County failed to discuss his disability with Keith before it revoked its offer of employment.  Had the County contacted Keith, it might have discovered that (1) Keith can hear loud noises with his cochlear implant; (2) his experts established that sight, not hearing, is necessary for effective lifeguarding; and (3) he would need an interpreter only for lifeguard classroom instruction.

Lessons To Be Learned

The Keith case should remind employers of a fundamental principle of the ADA — judgments as to whether a disabled applicant can perform the essential functions of a job must be based on empirical evidence.  An employer must not assume, from the applicant’s disability, precisely what functions the applicant can or cannot perform.  The applicant must be given an opportunity to prove what he can or cannot do.  The very point of the ADA is to prevent an employer from making employment decisions based upon its preconceived, and often unfounded, assumptions about what a disabled person cannot do.  Indeed, Oakland County denied Keith employment based on its preconceived notion — and more importantly, on the presumption of its third-party advisors — that a lifeguard needs to be able to hear to save distressed swimmers.  However, Keith provided substantial expert testimony that that common preconception is simply false.  Sight, not hearing, is essential to effective lifeguarding.  Oakland County might have reached that empirically-based conclusion had it researched the issue, or simply asked Keith.

The Keith decision can be found at

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