Tuesday, February 5, 2013

The interactive process under the ADA: Informal?

The recent 6th Circuit decision in Keith v. Oakland County has received quite a bit of attention because of the issue of a deaf individual being qualified as a lifeguard.  The court rejected the notion that the ability to hear is always an essential function for the performance of the lifeguard job.  The decision also criticized the input of the consultant used by the county to assist it in determining what, if any, accommodations would be available. The court noted that the consultant lacked experience with dealing with deaf individuals and their ability to be lifeguards and never met with the individual nor gave him the opportunity to demonstrate his ability.

There is another important aspect to the case that has not received as much attention.  The county withdrew its conditional job offer after consulting with the doctor who examined the individual and with its consultant. Neither had experience with the ability of deaf individuals to be lifeguards.  The county did not contact the individual or otherwise review the basis of its decision with him.  The individual argued that had the county contacted him, he would had told them that his cochlear implant allows him to hear loud noises and that he would have referred the county to individuals who had expertise and could dispel unfounded fears.

In the litigation over the county's refusal to hire, the individual presented affidavits from three experts which had a significant impact on the court.  The court stated that the most compelling evidence on the issue of "otherwise qualified" came from the experts who had the knowledge, experience, and education regarding whether the ability of deaf individuals to serve as lifeguards.  Indeed, one witness was a deaf lifeguard.  The court also was impressed with the fact that the world record for most lives saved (over 900) is held by a deaf lifeguard.

The county got to hear this information during the litigation.  It may well have heard it earlier had it given  the individual  the opportunity to hear the basis for the decision and to respond.  While the EEOC regulations refer to the possible need for the employer to "initiate an informal, interactive process" with the individual, an employer should not be misled by the word "informal."  The employer should make sure that it has thoroughly reviewed the nature of the disability; considered possible accommodations, including proposed by the individual; and provided the individual with the opportunity to respond to any action before it is taken.  The time to learn about the world record holder for saving lives is not during discovery.  "Informal" does not mean "incomplete."

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