Yesterday, the United States Court of Appeals for the Sixth Circuit issued an opinion in Keith v. County of Oakland, ___ F.3d ___, 2013 WL 115647 (6th Cir., Jan. 10, 2013). Keith, the plaintiff, applied to work as a lifeguard at a wave pool operated by Oakland County, Michigan (an excellent wave pool, by the way -- my kids and I enjoy it very much!). Keith has been deaf since birth. Although he can detect noises through a cochlear implant, he principally communicates by using American Sign Language. Keith completed lifeguard training (using an ASL interpreter to relay verbal instructions to him, but not to assist him with lifesaving tasks) and was certified as a lifeguard. He applied for a lifeguard position at the wave pool. The County extended him an offer of employment conditioned on passing a medical examination. The examining doctor approved Keith for employment, but only "if his deafness was 'constantly accommodated.'"

After these discussions, Stavale prepared a six-page outline setting forth the accommodations that she believed could successfully integrate Keith, and she sent it to Crokus for feedback. Stavale explained:

Keith will carry laminated note cards in the pocket of his swim trunks to communicate with guests in non-emergency situations. Keith does not need to hear to recognize and rescue a distressed swimmer; experience reveals that distressed swimmers do not cry out for help. Keith will use his whistle and shake his head “no” to enforce pool rules. Keith will briefly look at other lifeguards on duty when scanning his zone to see if they enter the pool for a save. Because Keith cannot use the megaphone or radio, another lifeguard will have this responsibility when Keith is working. Keith will not work the slide rotation, which should not be a problem because this is one of the favorite rotations and many lifeguards like to work more than one slide rotation. The Emergency Action Plan (“EAP”) will be modified, regardless of whether Keith is scheduled. To initiate the EAP, lifeguards will be required to signal with a fist in the air, opening and closing it like a siren. This will accommodate Keith and improve the effectiveness of the EAP for the entire team. Crokus questioned Stavale on several of these accommodations and remained concerned about Keith’s ability to function effectively as a lifeguard. He stated, “without 100 percent certainty that [the proposed accommodations] would always be effective, I don’t think you could safely have [Keith] on the stand by himself.” Ultimately, Stavale and her supervisors decided to revoke the offer of employment.

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."





Next, in the most significant part of its opinion, the court of appeals concluded that Keith had presented sufficient evidence to create a triable issue regarding whether he could perform the essential functions of the lifeguard position. I'll quote it extensively to show what a good job the plaintiff's lawyer did here:

With regard to supervising water activities and lifesaving, Keith has presented evidence from which a jury could reasonably find that he can communicate effectively despite his deafness. Like other lifeguards, Keith can adhere to the “10/20 standard of zone protection,” a scanning technique taught to lifeguards in which they must scan their entire zone every ten seconds and be able to reach any part of their zone within twenty seconds. This method is purely visual. Further, by passing Oakland County’s lifeguard training program and earning his lifeguard certification, Keith demonstrated his ability to detect distressed swimmers, which several experts testified is almost completely visually based.



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.



Likewise, Keith has presented evidence that he can enforce safety rules. 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.” Keith can use these same methods of enforcement.



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.



Further, Keith 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. In addition, staff members are required to respond whenever a whistle is blown to signal a save.



Perhaps the most compelling evidence that Keith is “otherwise qualified” comes from his experts who have knowledge, education, and experience regarding the ability of deaf individuals to serve as lifeguards. They all opine that the ability to hear is unnecessary to enable a person to perform the essential functions of a lifeguard. The world record for most lives saved is held by a deaf man, Leroy Colombo, who saved over 900 lives in his lifeguarding career. One also cannot ignore that the American Red Cross certifies deaf lifeguards, and Gallaudet University, the only liberal arts university in the world dedicated to serving the needs of deaf individuals, has a lifeguard certification program.

Finally, the court of appeals concluded that Keith had presented sufficient evidence that a reasonable accommodation was possible, and it directed the district court to consider on remand whether the County had properly engaged in an interactive process with him.





It's not easy to win a case on behalf of a plaintiff with a disability seeking a public safety job.

This is a very significant victory for a deaf plaintiff against what seems to have been a reflexive and stereotype-infused exclusion.





The County's recreation specialist, Katherine Stavale, contacted a risk management consultant, Wayne Crokus, to discuss whether Keith's deafness could be safely accommodated. The court's opinion describes what happened next:Keith sued under the ADA and the Rehabilitation Act. Although Keith offered an impressive array of expert evidence tending to demonstrate that his deafness would not impair his ability to perform the duties of a lifeguard, the district court granted the County's motion for summary judgment.The Sixth Circuit reversed. The appellate court first concluded that neither the County's doctor nor its risk consultant made an individualized inquiry into the nature of Keith's particular limitations and the possibility of accommodation. It therefore questioned the district court's conclusion that the County had itself made a sufficiently individualized inquiry: "

Labels: Appellate Cases, Employment