Disabled Workers Must Compete for Job Reassignments

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By Patrick Dorrian

Dec. 7 — Businesses don’t have to reassign their disabled workers into open positions ahead of more qualified, nondisabled employees, a federal appeals court in Atlanta ruled ( EEOC v. St. Joseph’s Hosp. , 2016 BL 406826, 11th Cir., No. 15-14551, 12/7/16 ).

The decision is important because the U.S. Court of Appeals for the Eleventh Circuit rejected a position championed by the federal agency tasked with enforcing federal job rights laws that disabled workers are generally entitled to reassignment free from competition.

The Equal Employment Opportunity Commission “has been pressing this issue forever,” Rae T. Vann of NT Lakis LLP told Bloomberg BNA Dec. 7. She said a contrary ruling by the Eleventh Circuit would have undercut the notion that an employer’s business judgment is entitled to deference under the Americans with Disabilities Act, including with regard to operational efficiency and employee performance.

The Washington-based management firm represented employer advocate the Equal Employment Advisory Council as an amicus in the case.

The Eleventh Circuit also rejected the EEOC’s argument that the other federal appeals courts are divided on the question.

Rather, the Eighth Circuit similarly held in 2007 that the ADA isn’t an affirmative action law and that employers aren’t required to turn away superior job candidates in favor of disabled workers seeking reassignment as a work accommodation, visiting Judge C. Huck said for the Eleventh Circuit. The Fifth Circuit’s view is consistent with the Eighth Circuit’s ruling, Huck added.

Contrary to the EEOC’s argument, the Seventh Circuit didn’t actually decide the question in a 2012 ruling, nor did the Tenth Circuit in 1999, Huck found. The District of Columbia Circuit discussed the issue in a 1998 decision but only in nonbinding dictum, Huck said.

EEOC Sued for Nurse Who Used Cane

The ruling upholds part of a lower court’s decision in favor of Tampa, Fla.'s St. Joseph’s Hospital in a case brought by the EEOC on behalf of former nurse Leokadia Bryk. Beginning in 2009, Bryk had used a cane while working to alleviate back and hip pain stemming from arthritis, spinal stenosis and hip replacement surgery.

However, the hospital informed Bryk in October 2011 that she couldn’t use her cane while working because she worked in the psychiatric ward and using it there posed a safety risk to employees and patients.

But she was given the chance to remain with St. Joseph’s if she was able to find a suitable open position she could transfer into within 30 days. The hospital also said it would extend the 30-day window for any job Bryk was being considered for when the initial 30 days lapsed.

Bryk ultimately failed to obtain a transfer within the hospital and was fired. The EEOC sued, arguing in part that she should have been granted a reassignment to another job outside of the psychiatric ward without having to compete for the position.

Court Cites Other Reasons for Holding

In addition to recounting the similar rulings by the Eighth and Fifth circuits, the Eleventh Circuit also relied on the express language of the ADA in holding that the statute doesn’t require an employer to abandon a “best-qualified applicant policy” like the one followed by St. Joseph’s and give disabled workers “preferential treatment” in job reassignments.

“The ADA does not say or imply that reassignment is always reasonable,” Huck wrote. Rather, the ADA uses the word “may,” which indicates that a reassignment may sometimes be a reasonable accommodation and that other times it may not. The ADA only requires employers to reasonably accommodate disabled workers, Huck said.

The court also cited its own prior rulings on the issue as well as the U.S. Supreme Court’s holding in U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 12 AD Cases 1729 (2002).

The justices held in Barnett that the ADA doesn’t require an employer to ignore an established seniority system for awarding reassignments when a disabled worker seeks reassignment as an accommodation, Huck said. As in Barnett, he found, requiring an employer to violate a best-qualified applicant policy in favor of a disabled worker wouldn’t ordinarily be reasonable and the EEOC didn’t show otherwise here.

“As things generally run, employers operate their businesses for profit, which requires efficiency and good performance. Passing over the best-qualified applicants in favor of less-qualified ones is not a reasonable way to promote efficiency or good performance,” the Eleventh Circuit wrote.

Vann told Bloomberg BNA the facts of the instant case provide a good example of why that’s so. “You don’t go to the hospital to be treated by someone who is minimally qualified,” she said.

Judges Ed Carnes and Joel F. Dubina joined the opinion.

The EEOC through a spokeswoman Dec. 7 declined to comment on the ruling. Counsel for the hospital didn’t respond Dec. 7 to Bloomberg BNA’s request for comment.

Gail S. Coleman of the EEOC in Washington and Ana Consuelo Martinez, Kimberly A. McCoy and Daniel L. Seltzer of the EEOC in Miami represented the commission. Thomas M. Gonzalez and Erin G. Jackson of Thompson Sizemore Gonzalez & Hearing P.A. in Tampa, Fla., represented the hospital.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

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