Keith v. Oakland County, 2011 WL 3862329 (Eastern District of Michigan September 1, 2011), is a fascinating case containing several very important points. In this case, a deaf person trained to be a lifeguard. During the training process he received a variety of accommodations and was able to complete the training successfully. However, when he applied for an actual lifeguard job with Oakland County, he was given a conditional job offer and had to take a physical. At the physical, the doctor stopped the exam once he knew the person was deaf and said that deaf people cannot be a lifeguard. Oakland County then investigated the matter further in conjunction with consultants and decided that this particular individual could not be a lifeguard and withdrew the offer. Keith, the plaintiff, then sued alleging violation of the Americans With Disabilities Act. The key question faced by the court was whether the plaintiff was otherwise qualified for the job. That is, could the plaintiff perform the job’s essential functions with or without reasonable accommodations.

In granting summary judgment for Oakland County, the court reasoned as follows. First, the Dr. who examined the plaintiff as part of the physical subsequent to the conditional job offer messed up by not making an individual analysis of the plaintiff and just jumping to a general conclusion. Second, Oakland County did not mess up with regard to the way it followed up on the physical conducted by the Doctor because Oakland County then engaged in a very detailed analysis, including consulting with its consultants, regarding whether the plaintiff had the ability to do the essential functions of the job with or without reasonable accommodations.

Third, the court said that it was simply unreasonable to accommodate an individual by requiring an employer to hire an additional person to assist the individual in his or her job duties. Another way they said it, is that employers are not required to assign existing employees or higher new employees to either perform certain functions or perform the duties of a disabled employee’s job when that employee cannot perform those duties by virtue of his disability. It is this particular reasoning that is potentially very troublesome. It implies that an employer may well be within their rights to just make an assumption that a person with a disability cannot do a particular job. Also, the statements are more nuanced than at first they may appear. Obviously, the Americans with Disabilities Act would not require that another person be the person responsible for performing the applicant’s job duties. However, accommodating the applicant is not the same as performing those job duties. For example, if the applicant is still the one processing the information, making the individual calls, and executing based on that information, then the individual that is communicating the information is not performing the job duties at all rather they are just passing along the information. Another issue is whether the accommodations would be such that the applicant would be a direct threat to himself or others but this was an issue that the court did not address or deal with. One wonders if the record could have been broadened upon denial of a summary judgment motion so that the necessary facts could be brought in to see whether the accommodation where such that they were in essence enabling someone to do another person’s job or even with the accommodations the applicant would’ve been a direct threat. However, since summary judgment was granted, one it just left to wonder what future facts may have revealed.

What can we take away from this case? Three very important items. First, the mandate of the Americans with Disabilities Act to engage in individual analysis applies throughout the entire process. If Oakland County had just relied on the Dr. without doing its own independent detailed analysis, Oakland County would have been in trouble.

Second, there is a huge distinction between training for program or a job and then actually getting the job. I have seen situations whereby a program might say, for example, well since this person can’t be a lifeguard, we don’t have to accommodate them in the training to be a lifeguard. To Oakland County’s credit, they did not make this mistake. Their training was quite accessible and then when it came to the job, they reached a different conclusion.

Third, if you are an advocate for a plaintiff in this type of situation, you are going to have to be very aggressive to advocate that accommodating a person with a disability is not necessarily the same thing as hiring a person to do that person’s job. Facts are needed to establish whether the person is a conduit or whether that person is actually doing the person’s job. This is going to be critical or it could potentially lead to a situation that allow stereotypes to prevent persons with disabilities who are otherwise qualified from employment.