In a prior blog entry, I talked about a case out of Michigan whereby the District Court granted summary judgment to the County when the county refused to hire a person who wanted to be a lifeguard because he was deaf. Well now the Sixth Circuit has weighed in and has reversed the district court’s award of summary judgment.

In doing so, the Sixth Circuit Court of Appeals reasoned as follows. First, the ADA mandates an individualized inquiry for determining whether a person is qualified for a particular position. Keith v. County of Oakland_ F.3d _, 2013 WL 115647, *5. In this case, the county may the individualized inquiries all the way through the training process and even proposed certain accommodations that might work upon hiring of him as a lifeguard. Id. at **1-3. However, the physician who did the medical exam jumped to conclusions about whether a deaf person could be a lifeguard and never pursued the matter further. Id. at 1-2. Also, the consultants that worked with the county also jumped to conclusions about whether the plaintiff could perform the essential functions of the job as well and also set a 100% effective rate for the accommodations as the standard. Id. at **2-3. The court said that requiring a 100% effective rate was not right because it would be holding persons with disabilities to a higher standard than persons without disabilities as no lifeguards are ever held to that standard. Id. at *6. Finally, the court believed that it just didn’t make any sense for an employer to make an individualized inquiry only to defer to the opinions and advice of those who have not. Id. After all, an employer cannot escape liability under the ADA by mechanically relying on the medical opinions and advice of others. Id.

Second, whether a job function is essential is a question of fact typically not suitable for resolution on a motion for summary judgment. Id. at *7. The court went on to say that the plaintiff had raised several points to establish that a question of fact existed. In particular, the court said that the essential communication duties of a lifeguard (protecting and rescuing swimmers in distress, enforcing pool safety rules, activating the emergency action plan, and performing CPR), Id. at *10, were all things that the plaintiff could do with or without reasonable accommodations). Id. at **9-10.

The points that the plaintiff raised included that he was: 1) able to follow the 10/20 standard of zone protection (a technique taught to lifeguards whereby they scan their entire zone every 10 seconds and can reach any part of their zone within 20 seconds), Id. at *8; 2) able to detect distressed swimmers (an entirely visually-based activity), Id.; 3) was able to enforce safety rules by relying on his whistle and various physical gestures, which is the way lifeguards do it anyway since verbal enforcement is usually impractical in a noisy waterpark, Id.; 4) was able to communicate effectively during emergency with a minor modification to the emergency action plan. In particular, lifeguards would signal with a fist in the air, opening and closing their fist in repetition, Id. (interestingly enough, the court said that modifying the emergency action plan in this way turns out to be actually better for the entire lifeguard staff. Id. This is a principle called universal design, which is the belief that by designing systems so that persons with disabilities can use them effectively with or without reasonable accommodation, you actually improve the system for everyone else); and 5) was able to communicate with patrons at the level considered essential for lifeguard just by carrying a few laminated notecards in the pocket of his swim trunks with basic phrases such as, “I am deaf,” “I will get someone to assist you,” and “wait here.” Id. The court noted that attendants were posted throughout the waterpark to assist patrons with basic needs and questions thereby calling into question whether anything beyond the type of phrases that he would carry in the pocket of his swim trunks would be essential. Id.

The court felt that the most compelling evidence that the plaintiff was otherwise qualified to be a lifeguard came from the experts that he presented whom, unlike whom the county relied on in their decision-making process, did have knowledge, education and experience regarding the ability of the individual to serve as lifeguards. Id. at *9. In fact, the world record for most life saved by a lifeguard is held by a deaf man (saved over 900 lives in his lifeguarding career). Id. Also, the American Red Cross certifies deaf lifeguards and Gallaudet University (a college that focuses exclusively on the needs of the deaf), has a lifeguard certification program). Id.

Third, in the Sixth Circuit, in a reasonable accommodation case, it is up to the plaintiff to show that the proposed accommodations were, “objectively reasonable.” Id. If that can be done, then the employee has the burden of showing that the accommodation would break him (fundamentally alter the nature of the business). Id. With respect to Keith, the plaintiff/appellant, the accommodations, such as the ones discussed above, were objectively reasonable in that they did not fundamentally alter the nature of the business. Id. In fact, as noted above, some of the suggested accommodations may have even made the business better. Also, the accommodations that the plaintiff needed while they called for some restructuring of the job’s marginal functions, they did not require the shifting of any essential functions onto any other lifeguards. See Id.

Fourth, the ADA specifically includes interpreters among the list of reasonable accommodations. Id. at *10. Accordingly, that suggested to the court that the provision of an interpreter was generally reasonable, especially when the interpreter was needed only on occasion just for staff meetings and trainings. Id. The court also noted that several experts had testified that an interpreter was unnecessary to enable a deaf individual to perform the essential functions of a lifeguard. Id. at *9. Finally, Oakland County didn’t even argue, let alone show, that providing accommodations to the plaintiff would constitute an undue hardship on its operations. Id. at *11.

Finally, with respect to the District Court refusing to hold Oakland County liable for failing to engage in the interactive process, the court said the District Court had to revisit the issue. Id. In the Sixth Circuit, failure to engage in the interactive process is not an independent violation of the ADA. Id. However, if the plaintiff can show that a reasonable accommodation is possible, then failing to engage in the interactive process is a violation of the ADA. Id. Here, the District Court missed the boat, because it incorrectly held that the plaintiff had failed to propose objectively reasonable accommodations. Id. The Sixth Circuit concluded that the accommodation proposed by the plaintiff were objectively reasonable. Id. at **9-10. Accordingly, the District Court was asked to revisit the issue of the failure to engage in an interactive process when the case came back to them. Id. at *11.

So what can we take from this case? First, what are the essential functions of the job is a question of fact, and in the Sixth Circuit’s view, one not typically suitable for resolution on summary judgment. Second, it would be helpful for the employer if they truly understood what the job’s essential functions were. The best way to think of the essential functions of the job is whatever functions are fundamental to the job at hand. Third, when it comes to essential functions of the job, expert testimony/analysis may be critical. Fourth, an employer should be very wary of relying on stereotypical conclusions of others without fully engaging in the interactive process itself. Fifth, as I have written for years, do not confuse major life activities with the essential functions of the job. As the court notes in great detail in this opinion, being able to hear (a major life activity) is simply not an essential function of the job of being a lifeguard. The analogy that I have used in the prior editions of my book is that seeing the balls and strikes is not an essential function of the job of being an umpire, rather being able to call the balls and strikes accurately is the essential function of the job of an umpire. I think this case is even a better example of what happens when you confuse major life activity with essential functions. Sixth, do not be afraid to reassign marginal functions of a job to others. Seventh, in looking over the accommodation proposed, do consider whether the proposed accommodations should not be adopted on a general level as something that might make the business better overall (universal design). Finally, do not hold persons with disabilities to a higher standard than what you would hold people without disabilities to.

A link to the video of I wanna be a lifeguard is provided for your listening pleasure (I know it’s a campy song, but you will not be able to get it out of your head. BTW: The drummer in the video is an IP attorney in Mass.

4 Responses to I wanna be a lifeguard with apologies to blotto part 2

the above is a link to one of the blogs that I have in my blogroll, wait a second. This particular link will take you to a case from the Second Circuit, McMillan v. City of New York (docket number 11-3932, March 4, 2013), decided just two days ago talking about essential functions of the job. There is a good analysis of that case in that blog entry as well as a link to take you directly to the case. What I want to mention here, is that the court says that when it comes to figuring out what an essential function of the job is, the court must conduct a penetrating factual analysis. The City of New York argued that physical presence at a specific time was an essential function of the job. The court said that may or may not be true in today’s world and with respect to the specific job at issue, but the court had to conduct a fact-specific inquiry and since such an inquiry was not conducted, the District Court was wrong to grant summary judgment to the City of New York. I would call this case a big win for plaintiffs as it is going to make it harder for defendants, in the Second Circuit anyway, to prevail in summary judgment when it comes to the issue of what the essential functions of a particular job are.

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