Deaf lifeguard allowed to challenge Oakland County refusal to hire

In Keith v. County of Oakland, a well-qualifed lifeguard challenged Oakland County's decision that he could not serve as a lifeguard without requiring unreasonable accommodation. Under the Americans with Disabilities Act, it is illegal to disciminate against a person by reason of a disability. The salient question is often whether or not the disability could be overcome with reasonable accommodation.

Keith provided expert testimony documenting his ability to perform the lifeguard functions despite his hearing deficit and that he was "otherwise qualified" under the ADA. The County responded that it had sent Keith for a physical, and that the examining doctor had simply concluded that Keith "was deaf and couldn't be a lifeguard." The County argued that on the basis of the doctor's conclusion, it was justified in failing to employ Keith. It also relied on the Plaintiff's inability to prove that he could "perform perfectly '100% of the time'." The trial judge agreed.

The Sixth Circuit noted that under the ADA, an employer is required to make an "individualized inquiry" into the disabled person's ability to perform the job and the accommodations necessary. The Court noted the unreasonable standard applied by the County, its failure to interview Keith or the examining doctor, and concluded that the County had not complied with its legal duty.

Pointing out that the disability statutes were intended to "counter mistaken assumptions" about various disabilities and to require a reasoned analysis of a disabled person's actual abilities and necessary accommodations. Merely deferring this duty to a third-party--who may act on "mistaken assumptions"--does not satisfy the duty established under the ADA. If the individual can perform the"essential" or "fundamental" functions of a job, and if accommodations that are reasonable can be devised, it does not matter that "marginal" job functions cannot be performed. Ultimately, if there is conflicting evidence, it is for the jury to decide whether a disabled person can perform the essential functions of a job with reasonable accommodation.

Keith presented testimony to the effect that the essential job functions of a lifeguard are "almost completely visually based" and that he can communicate adequately despite his deafness. He also documented his successful completion of lifeguard training. The Court noted that "the world record for most lives saved is held by a deaf man, Leroy Colombo, who saved over 900 lives during his career" and that the Red Cross certifies deaf lifeguards.

In light of the totality of the evidence, the Court held that the District Court erred when it ruled that Keith was disqualified as a matter of law. Since Keith demonstrated that an objectively reasonable accommodation of his deafness was possible, it is for a jury to decide whether Oakland County illegally discriminated against him based on a "perceived" disability.