A recent decision from the U.S. 6th Circuit Court of Appeals (whose rulings apply to all Kentucky, Michigan, Ohio, and Tennessee employers) illustrates the importance of the interactive process when making employment decisions about a disabled worker. The court returned a previously dismissed Americans with Disabilities Act (ADA) claim to the lower court, in part because the employer made a decision regarding disability accommodations without consulting the disabled worker. 
Facts
Nicholas Keith was born deaf and is unable to speak. After receiving lifeguard certification from Oakland County, Michigan, he applied for a lifeguard position at the Oakland County wave pool in 2007. Katherine Stavale, Oakland County’s recreational specialist, offered Keith a lifeguard job conditioned on him passing a physical exam. Dr. Paul Work performed the exam. After looking at Keith’s medical records, Work stated, “He’s deaf; he can’t be a lifeguard.” He failed Keith because he didn’t believe he could function independently as a lifeguard.
After hearing from Work, Stavale placed Keith’s job offer on hold and called Ellis and Associates, an aquatic-safety and risk-management consulting firm. Ellis was concerned about a deaf individual’s ability to perform effectively as a lifeguard. It suggested conducting a job-task analysis to determine whether Keith could do the job with or without accommodations. Ellis consultants didn’t meet with or observe Keith, nor did they have experience with deaf individuals. Stavale prepared a six-page outline setting forth the accommodations she believed could successfully integrate him. She sent the outline to Ellis for feedback. When Ellis remained skeptical about Keith’s ability to be a lifeguard, the county rescinded the job offer.
Keith applied for another lifeguard job in 2008. He was told that his preemployment screening in 2007 disqualified him from consideration. Keith responded by filing a claim against the county alleging it violated the ADA. He provided expert and anecdotal testimony suggesting that deaf persons can and do serve effectively as lifeguards. The district court found that the county had made an individualized inquiry into Keith’s abilities and determined he wasn’t qualified for the position. Because he wasn’t qualified to be a lifeguard, the interactive process was unnecessary. The court dismissed the case, and Keith appealed.
6th Circuit revives claim
The ADA prohibits discrimination based on disability. However, an employer may treat a disabled individual differently if he is unable to perform the job with or without an accommodation or if the necessary accommodation would be unreasonable. On appeal, Keith argued that the district court was wrong in concluding the following:
- The county made an individualized inquiry regarding his abilities.
- He is unqualified to be a lifeguard.
- Accommodating him would be unreasonable.
- Any failure to engage in the interactive process was inconsequential because no reasonable accommodation was possible.
The 6th Circuit agreed with Keith’s arguments and returned the case to the district court for further litigation. The appellate court decided that the expert and anecdotal testimony Keith introduced was enough to create a question for a jury and prevented the case’s dismissal. More important, the court found that the county failed to make an individualized assessment and engage in the interactive process.
The ADA requires an individualized assessment of a disabled worker. Stereotypes and generalizations are exactly the conduct the Act is meant to eliminate. Work and Ellis made generalizations about Keith without looking at what he could and couldn’t do or what accommodations, in his opinion, were possible. The county made an inquiry, but the 6th Circuit was dissatisfied with its reliance on Work’s and Ellis’ opinions.
The ADA requires an employer to communicate with a disabled worker and make a good-faith exploration into possible accommodations. The county failed to interact with Keith before revoking his employment offer. He claimed that had the county contacted him, it would have learned that he can detect loud noises through his cochlear implant. Additionally, he could have referred county representatives to various individuals with expertise about the ability of deaf individuals to work as lifeguards.
The district court will reexamine the case based on the 6th Circuit’s decision. Now, instead of Keith’s claim being dismissed, it might make it all the way to a jury. Keith v. County of Oakland, 2013 WL 115647 (6th Cir., 2013).
Sink or swim
This case offers a couple of lessons for employers:
- Review each person individually. The ADA was created to end stereotypes and generalizations. Each person, even those with similar or identical disabilities, requires an individualized assessment. Painting with a broad brush (e.g., believing that anyone who is deaf can’t perform a particular task) will help employees keep discrimination claims alive far longer.
- Engage in the interactive process. Not only does each person need an individualized assessment, but employers also should engage prospective employees in the assessment. Keith could have put some of the county’s fears to rest if it had reached out to him with its concerns. Instead of explaining to the county how he can be an effective lifeguard, he now may get a chance to explain to a jury how he would have been an effective lifeguard.
Brandon Gearhart is an associate in Frost Brown Todd’s Louisville, Kentucky, office, where he serves his clients in all matters involving labor and employment. You may contact him at bgearhart@fbtlaw.com.