Are You Relying on the Right Kind of Expert for Disability Assessments?

February 4, 2013

Sara, one of your employees approaches you to tell you that she has a particular condition/disability that requires an accommodation in order to perform the essential functions of her job. The disability that Sara is claiming to have is not readily apparent from just looking at her.  Under such a circumstance, the ADA permits an employer to have the employee examined by a physician to determine the nature and extent of the disability and if there are any particular accommodations that would permit the employee to perform her job. You ask Sara to go to a doctor that your company uses for post-offer physicals and provide the doctor with a copy of the job description. The doctor examines Sara and the job description and informs you that there is no way the employee can safely perform the job. What do you do?  This type of situation recently happened to Oakland County, Michigan when a deaf applicant applied for a lifeguard position.[1]

Nicholas Keith had been deaf since his birth in 1980. He communicates primarily with sign language, but he is able to hear noises including whistles, alarms, and loud voices. In 2007, through the use of an interpreter to relay verbal instructions, Keith completed Oakland County’s lifeguard training course, successfully executing all lifesaving tasks and training techniques himself. He applied for a lifeguard position with the county requesting only that an interpreter be present at staff meetings and any further instruction. The position was offered to Keith conditioned upon his passing a post–offer physical. The county’s doctor reviewed Keith’s medical history and stated “He’s deaf; he can’t be a lifeguard,” and also commented that he (the doctor) would be sued if “something” happened.

Based upon this, the county placed the offer of employment on hold and contacted a group of aquatic safety/risk management consultants. The county inquired as to whether any accommodation could be provided to allow Keith to perform the essential functions of the job. The consultants expressed concern over whether Keith could function effectively as a lifeguard, despite not having any background or experience regarding the ability of deaf people to work as lifeguards. Based upon the doctor’s recommendation as well as the opinion of the consultants, Keith’s job offer was withdrawn.

Keith sued the county for disability discrimination under the ADA. While the district court granted the county’s request that the case be dismissed, the Sixth Circuit court of appeals reversed, finding that there were questions of fact that a jury should be allowed to consider as to whether Keith could perform the essential functions of the lifeguard position with or without reasonable accommodation. One of the keys to the court’s reversal was the fact that Keith had a witness who had worked extensively with hearing impaired individuals and was a certified training instructor who had worked with deaf individuals in the field of life guarding and aquatics, certifying over 1000 deaf lifeguards through American Red Cross training programs. Keith also provided testimony from a physician specializing in neurodevelopmental disabilities who had worked with hearing impaired individuals for over 30 years, and who stated an opinion that in a noisy swimming area, recognizing a potential problem is almost completely visually based. It was this doctor’s opinion that Keith’s deafness should neither disqualify him as a lifeguard nor require constant accommodation. In the end, the court found that the county had relied upon the advice of those who did not have proper experience where the ADA requires an individualized assessment of whether a disabled employee can perform the essential functions of the job, with or without reasonable accommodation.

While this case may still ultimately be decided by a jury in the employer’s favor, it does provide a valuable lesson to employers. When relying upon the expertise of a third party in making disability assessments, it is important for you to determine if the opinions expressed by the third party resulted from an individualized assessment of the employee or general assumptions without any real backing. If the “expert” is only professing his opinions on such assumptions, the employer would be better served sending the employee to someone who has real expertise in the matter.