Eleventh Circuit Widens Circuit Split on Accommodation Issue

Consider the following scenario: Because of a disability an employee is unable to perform an essential function of his or her current position and there is no reasonable accommodation that will enable the employee to remain in that position. The disability, however, will not prevent the employee from performing the essential functions of an open position for which the employee is qualified. A number of courts presented with this scenario have had to decide the extent to which the Americans With Disabilities Act (ADA) mandates that the employer assign the disabled worker to the open position as a reasonable accommodation without requiring the employee to compete for the position with other qualified candidates.

Recently, in Equal Employment Opportunity Commission v. St. Joseph’s Hospital, Inc., the United States Court of Appeals for the Eleventh Circuit joined the Eighth Circuit in concluding that there is no ADA violation if the employer requires the disabled employee to compete for the open position. Other courts, however, including the Seventh, Tenth, and D.C. Circuits have concluded that, in most instances, a qualified disabled employee should be placed in the open position as a reasonable accommodation. The Seventh Circuit’s decision is the subject of an earlier blog.

The St. Joseph’s Hospital Decision
The EEOC brought suit on behalf of Leocadia Bryk, who worked as a nurse in the defendant hospital’s psychiatric ward, and, because of spinal stenosis, could not walk without the assistance of a cane. The hospital determined that the cane was not a reasonable accommodation for Bryk’s disability because it posed a safety risk in the ward where she worked (the EEOC did not dispute this determination) and terminated Bryk after she could not secure another position. The EEOC maintained that Bryk was qualified for three posted, open positions for which she applied and was entitled to one of those positions as a reasonable accommodation over the eventual successful candidates. The hospital maintained that it was entitled to follow its policy of filling open positions with the most qualified candidate.

On the EEOC’s appeal from a jury verdict in favor of the hospital, the Eleventh Circuit affirmed the jury’s finding that Bryk was qualified for the three open positions and also affirmed the jury’s finding that the hospital had acted in good faith. As to this latter finding, the Eleventh Circuit rejected the EEOC’s argument that the trial court erred by failing to instruct the jury that the ADA mandated that Bryk be given one of the open positions as a reasonable accommodation. The Court reasoned that the ADA was not intended as an affirmative action statute for disabled workers. The Court relied heavily on the Supreme Court’s decision in US Airways, Inc. v. Barnett, which held that the ADA did not require an employer to ignore an established seniority system when filling open positions. The Court concluded that the hospital’s policy of filling open positions with the most qualified candidate was entitled to the same deference as the seniority system at issue in Barnett.

Ironically, the Seventh Circuit also relied heavily on the Supreme Court’s Barnett decision in concluding that in “the run of cases” the ADA requires an employer to accommodate a disabled worker with an assignment to a vacant position, unless the employer can demonstrate “undue hardship.” The Seventh Circuit understood Barnett to say that “normally” a request to fill a vacant position will be reasonable under the ADA, but that an established seniority system constituted an exception. The Seventh Circuit agreed with the EEOC that a “best qualified” selection policy for filling open positions cannot be equated with a seniority policy for purposes of establishing “undue hardship.” Obviously, the issue is one that cries out for resolution by the Supreme Court. In fact, the Supreme Court granted certiorari on the issue once before, but the case settled before the Court could render a decision. It remains to be seen whether the EEOC will seek Supreme Court review of the St. Joseph’s Hospital decision. We will, of course, keep our readers posted.

Conclusion
Until the Supreme Court resolves the split in the lower courts, employers in jurisdictions whose courts have not yet taken a position on the issue should exercise caution and consult with counsel when confronted with a request for a transfer to a vacant position as an accommodation. An employer who cannot demonstrate it would suffer undue hardship if it were to grant a disabled employee’s request to fill a vacant position runs a significant risk of liability for failure to accommodate, should the employee file a charge of discrimination with the EEOC or initiate litigation.

If you have any questions regarding this blog, please feel free to contact any of the attorneys in the Gibbons Employment & Labor Law Department.

Richard S. Zackin is a Director in the Gibbons Employment & Labor Law Department.
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