Let's wade out into deep water today: Does an applicant for a lifeguard position state a claim under the Americans With Disabilities Act if he is rejected because he is deaf? According to the 6th U.S. Circuit Court of Appeals, he does.
In Keith v. County of Oakland, the appellate court reversed the trial court’s grant of summary judgment. Here's the scoop the Jan. 10 decision sets out: The county, knowing that applicant Nicholas Keith had been deaf since birth, offered him the position, conditioned on passing a physical. The doctor, allegedly afraid of being sued, stated that he would only approve the hiring if the applicant is “constantly accommodated.” The county gets worried, consults with a company specializing in aquatic safety and discusses possible accommodations to the deafness. The expert opines that, “without 100% certainty that [the proposed accommodations] would always be effective, I don't think that you could safely have [Keith] on the stand by himself.”
The offer is yanked, the suit follows and the trial court grants summary judgment. But the 6th Circuit says: Not so fast.
Where’s the issue of material fact? The plaintiff offered the expert testimony of several individuals knowledgeable in both aquatic safety and the ability of deaf individuals to work as lifeguards.
Other points also concerned the appeals court. The expert asked the county whether the applicant would be able to perform perfectly “100% of the time.” Framing the question this way guarantees yanking the job offer. This is an impossible standard. Plus it’s being imposed on the plaintiff because he is deaf.
Here is another issue: The county went on autopilot after talking to the consultant; it did not go back to the plaintiff to discuss its concerns. The court writes: "[H]ad Oakland County communicated with [the plaintiff], he could have referred Oakland County to various individuals with expertise regarding the ability of deaf individuals to work as lifeguards, which may have dispelled unfounded fears and resulted in a more informed decision.”
Bottom line: The ADA mandates — no ifs, ands or buts — an individualized inquiry into whether a person covered by the law can do the job, with or without a reasonable accommodation. Yes, it takes time, effort and often money (i.e. experts). But it's the law.