On December 7, the Eleventh Circuit Court of Appeals issued an interesting opinion regarding reassignment as an accommodation under the Americans with Disabilities Act (ADA). EEOC v. St. Joseph’s Hospital, Inc. (11th Cir. 2016). The case widens a disagreement of interpretation among federal courts and the Equal Employment Opportunity Commission about when an uncontested job transfer is an ADA reasonable accommodation.
The employee, Ms. Bryk, had an ADA disability requiring her to use a cane for support and to walk. Her employer determined the cane presented a safety hazard (as a potential weapon) in the hospital’s psychiatric ward where she worked. Consequently, the employer informed her that she could not use the cane in her current position. Without the cane, however, Ms. Bryk was unable to perform the essential functions of her position. The employer provided 30 days for Ms. Bryk to identify and apply for other positions with the company as a reasonable accommodation. The employer determined, however, that it would also consider other candidates for these positions.
Ms. Bryk applied for several positions. In comparing her qualifications with the respective job requirements and the qualifications of other applicants for the same positions, the employer determined that her qualifications did not merit an interview for any of the positions she wanted. Consequently, Ms. Bryk did not secure a position and the employer terminated her employment. The EEOC subsequently filed suit against the employer, alleging the employer violated the ADA by not reassigning Ms. Bryk to “a vacant position without requiring her to compete with other applicants for those jobs.”
The district court determined the employer did not have the obligation under the ADA to reassign Ms. Bryk to a vacant position without competition from other candidates. The EEOC disagreed and appealed. On appeal, the court agreed with the district court, stating that “the ADA does not require reassignment without competition for, or preferential treatment of, the disabled.” The court reasoned that although an employer must reasonably accommodate a disabled employee, the ADA does not mandate how. Rather, the ADA offers a non-exhaustive list of accommodations that may be reasonable. One of these potentially reasonable accommodations is reassignment to a vacant position. The court reasoned that “had Congress understood the ADA to mandate reassignment, it could easily have used mandatory language. That it did not do so at least suggests that it did not intend reassignment to be required in all circumstances.”
This case is important for employers in how it compares with concurring and dissenting opinions from other federal courts and the EEOC. The varying court opinions indicate how an employer should respond in the respective jurisdiction. For example, the Eighth and the Fifth Circuits agree with the ruling in St. Joseph’s Hospital. The Eighth Circuit determined that the ADA “is not an affirmative action statute” and “only requires [the employer] to allow [the disabled employee] to compete for the job, but does not require [the employer] to turn away a superior applicant.” Huber v. Wal-Mart Stores (8th Cir. 2007). The Fifth Circuit ruled that the ADA does not require that disabled persons be given priority in hiring or reassignment over those who are not disabled. Daugherty v. City of El Paso (5th Cir. 1995).
However, three additional circuits go the other way. The Tenth Circuit concluded that the reassignment obligation “must mean something more than merely allowing a disabled person to compete equally with the rest of the world for a vacant position. … It must be considered, and if appropriate, offered to the employee.” Smith v. Midland Brake, Inc. (10th Cir. 1999). The Seventh Circuit ruled that “the ADA does indeed mandate that an employer appoint 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.” EEOC v. United Airlines, Inc. (7th Cir. 2012). Finally, the D.C. Circuit, without deciding the issue, stated that the ADA “requires covered entities to reasonably accommodate disabled employees unless they can demonstrate that such reassignment would impose an undue hardship … .” Aka v. Washington Hospital Center (D.C. Cir. 1998).
The EEOC’s current enforcement guidance agrees with these latter circuit court decisions. It states that “reassignment to a vacant position as a form of reasonable accommodation … must be provided to an employee … unless the employer can show that it would be an undue hardship. In a footnote to this guidance, the EEOC further clarifies that court decisions to the contrary “nullify Congress’ inclusion of reassignment in the ADA.” As such, if an employee is unable to continue performing the essential functions of the current position, with or without reasonable accommodation, “an employer must provide reassignment” when a reasonable accommodation for the current position would not be possible or would cause an undue hardship.
In response to these geographical disagreements concerning the requirements of the ADA, employers must familiarize themselves with the relevant interpretation in the jurisdiction where they do business. Employers should also strongly consider the EEOC’s enforcement position when evaluating whether or not to provide an uncontested transfer to an alternative position as a reasonable accommodation. As always, if you have additional questions or concerns about this or other employment law issues, please contact the author or one of MSEC’s employment law attorneys.