A recent federal court opinioncourt opinion highlights the need for employers to evaluate employee requests for reasonable accommodation on an individualized basis – even where, at first glance, an effective accommodation may not be readily apparent. The ADA is, after all, intended to overcome employment decisions based on stereotypes.
A Deaf Applicant Seeks a Lifeguard Job
A 27-year old man who was deaf since birth applied for a lifeguard job at a county wave pool. He had previously received his lifeguard certification following successful completion of the county’s lifeguard training program. He utilized an American Sign Language interpreter during his training to communicate verbal instructions, but the interpreter did not assist him in executing lifesaving tasks. The applicant was unable to speak verbally but communicated using sign language.
Can He Do It?
Nevertheless, he was offered the lifeguard job but conditioned upon a pre-employment physical. During his physical, the physician stated, “He’s deaf; he can’t be a lifeguard.” However, the physician approved employment as a lifeguard “if his deafness was constantly accommodated.” The physician didn’t indicate if the applicant could be safely accommodated and expressed his doubt that an accommodation would always be adequate.
Based upon the results of the physical exam, his employment was placed on hold. Wanting to make sure that an accommodation could safely be made, the county sought the advice and input from an external group of aquatic safety and risk management consultants who provide guidance to the county regarding its water park facilities and lifeguard training program. Ultimately, the independent consultants expressed concern about the applicant’s ability to function safely and effectively as a lifeguard with “100 percent certainty.” Then, based on the opinions expressed by the physician and the consultants, the offer of employment was withdrawn.
Let the Jury Decide if He Can
That resulted in an ADA lawsuit. The court granted summary judgment in favor of the employer, finding that it had made an individualized inquiry regarding the applicant’s abilities and that the applicant failed to show that he could perform the essential communication function of the position. An appeal followed, and the court sent it back for a jury trial.
While the employer in this case certainly made an “inquiry,” the opinion criticized the employer’s failure to work with the applicant directly to determine the extent of his abilities and to explore potential resolutions. The court emphasized the fact that none of the individuals consulted had any education, training or experience in assessing the ability of deaf individuals to work as lifeguards, nor did any of those individuals meet the applicant and allow him an opportunity to demonstrate his abilities. Thus, although the employer took steps it thought necessary to explore the safety concerns raised by the hiring of a deaf lifeguard, it did not individually assess whether the particular applicant was able to perform the job. The court further criticized the employer for relying upon the opinions of third parties who failed to perform an individualized assessment.
The court found that there was an issue of fact as to whether the ability to hear and communicate verbally were essential functions of a lifeguard position. In other words, a jury will have the power to decide the essential functions of the job. That will always be risky for an employer. While in this case the county offered evidence that effective communication was an essential job function, the applicant provided sufficient evidence that he could communicate well enough to perform the essential functions of a lifeguard position.
Things to Think About
The ADA does not require employers to provide an employee with his or her preferred accommodation. But it does require an individualized inquiry, which includes communication or other interaction with the individual requesting accommodation. Had the employer discussed its concerns with the applicant and evaluated the applicant’s actual ability to perform the required skills of the position rather than relying upon assumptions or the opinions of others, the result may well have been different.
To make sure disabled individuals are afforded an individualized assessment employers should:
- Review job descriptions to ensure they accurately reflect the duties to be performed and that functions listed as “essential” are truly essential based upon the job you want accomplished.
- Review required physical examinations to ensure they accurately assess an applicant’s ability to perform the essential functions of the position.
- Review reasonable accommodation policies and procedures to ensure the interactive process includes interaction with the individual requesting accommodation. The process should focus on the individual facts and circumstances of the situation and seek feedback from the requesting individual prior to making any decision.
- Train HR personnel and management on the importance of making accommodation decisions based upon the information obtained during the interactive process, rather than societal prejudices or assumptions.
- Avoid stereotypes, and make individualized judgments based on the good faith interactive process.
Reference: Keith v. County of Oakland, (6th Cir., No. 11-2276, January 10, 2013)
If you have any questions, please contact Jennifer Gonzalez at jgonzalez@wp.hallrender.com, Steve Lyman at slyman@wp.hallrender.com or your regular Hall Render attorney.
