Deaf Applicant For Lifeguard Can Sue Employer For Failed ADA Interactive Process

The Sixth Circuit Court of Appeals refused to dismiss a case involving a deaf applicant for a position as a lifeguard, saying the ability to hear is not necessarily an essential function of a lifeguard position. Keith v. County of Oakland (6th Cir. 2013). 

Nicholas Keith successfully passed Oakland County, Michigan’s junior lifeguard training course, and its lifeguard training program a year later. When he applied for a part-time position with the county as a lifeguard, he was offered a position, if he passed the physical. Upon learning that Keith was deaf, the doctor performing the physical said that Keith was unable to work as a lifeguard. Oakland County rescinded the offer of employment. Keith sued under the Americans with Disabilities Act and the Rehabilitation Act.

Oakland County moved to have the case dismissed, saying Keith was not a qualified individual since he cannot hear. Keith argued that he was qualified.  He said that he was able to perform most functions without accommodation, as lifeguarding is a job primarily requiring visual skills. He also said that could perform all other essential functions with reasonable accommodations, such as carrying laminated notecards to communicate with pool patrons in non-emergency situations. 

Although the lower court dismissed the case, the Sixth Circuit reinstated it on appeal, saying a reasonable jury could find that Keith was a qualified individual, based on his testimony and the testimony of three experts he presented. The court also said that the county may not have conducted an individualized inquiry, and may not have effectively engaged in the interactive process.

This case reminds employers to assess each individual with a disability separately. And, not to make assumptions about an individual’s abilities based on a particular disability. Instead, the interactive process involves employers taking time to understand an individual’s disability, its impact on the applicable job, and any potential accommodations that will allow the individual to perform the job’s requirements. Reasonable accommodation may include looking at different ways that the job can be done other than the customary way.