A Setback for the EEOC: Appellate Court Holds that ADA Does Not Require Reassignment Without Competition Tasos C. Paindiris, Principal Jackson Lewis P.C. Orlando Tasos.Paindiris@jacksonlewis.com (305) 577-7600 2017 Jackson Lewis P.C.
EEOC v. St. Joseph s Hospital, Inc. 11th Circuit (Dec 7, 2016) Factual Background u Plaintiff was employed as a nurse in hospital s psychiatric ward u Plaintiff developed spinal stenosis and arthritis. She underwent hip replacement u Could only walk short distances and would need to stop to realign her body u Began using a cane for mobility assistance u Hospital concerned the patients could use the cane as a weapon and informed Plaintiff she could no longer use a cane in the psychiatric ward 2
EEOC v. St. Joseph s Hospital, Inc. 11th Circuit (Dec 7, 2016) Factual Background u Hospital policy did not permit internal candidates to apply for a transfer unless they had been in their current position for at least six months and had no final written warnings in their record u Plaintiff met neither criteria but the Hospital waived the requirements and allowed Plaintiff to compete with other internal applicants for open positions u EEOC alleges Plaintiff was qualified for three of the seven positions she applied for u The Hospital selected better qualified candidates and Plaintiff was terminated at the end of the 30 day window 3
Legal Claims and Defenses u EEOC claims that the Hospital violated the ADA because it failed to accommodate Plaintiff to a vacant position without requiring her to compete with other applicants for those jobs u Hospital argued that (1) it did not have an obligation to accommodate Plaintiff because she was not a qualified individual with a disability; and (2) the Hospital acted reasonably by allowing Plaintiff to apply (and compete) for other positions 4
Legal Analysis-Qualified Individual u Qualified Individual Court agreed that the essential function of Plaintiff s position in the psychiatric ward required her to keep patients safe and that no reasonable juror could find that Plaintiff could use her cane safely in the psychiatric ward Hospital argued that Plaintiff was not a qualified individual able to perform the essential functions of the employment position and therefore was not covered by the ADA Court held that Plaintiff was covered by the ADA because she was a qualified individual with respect to the prospective jobs for which she had applied Relevant position is the one that the individual holds or desires 5
Legal Analysis Transfer as an Accommodation u Court held the ADA does not require reassignment without competition for, or preferential treatment of, the disabled. u Statute offers a non-exhaustive list of accommodations that may be reasonable, and one item on the list is reassignment to a vacant position. u Employers are only required to provide alternative employment opportunities reasonably available under the employer s existing policies 6
Legal Analysis Transfer as an Accommodation u U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002) provides a framework for the issue SCOTUS held that a job reassignment request does not trump an employer s seniority policy and the ADA does not require an employer to assign a disabled employee to a particular position where another employee is entitled to that position under an established seniority system u Employee would have to show special circumstances to make exception to employer s rule reasonable u Hospital s policy was to select best qualified applicant for the position 7
Legal Analysis Transfer as an Accommodation u Requiring reassignment in violation of an employer s best- qualified hiring policy is not reasonable u Employers operate their businesses for profit, which requires efficiency and good performance. Passing over the best-qualified job applicants in favor of less-qualified ones is not a reasonable way to promote efficiency or good performance. u In the case of hospitals the well-being of patients is at issue - undermining a hospital s best-qualified hiring policy imposes substantial costs on the hospital and potentially on patients 8
Legal Analysis Transfer as an Accommodation u ADA was never intended to turn nondiscrimination into discrimination against the non-disabled u Court held reasonable as a matter of law the Hospital s waiver of it s policy 30-day period for Plaintiff to identify and apply for a vacant position and waiver of requirement that candidate is in current position for at least six months and has no final written warnings in their record 9
How to Proceed u u u u Employers will be wise to approach these situations carefully, and not simply as business as usual. The Eleventh Circuit s ruling contemplated that there might be situations ( special circumstances ) where a non-competitive reassignment would be required as a reasonable accommodation. EEOC enforcement guidance: The Commission takes the position that if reassignment is required, an employer must place the employee in a vacant position for which he is qualified, without requiring the employee to compete with other applicants for open positions. EEOC generally does not accept defeat from one Circuit. Will likely pursue the issue in other Circuits. 10