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Keith v. County of Oakland, No. 11-2276 (6th Cir. Jan. 10, 2013)

Here's a case that might make even stalwart advocates of civil rights re-examine their prejudices. The Sixth Circuit reverses summary judgment in case claiming that a village violated its duties under the ADA and Rehabilitation Act when it rejected a candidate for a lifeguard position on the ground that he is deaf. The panel finds that it will be up to a jury to determine whether the candidate could have performed the essential duties of lifesaving with accommodations. It turns out that there is a long and distinguished history of deaf lifeguards in the US.

Keith v. City of Oakland, No. 11-2276 (6th Cir. Jan. 10, 2012): The plaintiff, Keith, completed training and certification as a lifeguard and received a conditional offer to work at a county-run wave pool. Only when a pre-employment physical revealed that Keith was deaf was the offer suspended:

"Shortly thereafter, Keith was examined by Dr. Paul Work, D.O. When Dr. Work entered the examination room, he looked at Keith's medical history and stated, 'He's deaf; he can't be a lifeguard.' Keith's mother asked Dr. Work, 'Are you telling me you're going to fail him because he's deaf?' Dr. Work responded, 'Well, I have to. 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.'"

The county put the question of hiring Keith to Ellis & Associates, "a group of aquatic safety and risk management consultants that provides guidance to Oakland County regarding its water park facilities and lifeguard training program." They recommended testing Keith under the same standards used for other employees to see if he could perform the job with or without accommodations. The village recreation specialist (named Stavale) even generated a list of possible accommodations. Ultimately, though, Ellis & Associates remained unconvinced that Keith could function effectively as a lifeguard, even though the consultant never actually examined the applicant, and the county withdrew the offer.

While the district court held that the county did not violate the ADA or Rehabilitation Act, allegedly because no accommodation was reasonably possible, the Sixth Circuit reverses. It holds that Keith presented sufficient evidence to raise a genuine issue of his fitness to serve as a lifeguard.

Among Keith's expert witnesses, one testified that deaf lifeguards are far from rare:

"She [expert Marchitelli] 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."

Another expert testified that, "in a noisy swimming area, recognizing a potential problem is almost completely visually based. Further, she said that individuals who become deaf before age three have better peripheral vision than hearing individuals."

The district court held, and the Sixth Circuit affirms, that the county failed to perform an individualized determination of Keith's fitness to work as a lifeguard, whether with or without accommodations. The decision not to hire Keith was, by Dr. Work's (alleged) admission, based solely on Keith's deafness. Ellis & Associates, in turn, "never spoke with Dr. Work, they never met Keith, and they never allowed Keith an opportunity to demonstrate his abilities."

If anything, the county might have been guilty of applying a higher standard of performance to Keith because of his deafness:

"[W]hen corresponding with Stavale about ways to incorporate Keith into the lifeguard team, an Ellis representative asked whether Keith would be able to perform perfectly '100 percent of the time.' As Stavale acknowledged, that is an impossible standard to expect of any lifeguard. Individuals with disabilities cannot be held to a higher standard of performance than non-disabled individuals."

Even though the county itself performed an individual inquiry, going so far as to draw up an accommodation plan, the Sixth Circuit observes that it ultimately followed the recommendations of the doctor and consultant, who allegedly made no individualized inquiry:

"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."

Moreover, assuming that communication is an essential function of the job of being a lifeguard, the panel holds that there is a genuine issue of fact whether Keith could perform this task with accommodations. "In addition to communicating with distressed swimmers, there is evidence that Keith can effectively communicate with other lifeguards during lifesaving. Because he cannot hear another lifeguard's whistle blow before going in for a save, as a modest modification, he could briefly look at the other lifeguards when scanning his zone."

Moreover, a small modification to the Emergency Action Plan ("EAP") might actually improve safety for all:

"Keith has also presented evidence that he can communicate effectively during emergencies with a modification to the EAP. To activate the EAP, lifeguards would signal with a fist in the air, opening and closing their fist in repetition. According to Stavale, this would improve the EAP for everyone, not just Keith. It would allow other lifeguards and staff to see the EAP visually if they are not in a position to hear it. Once activated, other lifeguards who are required to maintain their position would put their fist in the air and make the same signal."

Finally, every expert to testify in the matter concluded that "the ability to hear is unnecessary to enable a person to perform the essential functions of a lifeguard."

The panel also remands the question of whether the county engaged in an "interactive process."

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