Would you feel comfortable with your kids swimming in a pool with a deaf lifeguard on watch?  Could a deaf lifeguard notice your distressed child's cry for help?  While these questions pose some serious personal judgments that a parent must make, in Keith v. County of Oakland, No. 11-2276 (6th Cir. Jan. 10, 2013) , the Sixth Circuit, in a recent published opinion, held that a jury should decide whether the plaintiff, Nicholas Keith, a deaf individual, is otherwise qualified to be a lifeguard at Oakland County, Michigan's wave pool with or without an accommodation for his disability.

Keith passed Oakland County's lifeguard training program and, after applying for a lifeguard position, Oakland County initially offered Keith a lifeguard position subject to a physical.  During the physical, the doctor said that Keith could not be a lifeguard, citing concerns that the doctor had a family to think about and if something were to ever happen to someone, the doctor could be sued. Ultimately, Oakland County revoked its offer to Keith.

Keith sued Oakland County under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12.111, which does not allow an employer to discriminate against an individual who is otherwise qualified for a position. The Sixth Circuit said that a jury could find that Keith might not need accommodations to provide the essential functions of a lifeguard; but if Keith does, Oakland County could have reasonably-provided accommodations, such as an interpreter during staff meetings or further classroom instruction to other employees to successfully work with Keith.

Interestingly, Keith provided the testimony of several experts, including a deaf lifeguard and a physician who had worked with hearing-impaired individuals for over thirty years, which opined that the ability to hear is unnecessary for a person to perform the essential functions of a lifeguard.  The experts testified that a lifeguard recognizes a potential problem almost completely based on visual observations, not on verbal cries for help.