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person with a disability

Rotating Shifts and Disability Sensitivity

May 10, 2018 by William Goren 1 Comment

It has been a busy week, and so I am a bit late with getting a blog entry up. Also, I am off to North Carolina later today where I will be speaking at the University of North Carolina at Chapel Hill School of Government on hot issues in title I and title II of the ADA to attorneys and HR professionals as well as some others working for public entities in North Carolina. Really excited. I have never been to Chapel Hill before.

Turning to the blog entry for the week. As you know, it isn’t unusual for me to blog on cases by other legal bloggers if I feel I have something to offer. This is one of those situations. This case has been blogged upon by other legal bloggers. For example, Jon Hyman, in his Ohio employer’s Law Blog, which entry can be found here, and Eric Meyer in his Employer Handbook Blog, which can be found here. The case is Sepulveda-Vargas v. Caribbean Restaurants, LLC, which can be found here. As usual, the blog entry is divided into categories and they are: facts, court’s reasoning, and takeaways. The reader is free to focus on any or all of the categories.

I

Facts

Caribbean Restaurants LLC is an operator or Burger King franchises throughout Puerto Rico. Plaintiff was an assistant manager there. In 2011, while he was attempting to make a bank deposit on behalf of Caribbean, he was attacked at gunpoint, hit over the head, and had his car stolen. As a result he suffered from post-traumatic stress disorder and major depressive disorder. He requested Caribbean provide him with a fixed work schedule as opposed to a rotating one and that it move him to a Burger King location in an area not prone to crime. Caribbean initially acquiesced to that request, but eventually informed him that he would have to go back to working rotating shifts. In 2013, plaintiff resigned from his position because he simply could not work the rotating shifts. Caribbean schedules all of its managers in a way so that they rotate among three distinct work shifts.

II

Court’s Reasoning

  1. A handicapped person under the ADA (say what! I actually used a term that has been offensive for over 28 years? No, I didn’t. The court actually uses the term “handicapped,” in its opinion when talking about the prima facie case), is someone who: is handicapped under the ADA; qualified to perform the essential functions of the job with or without reasonable accommodation; and the employer knew of the disability but declined to reasonably accommodate upon request.
  2. An essential function of the job is anything that is fundamental to the position.
  3. The ADA and 42 U.S.C. §12111(8) says two of the things you can look to in determining essential functions are the employer’s judgment as to what functions of the job are essential and the written job description if that job description was prepared before advertising or interviewing applicants for the job.
  4. In its implementing regulations, 29 C.F.R. §1630.2(n)(3), the EEOC talked about other situation to consider in determining essential functions of the job including: the consequences of not requiring the incumbent to perform the function; the work experience of past incumbents in the job; and the current work experience of incumbents in similar jobs.
  5. It was uncontested that from Caribbean’s point of view, working rotating shifts was an essential function of the job.
  6. Accommodating the plaintiff permanently would have had the adverse impact of inconveniencing (the term used by the court), all other assistant managers who would then have to work unattractive shifts and respond to the plaintiff’s fixed schedule.
  7. Plaintiff admitted in a deposition that rotating shifts was a responsibility he had at Caribbean and that all other assistant managers had that responsibility as well.
  8. The job application the plaintiff filled out and signed when he was hired made clear that all Caribbean managerial employees had to be able to work rotating shifts at its restaurants.
  9. The newspaper advertisement for the job listed the need for working rotating shifts as a requirement.
  10. Just because Caribbean initially granted the plaintiff the accommodation on a temporary basis to not work rotating shifts, does not mean that Caribbean conceded a rotating shift was a nonessential function. That is, evidence of a non-required accommodation does not get to be used against the company in determining what is or is an essential job function.
  11. Plaintiff also claimed hostile environment, but the court was having none of it. The court said that simple teasing, offhand comments, and isolated incidents unless they are extremely serious do not amount to an adverse employment action establishing an objectively hostile or abusive work environment.

III

Takeaways

  1. For the life of me, I can’t understand why in 2018, I am seeing the word “handicapped,” in a judicial opinion regarding the ADA. You still find the term occasionally in some statutes. However, that particular term has never been in the ADA since it was enacted in 1990. Bottom line: don’t use this term when dealing with people with disabilities. It is a separate issue as to whether you want to go with a “person with a disability,” or with “disabled.” On that score, people in the disability rights community feel very strongly both ways. You can’t lose by going with, “person with a disability.” While a person preferring “disabled,” may not like that term, it is unlikely he or she would be offended. On the other hand, calling a person “disabled,” when that person prefers “person with a disability,” does not end well. I am in the “person with a disability,” camp myself.
  2. One thing that didn’t come up in this case was whether Caribbean had the obligation to mandatory reassign the plaintiff per this blog entry. The opinion reads as if there was simply no other job that the person could be assigned to. However, that is only implicit. The court simply never addresses the mandatory reassignment question. As a matter of preventive law, you always want to explore whether reassignment is possible.
  3. With respect to determining the essential function of the job, you can take the really complicated approach offered by the EEOC or you can keep it simple. That is, anything fundamental to that position is an essential function.
  4. When the court says that accommodating the plaintiff permanently would have had the adverse impact of inconveniencing all other assistant managers working rotating shifts, that misses the point. The ADA does not use “inconveniencing,” as the standard. Rather, the standard is undue hardship. An undue hardship meaning anything that does not constitute a financial or logistical undue burden. I could see the possibility of the defense here arguing that allowing the particular accommodation requested by the plaintiff, would fundamentally alter the way the business operates. However, that is a completely different kettle of fish than being inconvenienced.
  5. If an employer wants to go beyond what the ADA allows in terms of accommodating the employee with a disability on a temporary basis, this decision gives the employer freedom to do that without being penalized for making that effort.
  6. With respect to hostile environment, it might be a good idea for a plaintiff lawyer to have an expert talking about how a person with a disability is likely to perceive teasing, offhand comments and other isolated incidents. If the jury and/or the judge do not have experience with people with disabilities, they simply may not know how such things are perceived by a person with a disability.
  7. With as many jobs being available at there are people looking for jobs, one wonders if an employer might not want to consider getting rid of rotating shifts altogether. Rotating shifts are very difficult for employees to deal with. I get the increase in personnel costs, but considering how tight it is defined applicants to fill jobs, it may be worth considering since eliminating rotating shifts would likely increase morale as well.

Filed Under: ADA, Federal Cases, Final Federal Regulations, Title I Tagged With: 29 C.F.R. §1630.2, 42 U.S.C. §12111, ADA, disability awareness, disability sensitivity, disabled, EEOC v. St. Joseph's Hospital Inc., essential function of the job, handicapped, person with a disability, Rotating shifts, Sepulveda v. Caribbean restaurants LLC, title I

Mandatory Reassignment yet Again, Rule 59(E), EEOC Legal Malpractice?, And Other Matters

December 12, 2016 by William Goren 1 Comment

I know I said that last week’s blog entry would be my last substantive blog entry of the year, but events can always happen to change my mind. Recently, the 11th Circuit  came down with a published decision on December 7, 2016, in EEOC v. St. Joseph’s Hospital, Inc. , which has several issues worth talking about, including: what it means to have a disability; whether a person is a qualified person with a disability; whether the ADA mandates reassignment when a person is no longer qualified to do the job they are currently in; Rule 59(e) motions, EEOC legal malpractice, and why it is important for a plaintiff to have their own attorney. As is usual, the blog entry is divided into categories and they are: facts; was the plaintiff a person with a disability under the ADA; was a plaintiff a qualified individual under the ADA; does the ADA require mandatory reassignment where a person is no longer a qualified individual with a disability for their current job; whether the court erred in granting a Rule 59(e) motion; did the EEOC commit legal malpractice; is there a Circuit court split; and takeaways. Of course, the reader is free to concentrate on any or all of the categories. Later in the week, I will be posting my top 10+1 blog entries of 2016 as determined by your views.

I

Facts

In short, the plaintiff sought a reasonable accommodation in the form of a job reassignment to another unit at the hospital because she required the use of a cane that posed a safety hazard in the psychiatric ward where she worked. She was given the opportunity to apply for other jobs at the hospital, but was required to compete for them. When she did not obtain another hospital position, the hospital terminated her employment and the EEOC brought suit on her behalf.  While that is an excellent summary, much more detail is needed. In particular:

  1. Plaintiff had a condition called spinal stenosis. She also developed arthritis and underwent hip replacement in 2009. It was at that point in time she began to use a cane to alleviate her back pain and to provide support. Without the cane, the plaintiff, 62 years old and obese, could only walk short distances and would need to stop to realign her body.
  2. During the course of a disciplinary action in October of 2011, she was observed using a cane in the psychiatric ward. The Director of Behavioral Health Operations was concerned that patients could use the cane as a weapon. Once the plaintiff was demoted, the hospital advised her that she could no longer use the cane in the psychiatric ward because it posed a safety risk.
  3. The Manager of Team Resources spoke to the plaintiff and offered her the opportunity to remain employed with the hospital and gave her 30 days to identify and apply for other positions.
  4. Normally, the hospital did not permit an internal candidate to apply for a transfer unless they had been in the current position for at least six months and had no final written warnings in their record, and the plaintiff met neither criteria. Even so, the hospital waived the requirements and allowed her to compete with other internal applicants as opposed to being in the general pool of job applicants. Although the hospital authorized the plaintiff to apply to internal channels as an active employee, all of her job applications were as an external applicant.
  5. The Team Resources Director told the plaintiff that it wasn’t the hospital’s job to get a job for the plaintiff, but they were available to answer questions and guide her through the process. She also stated to the plaintiff that she was not charged with reassigning the plaintiff to another position.
  6. The plaintiff advised the Team Resources Director that she was going on vacation for two weeks at the start of the 30 day period, and that she would not look at the hospital’s job board until her return. The plaintiff never came to the Team Resources Director with questions about the application process, the website, or the particular details of any position. Further, she did not apply for another position until November 11, 2011, which was three weeks into her 30 day allowance. A hospital job board listed over 700 jobs available. The plaintiff did apply for seven positions, three of which were applied for on the last day of the 30 day period and one of which she applied for after her 30 day application had expired.
  7. At trial, the parties focused on three positions that the plaintiff applied for during the 30 day period: educational specialist, care transition coordinator, and home health clinician. The plaintiff was not interviewed for any of these positions.
  8. Following the expiration of her 30 day application, the hospital terminated the plaintiff, but she continued to have access to the hospital’s job board. Even so, she only applied for one additional position on December 17, 2011. Had the plaintiff been further along in the interview process at the 30 day mark, the hospital would have also extended her employment to allow time for the interviewing process.
  9. At trial, the trial court instructed the jury as follows: the jury first had to determine whether the hospital had failed to provide a reasonable accommodation by not assigning plaintiff to the educational specialist, care transition coordinator, or home health clinician position; if yes, the jury had to decide whether the hospital established its affirmative defense that it made a good-faith effort to provide a reasonable accommodation; if no, the jury had to figure out whether the hospital established its affirmative defense that the proposed accommodation would have constituted an undue hardship; and if no, the amount of damages that should be awarded.
  10. Both the EEOC’s and the hospital’s proposed verdict form required the jury to cease deliberations upon a finding that the hospital made good faith efforts to reasonably accommodate the plaintiff.
  11. The jury answered the first question yes finding that the hospital failed to provide a reasonable accommodation. They also answered the second question yes finding that the hospital made good faith efforts to identify reasonable accommodations for the plaintiff. In accordance with the jury verdict form, they then ceased deliberations. Neither party requested the District Court to instruct the jury to render a verdict on the undue burden defense, in addition to its finding of good faith. Accordingly, the District Court entered judgment in favor of the hospital.
  12. Perhaps, in an effort to undo its mistake, the EEOC filed a rule 59(e) motion for alteration of the judgment asking the district court to vacate the good-faith finding, find the hospital liable, and remand for a trial and damages. The EEOC argued the jury’s good-faith finding applied only as a defense to compensatory and punitive damages and not as a defense to liability. The court held that good faith was a defense only to jury awarded damages and not to liability. It then turned to equitable relief and decided that the plaintiff was entitled to reinstatement. The District Court ordered the parties to mediate to determine the specific parameters for the plaintiff’s application for reinstatement, but after one month, the mediator notified the court that the parties had reached an impasse. Plaintiff eventually found full-time work as a telephonic behavioral nurse at a satellite of the MacDill Air Force Base.

 

II

Was the Plaintiff A Person With A Disability?

  1. The plaintiff had spinal stenosis and had undergone hip replacement in 2009. The evidence clearly shows that she was substantially limited in her ability to walk. She depended on the cane to alleviate back pain and provide support for her hip. Without it, she could only walk short distances and would have to stop, line up her body, and balance herself.
  2. Walking is a major life activity under the ADA.
  3. With the amendments to the ADA, the threshold issue of whether a person has a disability does not require extensive analysis. Accordingly, plaintiff was a person with a disability under the ADA.

III

Was The Plaintiff Qualified Individual Under The ADA?

  1. It is not relevant whether the plaintiff could perform her then-current job in the psychiatric ward because she sought reassignment. When an employee seeks reassignment as a reasonable accommodation, the critical question is deciding whether she is a qualified individual for those new jobs and not whether she was qualified for her current position. That view is supported by the ADA itself, 42 U.S.C. §12111(8), which says that the relevant position is the one that the individual holds or desires.

IV

Does the ADA Require Reassignment Without Competition for A Person with A Disability No Longer Qualified for Their Current Job and Who Is Seeking Reassignment?

 

  1. While the ADA says an employer must reasonably accommodate the employee with a disability, it does not say how an employer must do that. Rather, it offers a nonexclusive list of accommodations that may be reasonable with one of them being reassignment to a vacant position.
  2. The ADA does not say or imply that reassignment is always reasonable. In fact, the use of the word “may,” argues just for the opposite. Namely, that reassignment is reasonable in some circumstances but not in others.
  3. In the 11th Circuit, employers are only required to provide alternative employment opportunities reasonably available under the employer’s existing policies.
  4. In a footnote, the court notes that had Congress understood the ADA to mandate reassignment, it could easily have used mandatory language but it did not. Such a decision reflects that Congress did not intend reassignment to be required in all circumstances.
  5. Requiring reassignment in violation of an employer’s best-qualified hiring or transfer policy is not reasonable in the run of cases. Since employers operate their businesses for profit, as a general rule, 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. Further, when it comes to hospitals, the well-being and lives of patients can depend upon having the best qualified personnel. Undermining a hospital’s best qualified hiring transfer policy imposes substantial costs both on the hospital and potentially on patients as well.
  6. The intent of the ADA is that an employer needs only to provide meaningful equal employment opportunities.
  7. The ADA was never intended to turn non-discrimination into discrimination against persons without disabilities.
  8. The ADA is not an affirmative action statute and only requires the employer to allow the person with a disability to compete for the job; it does not require the employer to turn away a superior applicant. Accordingly, the District Court did not err by failing to instruct the jury that the ADA requires reassignment without competition.
  9. The 30 day period to identify a new position was a reasonable amount of time. In particular: in addition to the 30 days to find a job, the hospital told her that the time period would be extended for any position for which the plaintiff was being considered; the Team Resources Director instructed the plaintiff’s supervisor to check with her before terminating the plaintiff’s employment because the Team Resources Director knew that plaintiff could still have outstanding applications at the time; and even once terminated, the Team Resources Director told the plaintiff she could continue identifying and applying for positions.
  10. The evidence was such that the jury’s verdict that the hospital failed to reasonably accommodate the plaintiff by not assigning her to one of the three positions was not an appropriate one to be disturbed.
  11. The evidence also supported the jury’s finding that the hospital acted in good faith when it: waived the prohibition against applying for an internal job transfer despite the plaintiff’s disciplinary history and demotion; assigned a person to assist the plaintiff in the application process for other positions and gave her 30 days to identify and apply for jobs; waived the requirements for internal transfer; and would have extended her employment if she was in the process of seeking reassignment to another position.

V

Did the Court Err in Granting the Motion to Alter the Judgment?

  1. Both parties proceeded as if a good-faith finding absolved the defendant of all ADA liability.
  2. The EEOC’s own proposed jury instructions and verdict form read together, treated good faith as a complete defense to liability. The verdict form unequivocally did so by instructing jurors that if they found that the hospital had made a good-faith effort to identify and make a reasonable accommodation for the plaintiff, they were to end of deliberations without deciding whether the plaintiff’s requested accommodation would impose an undue hardship on the hospital.
  3. The jury instructions on good faith and undue hardship both state that a finding of either good faith or undue hardship obviates the need for a verdict on damages.
  4. Undue hardship is a complete defense to ADA liability.
  5. No doubt exists that any reading of the jury instruction and verdict leads to the logical conclusion that the parties believed that the jury’s finding of good faith equated with a hospital verdict.
  6. It was only after the District Court entered judgment that the EEOC filed a rule 59(e) motion for the first time raising the issue that good faith only precludes jury awarded damages. As such, this rule cannot be used to raise new legal theories or arguments, much less one contradicting verdict forms or instructions that the moving party proposed to the District Court.
  7. Accordingly, the District Court abused its discretion and should have denied the motion and left in place the original judgment for the hospital instead of allowing the EEOC to correct it decision because of its poor strategic choices.
  8. Since the Rule 59(e) standard was not met, the court specifically declined to address whether a good faith defense is an absolute defense to ADA liability. For that matter, it wasn’t necessary to address the hospital’s undue burden defense or the denial of equitable remedies to the plaintiff.

VI

Could You Argue That the EEOC Committed Legal Malpractice?

 

  1. The ADA makes it quite clear that good faith is a defense to damages (see, 42 U.S.C. §1981a(a)(3), but not to liability. Accordingly, if an employer shows good faith, they can escape damages, but that does not mean they can escape equitable relief.
  2. In light of that, it is quite odd that the EEOC did not ask the court to render a verdict on the undue burden defense, in addition to its finding of good faith.
  3. Even assuming the EEOC committed legal malpractice, an argument which I think can be made, does the plaintiff have any recourse. That is, could the aggrieved person sue the EEOC for legal malpractice? The answer is unequivocally no because the EEOC cannot engage in an attorney-client relationship with an aggrieved person since it does not represent that person’s interest. See Adler v. United States, 2012 U.S. Dist. LEXIS 3321 (D. Nev. January 10, 2012).

VII

Is There a Circuit Court Split?

  1. The Seventh Circuit has an opinion on mandatory reassignment that we discussed here. As discussed in that blog entry, the Seventh Circuit took the following approach. First, one has to decide whether mandatory reassignment was ordinarily, in the run of cases, a reasonable accommodation. Second, if so, are there fact specific considerations particular to the employment system that create an undue hardship and make the mandatory reassignment unreasonable. Third, the employee has insert to show that the accommodation is of the type that is reasonable in the run of cases. Fourth, if the employee makes that showing, the burden then shifts to the employer to show that granting the accommodation would impose an undue hardship under particular circumstances of the case. Finally, if the accommodation is not shown to be a type of accommodation reasonable in the run of cases, the employee can still prevail by showing that special circumstances warrant a finding that the accommodation was reasonable under the particular circumstances of the case.
  2. In the Seventh Circuit, the ADA requires employers to appoint employees with disability to the vacant position unless an undue hardship is present or a collective bargaining agreement dictates otherwise.
  3. Comparing the Seventh Circuit decision, including the one from the Northern District of Illinois, with the 11th Circuit, there certainly seems to be a difference in tone between the Seventh and 11th Circuit, particularly with respect to burdens of proof. Also, while not a direct conflict between Circuits, the 11th Circuit opinion is certainly in conflict with the decision from the Northern District of Illinois, which we discussed in this blog entry. In that decision, Judge Kennelly held that an attempt to reassign an employee with a disability to an alternative position is required where that an employee cannot perform the essential function of her position and there are no other available accommodations. He also said that in considering reassignment to a different position, the employer must make a reasonable effort to explore the possibilities with the employee.
  4. The 11th Circuit specifically relies on Huber v. Wal-Mart Stores, a decision which the Seventh Circuit specifically disowns in their decision, for the proposition that the ADA allows for competitive bidding.

VIII

Takeaways:

  1. If this case shows anything, it shows the importance of a plaintiff having his or her own attorney to represent his or her own interest. If the EEOC brings a claim, the actual person alleging discrimination has the absolute right to intervene. If that had happened in this case, presuming an attorney well-versed in the ADA represented the plaintiff, the attorney for the plaintiff could have argued at trial that good faith was not an absolute defense to all ADA liability and upon winning that argument, the jury verdict form would have been corrected. That would have prevented all the problems.
  2. I think an argument can be made that a Circuit court split does exist now on mandatory reassignment. Certainly, the 11th Circuit relying on Huber with the Seventh Circuit explicitly saying they were overruling a case that relied on that decision indicates as much. We also do not know who the next Supreme Court Justice will be. Keep in mind, 60 votes of the U.S. Senate will be needed for the U.S. Supreme Court Justice to even be considered. That said, the United States Supreme Court, even as currently configured, has not been a big fan of affirmative action lately, or anything resembling it. So, competitive bidding is something likely to appeal to the U.S. Supreme Court. Also, competitive bidding is definitely something likely to appeal to the new incoming president considering his business background and his well-known statements over the years of saying that the only thing he is interested in is the best person for the job.
  3. Correcting strategic errors are not grounds for a successful Rule 59(e) motion.
  4. Whether a person has a disability under the ADA doesn’t usually require extensive analysis.
  5. When dealing with cases of reassignment, the issue is entirely focused on whether the individual is a qualified person with a disability for the job that they are seeking. It of course assumes that the person is no longer qualified for the job they currently hold.
  6. 30 days for a person to find another job is a very tight timeframe and an aggressive policy by the employer. One thing this case shows, is that having a policy on reassignment of workers with disabilities is a must. It seems to me that this employer took a chance by being so aggressive in that it gave the employee little time to find a job and the employee had to do it all by herself. Preventive law suggests a better approach might be actively assisting the employee to find a suitable position.
  7. A plaintiff should take full advantage of what an employer offers with respect to finding other jobs in the company when they are no longer qualified in ADA parlance for their current job. Also, the employee would be wise to put off that vacation and take it while in between jobs rather than while the time is running out on their current job.
  8. If you are going to go with the competitive bidding route, my guess is that the Supreme Court will ultimately agree that you can comply with the ADA by using a competitive bidding process, as a preventive measure, it is a good idea to have your reasons in order as to why you hired other candidates and not the person with a disability seeking reassignment.
  9. Jury instructions are critical. Here, it should have been made clear that undue hardship is an absolute defense to ADA liability but if not shown, there can still be ADA liability regardless of whether the employer acted in good faith.
  10. Due to “the strategic errors,” of the EEOC in this case, I don’t think this case would be the best one to take up with the United States Supreme Court.
  11. Attorney fees is an interesting question. The plaintiff winds up losing despite getting a couple of favorable verdicts. But for the EEOC strategic errors, the plaintiff could have received equitable relief. Not sure about the equities in awarding attorney fees where the strategic errors were responsible for jettisoning the case and where the plaintiff did not have her own counsel.
  12. About that jury instruction… A jury instruction that gets it right so to speak like might look like this: 1) Did the employer fail to provide a reasonable accommodation by not assigning plaintiff to a particular job; 2) If yes, did the employer establish its affirmative defense that it made a good-faith effort to provide a reasonable accommodation; 3) If no, what is the amount of damages that should be awarded? 4) Regardless of the answer to whether the employer made a good-faith effort to provide a reasonable accommodation, did the employer establish its affirmative defense that the proposed accommodation would constitute an undue hardship?

 

 

 

Filed Under: ADA, Federal Cases, Title I Tagged With: 11th circuit, 42 U.S.C. §12111(8), 42 U.S.C. §1981a(a)(3), ADA, Adler v. United States, Affirmative-action, EEOC v. St. Joseph's Hospital Inc., EEOC v. United Airlines, Huber v. Wal-Mart stores, Jury instructions, Kirincich v. Illinois state police, legal malpractice, Mandatory reassignment, person with a disability, Qualified person with a disability, reasonable accommodation, reasonably accommodate, reassignment, rule 59(e), Seventh Circuit, title I

Reassignment of employees… Eventually headed to the US Supreme Court

March 8, 2012 by William Goren 3 Comments

Yesterday, in EEOC v. United Airlines, Incorporated, (docket number 11-1774, March 7, 2012 (Seventh Circuit)), the United States Court of Appeals for the Seventh Circuit came down with a decision saying that United Air Lines was under no obligation to guarantee a reassignment to a vacant position for an employee that could no longer do the job they were currently in because of a disability, but could with or without reasonable accommodation do the job of a vacant position. The Seventh Circuit relied upon a prior case from 2000, EEOC v. Humiston-Keeling, Inc. 227 F.3d 1024 (7th Cir. 2000) saying that the Americans With Disabilities Act was not violated where the company had a competitive transfer policy.

In this case, EEOC v. United Air Lines had a reasonable accommodation guideline that said an employee who because of their disability can no longer do the essential functions of their current job even with reasonable accommodation could be transferred to an equivalent or lower level vacant position as a reasonable accommodation. However, that process at United Air Lines is competitive. That is, while employees needing accommodations are given preference (they can submit an unlimited number transfer applications, are guaranteed an interview, and receive priority consideration over similarly qualified applicant), the reassignment is not automatic. That is, United Air Lines is free to hire a different individual should there be a superior applicant to the person with a disability. In essence, the Seventh Circuit said that their hands were tied because of prior precedent from 2000. However, this panel of judges invited the entire Seventh Circuit to hear this case, a rehearing en banc, because this panel had doubts as to whether the decision relied upon here was still good law in light of United States Airways Inc. v. Barnett, 535 U.S. 391 (2002)

Thus, the question becomes what did United States Airways Inc. v. Barnett have to say about whether an assignment of a person with a disability to another position is something mandated by the Americans with Disabilities Act. The problem is that United States Airways Inc. v. Barnett is all over the place with respect to whether an employer with a seniority system has the obligation to reassign a person with a disability to another position they are otherwise qualified to do within the company. Depending upon which opinion you read in Barnett you get different answers. For example, Justice Breyer’s opinion in which Chief Justice Rehnquist, Justice Stevens, Justice O’Connor and Justice Kennedy joined said that it would be a very unusual set of circumstances that would require an employer to override a seniority system and mandate that the employer transfer an individual with a disability to another position that they could perform with or without reasonable accommodations. It is not clear how the majority view applies to this case being discussed here since nothing in EEOC v. United Airlines indicates that a seniority system is involved.

Justice O’Connor and Justice Scalia have opinions that are a bit broader in scope than the majority opinion. Justice O’Connor’s concurring opinion with respect to determining when in her opinion an employer would have the obligation to reassign a person with a disability to a position that they could do with or without reasonable accommodation, focused upon whether that position was vacant. That is, if a position was vacant, a position which no employee currently worked in and to which no individual had a legal entitlement, then to Justice O’Connor the employer would have the obligation despite a seniority system to reasonably accommodate the person with a disability by the transfer. Therefore, application of this rule to the case being discussed here would result in the person with the disability being able to transfer into that position as a matter of right, assuming that position was vacant.

Justice Scalia’s dissenting opinion in which Justice Thomas joined has another view on the matter. In his dissenting opinion he said that the Americans with Disabilities Act envisions the elimination of the obstacle of the current position when there was an alternate position freely available. That is, if the person with a disability was qualified for the position he or she was seeking reassignment to and no one else was seeking it or no one else seeking it was better qualified, then the Americans with Disabilities Act demanded that the person with the disability be given that position. In other words, an employer does not have to reassign a person with a disability to an open position if another person has superior qualifications to the person with a disability. In short, if Justice Scalia’s view prevails, then United Air Lines competitive transfer policy, which gives a preference but not an entitlement to the person with a disability would be upheld.

I just heard a CLE (6/18/ 2012) where an EEOC commissioner said that it was their view that a person with a disability seeking reassignment who was otherwise qualified would not have to compete for a job if the job was equal to or lower than their current job. We will see if the courts go along with this.

So where does this leave things. It really comes down to whether at some point the United States Supreme Court adopts the view of Justice O’Connor, no longer on the court, or Justice Scalia, which justice Thomas joined. I long ago gave up predicting how the United States Supreme Court might rule on a matter involving the Americans with Disabilities Act. As a matter of preventive law and good employee relations, Justice O’Connor’s approach bears serious consideration. That said, there is something intuitive about Justice Scalia’s view and considering the changes in the United States Supreme Court, his view could well prevail, though one never knows.

Filed Under: Federal Cases, General, Title I Tagged With: Americans with Disabilities Act, EEOC, EEOC v. United Airlines, EEOC v.Humiston-Keeling, entitlement to reassignment, essential functions, good employee relations, Justice O'Connor, Justice Scalia, Justice Thomas, mandatory reading assignment, Mandatory reassignment, otherwise qualified, person with a disability, preferences, preventive law, reasonable accommodations, reassignment, seniority system, United States Airways v. Barnett, vacant position, vacant position essential functions

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  • Midwest Center for the Law and Deaf
  • National Association of Attorneys with Disabilities (NAAD)
  • Understanding the Americans with Disabilities Act

Articles

  • ADA and Mediation/Arbitration: Things to Think About
  • Affirmative-action and persons with disabilities
  • Americans with Disabilities Act Claims: Is a Mixed Motive Jury Instruction Dead?
  • An ADA Checklist as You Go About Your Practice
  • Disability compliance for higher education interview on why colleges and universities should perform ADA compliance audits
  • Expect huge impact from DOJ regulations implementing Titles II and III of ADAAA
  • Help your institution avoid some common mistakes when dismissing students with disabilities
  • Internet addiction, ADA, and employment
  • Internet and Title III of the ADA
  • Is Your University or College's Homepage Accessible to Prospective Students with Visual Impairments?
  • Legal Liability of Buying or Developing Inaccessible Technology
  • Reassignment and the ADA: Is It a Matter of Right and How Do You Prove It up?
  • Service dogs and the ADA
  • Should Your Law Firm's Internet Site Be Accessible to the Persons with Disabilities
  • The Americans with Disabilities Act and Employment
  • The Ins and Outs of Nevada’s Service Animal Laws
  • What is the statute of limitations for ADA claims

Blogroll

  • architectural accessibility
  • disability law blogspot
  • FMLA Insights Blog
  • labor and employment law blog (management)
  • Lawffice Space Blog
  • management employment law blog (California based firm)
  • Ohio Employment lawyer blog (Jonathan Hyman-management)
  • PLAINTIFF California labor and employment law blog
  • plaintiff employment law blog
  • Robin Shea's employment and labor law insider blog (management-Constangy, Brooks & Prophete)
  • Second Circuit civil rights cases
  • The blog for Supreme Court goings on
  • The employer handbook blog
  • Title III and Fair Housing Act Blog (defense)
  • Title III and II ADA blog
  • Title III blog business side (Seyfarth Shaw)
  • Workplace safety and health law blog

Greatest Hits

  • ADA and ADA Related Cases at the Supreme Court: Where They Have Been and What Is Next
  • ADA and the Applicable Statute of Limitations
  • ADA compliance auditing for higher education
  • ADA Compliance Is a Nondelegable Duty
  • Are public colleges and public universities immune from suit as a result of sovereign immunity in ADA matters
  • Can You Get Compensatory and Punitive Damages When Alleging Retaliation
  • Just When Does the Statute of Limitations BEGIN to Run in ADA Cases
  • Service dog v. therapy dogs
  • Suing state court system for title II violations
  • Temporary disabilities and the ADA
  • What do you have to show to get compensatory damages under title II of the ADA
  • What does it mean to exhaust administrative remedies under title I of the ADA?
  • Why a recent US Supreme Court opinion is a huge victory for title I plaintiffs (mixed motive)

In the Media

  • ABA Blawg 100 2014
  • ADA and ADR
  • ADA Game Changer: CRST Van Expedited v. EEOC
  • ADA Litigation Game Changer
  • Blog entry on Impact of University of Texas Southwestern Medical Center v. Nassar on the ADA
  • Blog entry on Judge Gorsuch on Disability Rights Linked to by SCOTUS Blog
  • Blog entry on Sheehan v. City and County of San Francisco
  • CBS money watch article discussing website accessibility litigation.
  • CRST Van Epedited blog entry referenced in over lawyered
  • Death Penalty and Intellectual Disabilities Supreme Court Opinion
  • Disability compliance for higher education interview on why colleges and universities should perform ADA compliance audits
  • Does title IIof the ADA/§ 504 of the Rehabilitation Act applied to employment
  • E-bay's Inaccessibility to the Deaf
  • EEOC affirmative action per § 501 blog entry referenced in March 2016 employment Law blog carnival
  • Employment Law Blog Carnival November 2015
  • Expert Interview Series: ADA Consultant William Goren on What You Need to Know About ADA Compliance
  • February 2016 employment Law blog carnival
  • Finding creative solutions within the law
  • Fisher II blog entry referenced in Scotus Blog
  • Fry oral argument blog entry referenced in Scotus Blog
  • Guest Post on Illinois Business Litigator Blog regarding My Burden of Proof When Dealing with Remediation Blog Entry
  • How Fry playing out blog entry referenced by Scotus blog
  • How the legal industry lets down lawyers with disabilities
  • Illinois business litigator blog featuring my blog entry discussing whether a corporation has a retaliation cause of action under the ADA
  • Impact of Abercrombie and Fitch Decision on the ADA
  • June 2015 ABA Journal article on attorneys with disabilities and the preconceptions they face
  • Law practice today members spotlight
  • legal issues of buying inaccessible technologies article posted to the ABA green room
  • Legal pad radio show interview first run Wednesday, February 12 at 7:30am.; Re-airs at Saturday, February 15 at 3:30pm and Monday, February 17 at 9am
  • Legal pad radio show interview first run Wednesday, January 29 at 7:30am.; Re-airs at Saturday, February 1 at 3:30pm and Monday, February 3 at 9am
  • Legal pad radio show interview first run Wednesday, October 23rd at 7:30am.; Re-airs at Saturday, October 26th at 3:30pm and Monday, October 28th at 9am
  • Let's Talk About Arbitration blog entry and other entries featured on the Illinois business litigator blog
  • MH issues and the State Bar
  • Oral Argument in Sheehan v. City and County of San Francisco
  • PBS News Hour piece discussing accessibility of amusement parks for persons with disabilities
  • Reflections on the development of disability as a diversity concern in the legal profession
  • SCOTUS blog references Blog entry discussing the impact of South Dakota v. Wayfair on Internet accessibility litigation
  • SCOTUS blog references Endrew oral argument blog entry
  • SCOTUS Blog references Fry decided blog entry
  • SCOTUS Blog referencing blog entry that Reviews Supreme Court cases and the upcoming Supreme Court cases vis a vis the ADA/disability rights
  • Sevorson decision analyzed
  • Sheehan decision
  • Trimble v. Kroger
  • Voyage Atlanta Profile
  • What's wrong with this job description blog entry featured in December 2015 employment Law blog carnival
  • When to grant more leave after FMLA is exhausted
  • Why ADA is a Good Law

Presentations of interest

  • ADA Hot Issues: Essential Function, Attendance, and Reassignment
  • ADA Hot Issues: Pregnancy, Reassignment, and Legal Issues of Buying Inaccessible Technology
  • Don’t Let The ADA Bite Your Law Firm – Complying With the ADA Instead of Becoming a Target
  • Hot issues in title I and in title II of the ADA
  • Let's Count the Ways the ADA Impacts Your Law Practice
  • Understanding the Americans with Disabilities Act, Fourth Edition – Hot Off the Press – A Brown Bag Series

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