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Appellate Court Answers Whether Reassignment to a Vacant Position Without Competition Constitutes a Reasonable Accommodation Under the ADA

In E.E.O.C. v. St. Joseph’s Hospital, Inc., 842 F.3d 1333 (11th Cir. 2016), the United States Court of Appeals for the Eleventh Circuit addressed several issues concerning a former employee’s claim of discrimination under the Americans With Disabilities Act (“ADA”), including whether a reasonable accommodation under the ADA requires reassignment to a vacant position without the disabled individual competing with others for the job. The Eleventh Circuit held the ADA does not require the reassignment without competition.

In St. Joseph’s Hospital, Leokadia Bryk was a nurse who worked in the psychiatric ward of the hospital from January 1990 until her employment was terminated in November 2011. In 2002, Bryk was diagnosed with spinal stenosis, which caused back pain. She later developed arthritis and had hip replacement surgery in 2009. She started using a cane to help ease her back pain and to help her walk around, as she could only walk short distances and she often needed to stop to realign herself. By 2011, the hospital determined that Bryk could not use a cane in the psychiatric ward because patients could use it as a weapon and, thus, it posed a safety risk. The hospital offered Bryk the opportunity to identify and apply for other positions at the hospital. Ordinarily, the hospital did not allow internal candidates to apply for a transfer, except in limited situations that Bryk did not satisfy. The hospital, however, waived its restriction on transfers for Bryk and allowed her to compete with other internal applicants, but did not include her in the general applicant pool. Bryk applied for a variety of jobs, three of which were the focal point of the trial – Educational Specialist, Care Transition Coordinator, and Home Health Technician. The hospital did not interview Bryk for any of these positions and, without any jobs on the horizon for Bryk, the hospital terminated her employment on November 21, 2011.

The Equal Employment Opportunity Commission filed suit on Bryk’s behalf. The EEOC argued numerous issues, including that the hospital violated the ADA by not reassigning Bryk to a vacant position and having her compete with other job applicants. The trial court ruled that providing Bryk 30 days to identify vacant jobs for which she was qualified was reasonable as a matter of law, but, with respect to the issue of competition, the court stated that it “does not hold that the [h]ospital had an obligation to reassign Leokadia Bryk to the vacant positions for which she qualified without competition as a matter of law.” The court further explained that requiring competition is “one factor out of many, that the jury may consider regarding the reasonableness of the accommodation.” Following a jury verdict, the trial court entered judgment in favor of the hospital. The parties filed cross-appeals on a number of issues, but, for purposes of this post, the only issue we will address concerns the requirement of competition when seeking reassignment as a reasonable accommodation.

The Eleventh Circuit framed the issue on appeal as “the district court’s holding as a matter of law that the ADA does not mandate reassignment without competition” and noted that the EEOC took the position that the ADA “mandates noncompetitive reassignment and that had the jury been so instructed, it would not have found that the [h]ospital acted in good faith.”

Looking at the text of the statute, the court noted that the ADA simply requires that an employer must provide a reasonable accommodation to a disabled employee, but the statute “does not say how an employer must do that.” The court further noted that the statute includes a non-exhaustive list of examples that “may” constitute a reasonable accommodation and the statute “does not say or imply that reassignment is always reasonable.”

The Eleventh Circuit relied on the text of the statute and case precedent to determine that reassignment without competition was not mandated by the ADA. First, the court determined that the statute’s use of the term “may” when describing reassignment as a possible accommodation suggested that reassignment will be reasonable only in some circumstances and not others. Second, the court noted case precedent held that “employers are only required to provide ‘alternative employment opportunities reasonably available under the employer’s existing policies.’” The court proceeded to examine a Untied States Supreme Court decision that held the obligation to examine potential reassignment did not trump an employer’s established seniority system. In other words, reassignment was not guaranteed or required.

The Eleventh Circuit then analogized the hospital’s “best-qualified applicant policy” to the seniority system in the Supreme Court case. The court held that “[r]equiring reassignment in violation of an employer’s best-qualified hiring or transfer policy is not reasonable ‘in the run of cases.’” The court explained that “[p]assing over the best-qualified job applicants in favor of less-qualified ones is not a reasonable way to promote efficiency or good performance.” The court further found that in the case of hospitals, which was the case before it, “the well-being and even the lives of patients can depend on having the best-qualified personnel” and undermining that objective could “impose[] substantial costs on the hospital and potentially on patients.” Accordingly, the Eleventh Circuit concluded that the “ADA only requires an employer [to] allow a disabled person to compete equally with the rest of the world for a vacant position.” The court noted that this determination is consistent with the ADA’s intent of requiring employers “only to provide meaningful equal employment opportunities” and that “[t]he ADA was never intended to turn nondiscrimination into discrimination” “against the non-disabled.”

The Eleventh Circuit’s decision in St. Joseph’s Hospital is significant in that it clarifies employers only need to give disabled employees an opportunity to compete for vacant positions; they are not required to reassign disabled employees to vacant positions when they are not the most qualified for the position. The court may have left some wiggle room on the issue, however, in that it noted the hospital had a “best-qualified applicant policy.” Thus, if employers do not establish a “best-qualified” policy or practice, they may arguably remain vulnerable to a noncompetition argument in the future, although it would seem odd and counterintuitive for a court to require an employer to hire an applicant who the employer determined was not the best-qualified for the position simply because it did not have an established written policy or practice stating that it seeks to hire the “best-qualified” applicants.

If you have any questions regarding this post, please contact Stephen B. Stern at sstern@hwlaw.com or (410) 260-6585.

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