Human Resources News & Insights

ADA: Was it firm’s fault that experts’ opinions were wrong?

This organization did everything it was supposed to do when trying to accommodate a disabled applicant. So why did it lose this disability bias case?

Here are the details of the case:

Nicholas Keith was born deaf, but can detect noises such as alarms, whistles and people calling out to him via a cochlear implant. He communicates primarily via sign language.

In 2006 and 2007, Keith successfully completed Oakland County’s junior lifeguard and adult lifeguard training courses. A sign language interpreter relayed verbal instructions to him, but didn’t assist Keith during lifesaving tasks.

Keith then applied for a lifeguard position at Oakland County’s wave pool. The county’s recreation specialist offered Keith a position after clearing it with her supervisors.

He would have to be ‘constantly accommodated’

But when Keith underwent a medical examination that was part of the hiring process, the doctor said he didn’t believe Keith could function independently as a lifeguard, and he could only work as part of a team if he was “constantly accommodated.”

The county put Keith’s employment on hold and reached out to a group of aquatic safety and risk management consultants to get their opinion. The county put together a six-page outline setting forth accommodations that could work for Keith, but the two consultants were still concerned with his ability to detect a distressed swimmer and function as a lifeguard.

The kicker: Neither consultant had any education, training or experience with deaf people as lifeguards. Neither of them conducted any research on the subject either.

The county then withdrew its offer of employment, and it turned down Keith’s application for another position the following year.

‘Experts’ made the difference

So Keith sued, claiming disability bias under the Americans with Disabilities Act (ADA).

The county argued that Keith wasn’t qualified to be a lifeguard because he “couldn’t effectively communicate with other lifeguards, patrons, emergency personnel, and injured persons.” Further, the county argued that hiring an additional lifeguard as an interpreter qualified as an unreasonable accommodation.

Keith countered that the county withdrew its job offer based on “unfounded fear and speculation” and that he would only need an interpreter during staff meetings and classroom instruction.

A district court ruled in favor of the county, but on appeal a circuit court ruled in Keith’s favor, sending the case to trial.

Why? Keith cited a number of experts who had experience and training regarding deaf people serving as lifeguards. One even noted that in a noisy swimming area, lifeguards are more likely to see a potential problem than hear it.

Relied on the wrong people

Where did the county go wrong in this case? The court praised its initial interactive process with Keith, especially in the way it drew up a list of ways he could be accommodated.

But by following the advice of people who had no experience determining if a particular impairment prevented someone from doing the job in question, the county very well may have violated the law. Now, it’s up to a jury to find out.

Maria Danaher from Ogletree Deakins put it best on the Employment Law Matters site:

“… any employer relying on input from a third party to assess the reasonableness of accommodations requested by an employee or applicant should determine whether the input was obtained from an individualized assessment, or was simply based upon assumptions and non-specific information. Without an individualized review by the consultant, the employer could lose the benefit of its own initial participation in the required interactive process.”

The case is Keith v. County of Oakland.

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