About Me

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I am an attorney practicing in Hartford, Connecticut. A particular focus of mine is the legal needs of the amusement and tourism industry. My focus on the amusement industry derives from my pre-law career as an operations manager with Cedar Fair Entertainment Company and Universal Orlando. Having started my career as a ride operator at Cedar Point in 1992, I progressed through the seasonal ranks and ultimately became the Manager of Ride Operations and Park Services at Worlds of Fun in Kansas City. I also worked in Universal's operations department during the construction and development of Islands of Adventure. Today, I am an active member of the New England Association of Amusement Parks & Attractions and the International Association of Amusement Parks & Attractions. I have been invited to speak at amusement industry meetings and seminars and have worked on a variety of matters relating to this industry.

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Friday, September 9, 2011

So You Think A Deaf Person Can't Be A Lifeguard? You Might Be Right...Or Wrong.


We spend a lot of time in this industry talking about the ADA when it comes to guests.   The recent death of Sgt. James Hackemer atDarien Lake has kept this issue at the forefront for most of the summer.  But one issue we spend a lot less time talking about is the ADA as applied to our employees.  Lucky for us, a federal court judge in Michigan has given us the opportunity to think about it now.  In Keith v. Oakland County, issued September 1, the Court ruled against a deaf lifeguard in an ADA employment discrimination case finding that his disability precluded him from performing the “essential” duties of a wave-pool lifeguard and that no reasonable accommodation was possible.
  
            To give some brief background on the case, the Plaintiff, Nicholas Keith, is deaf in both ears and has a surgically installed cochlear implant that allows him to hear noises “such as people calling for him, alarms, and whistles” with the assistance of the implant and an external sound transmitter.  His verbal speech ability is limited and he communicates primarily through sign-language and gestures.  Over the course of a two year period, Mr. Keith completed, with the assistance of a county-provided interpreter for classroom sessions, Oakland County, Michigan’s junior lifeguard training and regular lifeguard training courses.  Thereafter, he applied for and was offered a wave-pool lifeguard position at the county-owned Waterford Oaks Water Park, subject to successful completion of a physical.  The doctor conducting the physical, however, certified that Mr. Keith “could not function as a lifeguard without assistance,” and would require “constant accommodation.”  After consultation with Ellis and Associates personnel, water park officials notified Mr. Keith that his offer of employment was rescinded. He promptly sued under the ADA.

            The Court found against the plaintiff based on his failure to prove one of the three essential elements of an ADA employment claim:  that he was qualified to perform the essential functions of the job, even with reasonable accommodation.  The Court’s analysis of this issue provides important guidance when it comes to hiring disabled employees and compliance with the ADA.

  • How Well Do You Know A Disabled Applicant’s Abilities?
One of the more interesting facets of this decision was in the Court’s discussion of the level to which the water park did (and, in some circumstances, did not) take the time to individually assess Mr. Keith’s abilities.  The ADA “mandates an individualized inquiry in determining whether an employee’s disability or other condition disqualifies him from a particular position.”  In non-legalese, this means that you can’t simply have an across the board “no deaf people” rule for lifeguards or any other employment position.  You have to take the time to individually assess each disabled applicant to determine the extent of his / her abilities with respect to a particular job.  In Keith, the park did this both the exact right way and the exact wrong way simultaneously.

As I mentioned before, the park initially extended Mr. Keith an offer of employment subject to passing a physical.  The park referred Mr. Keith to a doctor to do the physical, however the doctor had “no education, training, or experience in assessing the ability of a deaf individual to work as a lifeguard.”  To make matters worse, the evidence showed that the doctor “entered the examination room, reviewed Plaintiff’s medical file, and stated, ‘He’s deaf; he can’t be a lifeguard.’”  End of story.  The Court found this absolutely did not qualify as any sort of individualized assessment.

But, the park saved itself through its own internal assessment.  Park management had taught Mr. Keith in his two lifeguard classes and were thus very aware of his abilities.  Moreover, the park produced extensive emails showing discussion with Ellis & Associates officials about Mr. Keith’s abilities and accommodations that would need to be made if her were hired.  Given this evidence, the Court found that the park had conducted an adequate individualized assessment. 

So what’s the takeaway here?  Easy.  No across the board rules on disabled employees.  Simple as that.  Take enough time to get to know these applicants so that you have a reasonably good understanding of the extent of their abilities.  After all, not all deaf people are totally deaf.  Some, like Mr. Keith, have devices to assist in hearing some sound whereas others do not.  You won’t know unless you take the time to find out.  Its not just the right thing to do, its required by law.  And once you have made that individualized assessment, document it in a report, memorandum, or email.  Create a paper trail so that you can prove this assessment was done if it ever becomes an issue later.

  • What are the job’s “essential functions”? 
To a very large degree, this was the central question that the Keith case hinged upon.  And, its not necessarily an easy question to answer.  Obviously, the essential functions of a lifeguard include lifesaving skills – i.e. swimming, responding to emergency situations, performing rescue breathing and CPR, etc.  And the Court found that there was no dispute that Mr. Keith is “capable of the essential functions of a wave-pool lifeguard with respect to life-saving duties.”  Indeed, Mr. Keith presented proof of his abilities in this regard and presented evidence from a lifeguard training instructor and professor at Gallaudet University that she had certified over 1000 deaf lifeguards and who was “unaware in her 37 year tenure with Gallaudet University of a failure of any deaf lifeguard to appropriately respond to a victim in a distressed or related incident.”  So responding to an emergency and performing the core lifesaving duties of a guard was not a problem.  So what was? 

The problem was the other essential functions of a wave-pool lifeguard – specifically, those pertaining to “communicating with patrons, emergency personnel, and other lifeguards.”  Mr. Keith was required to perform these functions every day as a wave-pool lifeguard, and the Court found that there was no proof that he could do so without accommodation (i.e. an interpreter) or that forcing the park to provide an interpreter all day every day was reasonable.  Moreover, the Court held that it was not reasonable to ask other employees to handle these essential functions for Mr. Keith. 

This finding begs the question:  What functions are “essential” in an amusement industry position – particularly a front-line or seasonal position?  Obviously, this will depend in large part on the job itself.   
    • Is the ability to hear a ride an “essential function” for a ride operator?.  Does it change the calculus if the ride operator is working a ride with a crew as opposed to working a ride alone?  One could certainly imagine that the ability to hear might be an essential function when there is no one else around listening to the ride, but might become non-essential when others are present who can hear abnormalities. 

    • What about sweepers on the midway?  In many parks, guests are told in brochures to seek out these individuals for answers to questions, directions, etc..  Under the reasoning in Keith, could a deaf person do this job if they had similar communicative problems as had Mr. Keith?  Or are the “essential functions” of a sweeper more focused on cleaning?  
       
    • How about a food services or merchandise job?  Both of those require guest interaction and might require the ability to hear things like theft alarms, cooking timers, or fire alarms.  Are those “essential functions” requiring the ability to hear?    
Operators must give real thought to the jobs for which they are hiring and determine which duties are “essential” to that job and which are not.  This is particularly important in a specialized industry such as the amusement and carnival industry, where job descriptions may be quite different from a typical office-environment.  Human Resources should not be making these determinations in a vacuum.  Involve the operations people who are managing these departments so that there is never an issue about whether enough expertise was involved in the decision. 
 
  • How Do You Prove What Functions Are Essential? 
So after you’ve come up with your “essential” job function, how do you prove what those are when it becomes an issue?  I’ve said it before and I’ll say it now – you cannot rely upon your “word” to prove it at the time a question is asked in a deposition or under cross-examination at trial.  Instead, document, document, document. 

In Keith, the court looked, to a large degree, to the duties and functions set forth in the park’s staff manual to determine which duties were essential to the job.  The park had wisely documented the essential and non-essential functions of the wave-pool lifeguard position in its staff manual which later formed the foundation for a successful defense.  You should do the same.
The off-season is quickly approaching (if not here) for those in seasonal operations, and this gives an ideal opportunity to re-focus on employment issues before starting the wave of interviewing and hiring again in the spring.  Take the time now to consider some of this issues with respect to disabled applicants, and you might save yourself some real problems in court later.

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