The Employer's Legal Resource: ADA Accommodation Assumptions - Bad Idea!
While the EEOC would like employers to assume an impairment is disability and move directly to engaging in the interactive accommodation process, a new 6th Circuit U.S. Court of Appeals case, Keith v. County of Oakland (Jan. 10, 2013), highlights the risk of making employment decisions based on assumptions in the interactive accommodation process. Don't assume a job function is truly essential and don't assume your third-party expert has the requisite expertise or conducted a demonstrably thorough "individualized inquiry" regarding the relevant accommodation issues.
Deaf since birth, Nicholas Keith communicated principally through sign language. He took and passed Oakland County, Michigan's junior lifeguard training course with the help of a sign language interpreter. Keith also passed the County's lifeguard training course with the aid of an interpreter. When he applied for a lifeguard position at the County's wave pool, he requested that an interpreter be provided at staff meetings and any future classroom training. The County offered Keith the job subject to passing a pre-employment physical exam. At the exam, the County's doctor reviewed Keith's medical history and bluntly declared to Keith's mother, "He's deaf; he can't be a lifeguard." The County placed the offer on hold and called its aquatic safety/risk management consultant to evaluate possible accommodations. Significantly, neither the doctor nor t he consultant had any education, training, or experience regarding the ability of deaf people to work as lifeguards. The County prepared a six-page outline of proposed accommodations it believed would be reasonable and could enable Keith to successfully do the job. The consultant, however, expressed concern about Keith's ability to do the job "without 100 percent certainty that [the proposed accommodations] would always be effective," a standard the County admitted would be impossible for anyone to meet. Nonetheless, the County revoked the offer without discussing the concerns with Keith or allowing him an opportunity to respond.
Keith sued, claiming the County refused to hire him due to "unfounded fear and speculation" concerning his disability. Keith argued the County should have made an individualized inquiry into his qualification for the job in order to fulfill its duty to engage in the interactive accommodation process instead of relying on the generalized assumptions of the doctor and consultant. Granting summary judgment for the County, the district court held that although the doctor's exam did not constitute the "individualized inquiry" required by the ADA, the County's own inquiries did. The court also ruled that Keith failed to show he could perform the "essential communication functions," justifying the County's decision to revoke the offer.
On appeal, the Sixth Circuit reversed the district court, concluding that fact questions existed for a jury to resolve regarding two assumptions made by the County. Assumption No. 1-that the communication functions were truly essential. Assumption No. 2-that the County fulfilled its duty to engage in an individualized interactive accommodation process. In contrast to the County's doctor and consultant, Keith relied on highly qualified and relevant expert testimony from (1) a certified training instructor who worked with deaf individuals in the field of lifeguarding and aquatics and had certified over 1,000 deaf lifeguards; (2) a deaf lifeguard certified by the American Red Cross who testified that deaf lifeguards can do the job without accommodation; and (3) a doctor specializing in neurodevelopmental disabilities with over 30 years working with hearing impaired individuals who testified that in a noisy swimming area like a wave pool, recognizing a potential problem is almost completely visually based, deaf people have a wider peripheral vision than others, and Keith's deafness should neither disqualify him as a lifeguard nor require constant accommodation.
While the Sixth Circuit believed the County had initially engaged in the interactive process with Keith by developing a list of ways he could be reasonably accommodated, the court expressed serious concern about the County's decision to rescind the offer after receiving generalized advice from its consulting firm. Regarding the adequacy of the County's interactive process, the Court emphasized: "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 [the question of why the County rejected Keith's requested accommodation] on remand." In other words, the Sixth Circuit seemed to wonder if the County did indeed base its revocation on "unfounded fear and speculation" raised by the doctor and consulting firm, which is precisely what the ADA is designed to combat.
The message for employers is plain. When engaging in the interactive accommodation process, don't assume essential functions are truly essential without careful, demonstrable confirmation, because it's a costly question of fact for a jury to decide, not a judge on summary judgment. Second, make sure you and your expert(s) conduct an individualized inquiry into the ability of the specific employee at hand to perform the essential functions of the job with or without a reasonable accommodation. The County's doctor made a general assumption-a deaf person can't be a lifeguard-without conducting specific physical tests to confirm his faulty assumption. The Consultant made a general assumption-the proposed accommodations would be ineffective less than 100% of the time-without conducting an individualized evaluation of whether the propos ed accommodations actually would be effective for Keith and without speaking with Keith or someone with expertise in the ability of deaf people to serve as lifeguards. When relying on third-party experts or consultants, verify they have the requisite education, training, and experience to opine about the specific disability and specific job functions at issue.
By Christopher S. Thrutchley, firstname.lastname@example.org