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Speaker Law

Published opinion on ADA discrimination regarding deaf lifeguard

Posted on Monday, May 14, 2018

I'll be honest. When I first started reading the 6th Circuit's opinion in Keith v Oakland County (decided 01/10/13 in a published opinion), I asked myself, how is it possible for a deaf lifeguard to safely perform his duties? But then the opinion cogently described the evidence, including expert evidence, presented in that case about the functions of a lifeguard, and how hearing has almost little to no impact on a lifeguard's performance of safety functions. In fact, the lifeguard with the world record for saving lives was a deaf person and there are many programs to certify deaf lifeguards. Some of the other non-safety related job functions of a lifeguard, such as speaking with patrons who have questions, or attending meetings, could be reasonably accommodated under the American with Disabilities Act. The opinion was very compelling and quickly persuaded me that the plaintiff had created a genuine issue of fact for a jury to decide whether he was qualified to serve as a lifeguard. It apparently is also the first opinion in the country to squarely address this topic. Apparently, the First Circuit issued a decision which opined that denial of employment to a deaf lifeguard could form the basis of an employment discrimination case. That case, however, was not an employment discrimination suit, but a suit regarding the YMCA's revocation of a deaf lifeguard's certification because he could not hear noises and distress signals.

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