You probably know that if you have 15 or more employees, then under the Americans with Disabilities Act, you: a) cannot treat an employee adversely on the basis of a disability; and b) must make reasonable accommodations for employees with disabilities. What if you have a disabled employee who is now unable to perform the essential functions of his/her current job, and you cannot come up with a reasonable accommodation for him/her to continue in that job? Do you have to re-assign the employee to another position? Maybe, but not necessarily. So what do you do? It’s not an easy question. I mean it’s probably a waste of your time to read a post answering a question if you already know the answer, and I’m not looking to waste your time any more than I might have just now. So let’s plunge right in and see if we can’t get you some kind of answers, after the jump…
(image from louisville.edu)
The EEOC says re-assignment may be a reasonable accommodation for employees who, due to disability can no longer perform their current job. While many courts have sided with the EEOC on this point they have also issued conflicting decisions. What’s up with that? Saying that re-assignment may be a reasonable accommodation, by itself, just means that employers have to consider re-assigning an employee to another vacant position for which s/he may be qualified. That still leaves a few questions unanswered, such as:
- When do you have to consider re-assignment?
- Does the obligation to consider re-assignment in turn obligate an employer to modify seniority rules?
- What positions must be considered for re-assignment?
- Must the disabled employee compete with other employees for the position in question?
The courts are split on these questions. In particular, the Seventh Circuit (covering Illinois, Wisconsin and Indiana) has contradicted itself in two different rulings and the Eleventh Circuit (covering Alabama, Florida and Georgia) recently handed down a ruling in conflict with the 7th Circuit’s later ruling. Let’s have a look.
The Seventh Circuit ruled in 2000 in EEOC v Humiston-Keeling that re-assignment obligations do not require giving disabled employees preferential treatment over more qualified, non-disabled employees. In 2012, however the Seventh Circuit reversed that ruling in EEOC v United Airlines, because, it reasoned that a US Supreme Court decision, U.S. Airways v. Barnett, 535 U.S. 391 (2002) essentially overruled EEOC v Humiston-Keeling. In other words, according to the Seventh Circuit, the EEOC is correct that “the ADA does indeed mandate that an employer assign employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to the employer.” Requiring workers with disabilities to compete for positions for which they were qualified would, in many cases prevent them from continuing employment with United.
Before we move to the 11th Circuit, let’s look at that Supreme Court case. US Airways v Barnett held that as a general rule, employers do not automatically have to modify their seniority rules, but that employees could show “special circumstances” that would make exceptions to those rules a reasonable accommodation. Such a practice would need to be on an individual basis, however. So how does this case mandate a reversal of EEOC v Humiston-Keeling? If it does, then how can other Circuit Courts of Appeals say differently? I’ll come back to that question in a moment. (Really, I promise).
Let’s first talk about EEOC v. St. Joseph’s Hospital, the conflicting Eleventh Circuit ruling issued just two weeks ago. The plaintiff in this case was a nurse who needed a cane for mobility. The problem: the nurse worked in the psychiatric ward of a hospital, where the cane was a safety hazard. The hospital gave the nurse the opportunity to apply for other jobs for which she was qualified, but did not give her preference based on her disability. She did not get any of the other jobs, and so she was terminated, and so she filed a charge with the EEOC. The EEOC then sued on her behalf, contending that employers must re-assign a disabled worker to a vacant position as a reasonable accommodation as long as the worker minimally qualified for the position. The Eleventh Circuit held that the ADA is intended to provide meaningful, but equal employment opportunities for the disabled and was never meant to effectively mandate discrimination against the non-disabled.
Wait a minute. If US Airways v Barnett, a Supreme Court case, mandates preferential treatment as EEOC v United Airlines seems to be saying, how can the 11th Circuit say otherwise? It seems the two circuits disagree as to how US Airways v Barnett should be interpreted. US Airways v Barnett did not rule that disabled workers automatically get preferential treatment. It ruled that in determining whether to re-assign a disabled worker to a vacant position, an exception to seniority rules may be a reasonable accommodation, and is to be decided on a case by case basis. The Supreme Court also did not decide whether such an exception was reasonable in that particular case, but sent the case back to district court for trial (on the issue of special circumstances warranting such an exception). So again, re-assignment is not necessarily an automatic right, and seniority rules are not always an automatic bar to re-assignment.
Where does all this back and forth leave employers? I leave you with these takeaways:
- You do not have to create a new position for a disabled employee. If you have a vacant position, and if the employee is qualified, you have to at least consider re-assigning the employee to that position;
- Re-assignment applies to employees, not applicants. I know that may seem obvious, but I have been asked about re-assignment (or perhaps re-directing) applicants to other positions;
- Undue hardship is a defense in this context as with any other requests for reasonable accommodations. If you believe you have such a situation, document it. You may need it to answer allegations of discrimination later.
- As with other requests for reasonable accommodation, the re-assignment need not be in fulfillment of the employee’s specific request. As long as you can show it is a reasonable accommodation of the employee’s disability, you have met your obligation;
- As with other requests for reasonable accommodations, you have to engage in the interactive process with the employee — and document what you do, your ultimate decision and the basis for it.
Well, it’s been good talking with you. Let’s talk some more about something else next week, shall we? See you then!
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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