Nicholas A. Keith v. County of Oakland,
U.S. Court of Appeals for the Sixth Circuit, 2013 U.S. App. LEXIS 595 (Jan. 10, 2013)
Whether assessments by a physician and an aquatic safety consultant were sufficient to determine whether a deaf job applicant was qualified for the position of lifeguard.
Nicholas Keith, who has been deaf since his birth, successfully completed the Oakland County, Mich., lifeguard training program with the assistance of an American Sign Language interpreter. He was hired for a lifeguard position with the county, contingent on passing a medical exam by a county-appointed physician.
Shortly thereafter, Keith was examined by Dr. Paul Work. When Work entered the examination room, he looked at Keith’s medical history and stated, “He’s deaf; he can’t be a lifeguard.” Work’s report described Keith as “physically sound except for his deafness” and stated that Keith could be a lifeguard only with “constant accommodation” (never identified) and that even such accommodation likely would not be adequate.
The county also consulted Wayne Crokus, an aquatic safety consultant who asserted Keith would pose a safety hazard. Although Crokus had a background in aquatic safety and lifeguard training, he had no education or experience regarding the ability of deaf people to work as lifeguards, and he did not conduct any research into the issue upon learning about Keith. He did not communicate, observe him during training, or speak with Work. Relying on the recommendations of Work and Crokus, county staff withdrew the job offer.
Keith sued, alleging the county violated the ADA. The district court granted the county’s motion for summary judgment, holding that although Work did not make an individualized inquiry, the county — the ultimate decision maker — did.
Reversing summary judgment, the Sixth Circuit held that genuine issues of material fact existed regarding whether the county had made an individualized inquiry to determine Keith’s ability to perform the job. The court observed that the county was willing to accommodate and hire Keith after making its own assessment by observing him during lifeguard training. However, it rescinded its offer based on the input of Work and Crokus, neither of whom made efforts to determine whether, despite his deafness, Keith could nonetheless perform the essential functions of the position, either with or without reasonable accommodation. The county’s adoption of these generalizations about the abilities of deaf people created a triable issue of fact regarding whether the county made an individualized inquiry regarding Keith’s ability to perform the job.
It may not be sufficient for an employer to rely on the conclusions of subject matter experts who have purportedly reviewed the abilities of a job applicant if the experts did not actually consider the job applicant’s unique abilities.