Rejecting the EEOC’s position that an employer must reassign a qualified individual with a disability to a vacant position as a reasonable accommodation so long as the individual was minimally qualified for the position, the 11th Circuit on Dec. 7, 2016 held that even disabled workers in need of a reasonable accommodation must compete with other qualified employees for the vacancy. In EEOC v. St. Joseph’s Hosp., Inc., the plaintiff was a nurse who needed a cane for mobility. Because the cane posed a safety hazard in the psychiatric ward where she worked, she was given the opportunity to apply for other jobs, but was not given any preference due to her disability. When she did not obtain any other position at the hospital, she was terminated and the EEOC brought suit on her behalf.
After a jury trial resulted in a defense verdict, the trial court entered an injunction order requiring the hospital to mediate, which failed to result in reinstatement. On appeal, the 11th Circuit expressly addressed the question, “Does the ADA mandate noncompetitive reassignment?” The court concluded that the ADA does not require such preferential treatment of the disabled. In reaching this conclusion, the court relied on the statutory language that includes “reassignment to a vacant position” as part of a non-exhaustive list of items that the term reasonable accommodation “may include.” According to the court, the use of the word “may” implies that reassignment will be reasonable in some circumstances but not others.
The court also noted its well-settled ADA precedent that employers are only required to provide alternative employment opportunities that are reasonably available under the employer’s existing policies. As examples, the court cited prior cases holding that the ADA does not require employers to reassign disabled employees in violation of its governing civil service rules or seniority rights found in a collective bargaining agreement. Similarly, the court did not believe that the hospital had to violate its policy of filling vacancies based on merit. In fact, the court stated:
Passing over the best-qualified job applicants in favor of less-qualified ones is not a reasonable way to promote efficiency or good performance. In the case of hospitals, which is this case, the well-being and even the lives of patients can depend on having the best-qualified personnel. Undermining a hospital’s best-qualified hiring or transfer policy imposes substantial costs on the hospital and potentially on patients.
Finally, the court held that the intent of the ADA is to provide meaningful but equal employment opportunities for the disabled and was never meant to require discrimination against the non-disabled.
The St. Joseph’s Hospital decision adds to split in the circuit courts of appeals on this issue. As the court notes in a footnote, it is consistent with decisions from the 5th and 8th Circuits, but is contrary to the decisions of the 7th, 10th and D.C. Circuits, which agree with the EEOC that the reasonable accommodation obligation requires employers to violate their own policies, including those that require the hiring of the best qualified candidates. The 6th Circuit in Hedrick v. Western Reserve Care System and Forum Health has also held that an employee needing reasonable accommodation is not entitled to “preferential treatment” in reassignment.