Sixth Circuit: Possible ADA Liability When Employer Revoked Job Offer to Deaf Lifeguard For Relying on Experts and Failing to Engage in Interactive Process on Possible Reasonable Accommodation

Earlier this month, the Sixth Circuit Court of Appeals reversed summary judgment in favor of an employer who had revoked a job offer to a deaf lifeguard because of his inability to “effectively communicate with other lifeguards, patrons, emergency personnel, and injured persons.”  Keith v. County of Oakland, No. 11-2276 (6^th Cir. 1-10-13).  While the Court agreed that communicating was an essential job function, it found that the plaintiff produced enough evidence for a jury to find that he could safely perform the job duties with a reasonable accommodation and that the employer’s subjective, “valid concerns” did not constitute an undue hardship.  Of note to employers, however, were two other conclusions of the Court.  First, the Court found that the employer could be liable for revoking the plaintiff’s job offer even though it conducted an individualized assessment of the plaintiff’s ability to perform the job because in revoking the job offer it relied on the opinions of a physician and aquatic safety consulting firm which had not conducted an individualized assessment.  Second, the Court implied that it could be an independent violation of the ADA for the employer to have failed to engage in the interactive process with the plaintiff before revoking his job offer.  Finally, like other decisions before it, the Court reiterated that the employer may not hold a disabled individual to an impossibly higher – 100% certainty – performance standard than it holds nondisabled individuals.

According to the Court’s opinion, the plaintiff had been deaf since birth. Although he could hear many sounds – including his name – with a cochlear implant, he could speak and communicated through American Sign Language.   During his lifeguard training courses, he required an interpreter to be present to relay verbal instructions, but performed his own lifesaving tasks and successfully completed the course.   He then applied for a lifeguard position, which required only that he pass the course, be above a certain age and pass a medical examination.   The only accommodation he requested to perform the job was that an interpreter be present for staff meetings and continuing education.   He was offered a lifeguard position, contingent on him passing the medical examination.

The evidence showed that the doctor hired to evaluate the plaintiff refused to unconditionally pass him solely because he was deaf and because the doctor might be sued if someone was harmed by the plaintiff’s hearing impairment.  The medical report indicated that the plaintiff could only safely perform the lifeguard duty if he was constantly accommodated (and not just at staff meetings).  The defendant employer then contacted the aquatic safety and risk management consulting firm it utilized to suggest accommodations.  The consulting firm – which had an extensive background in aquatic safety, but no experience or education in hearing impairments – suggested that a task analysis be performed, that research be conducted about the implant and that the implant be assessed for utility in actual conditions (i.e., with  lots of noisy and screaming kids in the background).  It explained that it could not provide a definitive answer without better familiarity with the plaintiff or the particular swimming facility.  The employer created a list of possible accommodations (which noted that hearing distressed swimmers was not an essential function because they typically do not make noise and which permitted the plaintiff to communicate with swimmers with his whistle, nods and laminated note cards).   Nonetheless, the consulting firm did not think that the accommodations could guarantee with 100% certainty that the plaintiff would always be effective as a lifeguard.  Thereafter, the defendant employer revoked the job offer.

The plaintiff filed suit under the ADA and Rehabilitation Act on the grounds that he was not hired because of unfounded fear and speculation.  He also objected to the defendant’s failure to conduct an individualized assessment of his ability to safely perform the job or to engage in the interactive process to determine the best reasonable accommodation.   The employer asserted that he was not hired because “he could not effectively communicate with other lifeguards, patrons, emergency personnel, and injured persons” and that “hiring an additional lifeguard as an interpreter is an unreasonable accommodation.”

The case boiled down to the type of experts which each party utilized.  The plaintiff submitted a deaf lifeguard certified by the American Red Cross.  He also used experts with hearing disabilities and aquatic safety.  For instance:

Anita Marchitelli has worked with deaf people in the area of lifeguarding and aquatics for more than thirty years. She is a certified lifeguard training instructor with the American Red Cross in the areas of lifeguarding, water safety, and CPR. She is also an associate professor in the physical education and recreation department at Gallaudet University, the only liberal arts university in the world dedicated to serving the needs of deaf individuals. She has certified more than 1,000 deaf lifeguards through the American Red Cross programs. According to Marchitelli, there have been no reported incidents of drowning or near drowning of any individuals over whom a deaf lifeguard was responsible. It is her professional opinion that the ability to hear is unnecessary to enable a person to perform the essential functions of a   lifeguard. In her affidavit, Marchitelli notes that the world record for most lives saved is held by a deaf man, Leroy Colombo, who saved over 900 lives in his lifeguarding career.

The district court excused the employer’s failure to engage in the interactive process because such a failure does not constitute an independent violation of the ADA and because the plaintiff failed to show that he could safety perform the essential job functions with or without a reasonable accommodation.  While the district court concluded that the physician failed to conduct an individualized assessment of the plaintiff’s abilities, the court concluded that the employer had made its own individualized assessment.  

On appeal, the Sixth Circuit first addressed the issue of whether the employer conducted the mandatory individualized assessment.  While it ultimately agreed with the district court that the employer had done so, it remanded the case back to the trial court to consider whether the employer’s individualized assessment was sufficient when it revoked the job offer in reliance on the opinions of a physician and aquatic safety experts who had not conducted the required individualized assessment.

As a threshold matter, “[t]he ADA mandates an individualized inquiry in determining whether an [applicant’s] disability or other condition disqualifies him from a particular position.” Holiday, 206 F.3d at 643. A proper evaluation involves 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 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 agreed that the physician failed to conduct an individualized assessment. He made no attempt to evaluate whether the plaintiff could perform the job duties with his disability.  He also had no training or experience in assessing the ability of deaf individuals to work as lifeguards.  His “cursory medical examination is precisely the type that the ADA was designed to prohibit.”

The Sixth Circuit also expressed concern with the assessment of the consulting firm.  While it had acknowledged that it could not provide an opinion without an individualized assessment, its “suggestions” that the employer needed 100% certainty about the plaintiff’s ability to safely perform the job was “an impossible standard to expect of any lifeguard. Individuals with disabilities cannot be held to a higher standard of performance than non-disabled individuals.”

 Nonetheless, the Sixth Circuit agreed that the employer had made an appropriate individualized assessment of the plaintiff’s abilities.  The employer had observed the plaintiff’s abilities “during lifeguard training, accommodations were proposed to integrate [the plaintiff] into the lifeguard team, and both staff and management were on board with the plan to hire” the plaintiff.  The problem was, however, that the employer disregarded its own individualized assessment and deferred instead to the two outside “experts” which had failed to conduct an individualized assessment.

 The Court then turned to whether hearing was an essential job requirement of a lifeguard.   After reviewing evidence, including job descriptions, testimony and postings, the Court agreed that communicating was an essential function (for enforcing rules and teaching lessons).  Nonetheless, the Court found there to be sufficient evidence to present to a jury as to whether the plaintiff could adequately perform the essential job duties with a reasonable accommodation.   The duty to detect distressed swimmers is almost entirely visual.  Although the plaintiff admitted could not hear another lifeguard blow a whistle before saving a swimmer, “as a modest modification, he could briefly look at the other lifeguards when scanning his zone.”  Although the plaintiff could not speak (let alone yell) at swimmers, the Court found his ability to communicate was sufficient:  

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.” [The plaintiff] can use these same methods of enforcement.

             . . .

Further, [the plaintiff] has presented evidence that he can respond to patrons who approach him, at least at a level that may be considered essential for a lifeguard. He would carry a few laminated note cards in the pocket of his swim trunks with basic phrases such as, “I am deaf. I will get someone to assist you. Wait here.” He can also provide first aid in situations in which he can see the ailment requiring attention. Although there may be situations in which verbal communication is necessary, attendants are posted throughout the water park to assist patrons with basic needs and inquiries, suggesting that this is not an essential function of lifeguards, or at least reasonable minds could differ on this point.

The Court concluded that these could be reasonable accommodations because they were effective and cost proportionally little.  In evaluating whether an accommodation is (objectively) reasonable or poses a (subjective) undue hardship, courts conduct the following analysis:

When accommodation is necessary to enable a plaintiff to perform the essential functions of the position in question, it is the plaintiff’s burden to propose an accommodation that is “objectively reasonable.”  . . . . In defining what is reasonable, this court “has described the employee’s initial burden on this issue as showing ‘that the accommodation is reasonable in the sense both of efficacious and of proportional to costs.’”  . . .  The employer can then “escape liability if he can carry the burden of proving that a disability accommodation reasonable for a normal employer would break him.”  . . .  As stated by other circuits, the reasonable accommodation inquiry asks whether an accommodation “is reasonable in the run of cases, whereas the undue hardship inquiry focuses on the hardships imposed by the plaintiff’s preferred accommodation in the context of the particular [employer’s] operations.” (citations omitted).

While the Court acknowledged the employer’s “valid concern” with the reallocation of responsibilities to other lifeguards, this alone could not justify granting summary judgment on an undue hardship defense because the ADA requires job restructuring as a reasonable accommodation.  While the ADA does not require the reallocation of essential job duties, marginal job duties must be restructured when necessary.  In this case, the potential shifting of some duties was possibly minimal enough that a jury could determine that they were not essential job functions.  In addition, the plaintiff’s need for an interpreter during staff meetings and continuing education is a typical reasonable accommodation which the employer failed to show posed an undue hardship.

[T]he ADA provides that “reasonable accommodation” may include “the provision of qualified readers or interpreters.” 42 U.S.C. § 12111(9). The 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 for staff meetings and training. In fact, there are numerous cases in which courts have found that the provision of an interpreter during staff meetings and training sessions presented a question of fact for the jury on the issue of reasonableness.

Finally, the Sixth Circuit remanded the case back to the trial court to consider the employer’s failure to engage in the interactive process with the plaintiff before revoking his job offer.   Had the employer engaged in the interactive process, it might had learned information about the plaintiff’s disability and implant (as summarized above) which would have alleviated the concerns of its “experts” (who had failed to conduct an individualized assessment and lacked education or training in hearing impairments).   In so remanding the case, the Sixth Circuit implicitly rejected the trial court’s conclusion that an employer cannot be held liable for failing to engage in the interactive process. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.