When you can’t reasonably accommodate a disabled employee in the current position, do you have to give the employee a vacant position or can you follow your usual, competitive process? In EEOC v. St. Joseph’s Hospital, Inc., the Eleventh Circuit found that employers need only provide meaningful equal employment opportunities to comply with the Americans with Disabilities Act (ADA), not turn nondiscrimination into discrimination against the non-disabled. Importantly, the Court also found that giving the disabled 30 days to apply for other positions was a reasonable accommodation.
Ms. Bryk was a nurse in the psychiatric ward St. John’s Hospital. After experiencing back pain, she was diagnosed with a condition known as spinal stenosis and began using a cane. Without the cane she could only walk short distances and stopped frequently, but her use of the cane in the psychiatric ward caused concern over patient safety where mentally-ill patients could use the cane as a weapon. The Hospital raised the concern with Ms. Bryk, who then provided a doctor’s note recommending use of the cane. The Hospital ultimately advised Ms. Bryk that she could not use the cane in the psychiatric ward and gave her 30 days to identify and apply for another position with the hospital. Notably, the Hospital waived its normal prohibitions on internal candidates applying for a transfer unless they had been in their current position for six months and had no written warnings in their record. Thus, the Hospital allowed Ms. Bryk to compete with other internal applicants and not be left in the general pool of applicants. Ms. Bryk applied for three positions during the 30-day period, but the Hospital did not interview her for any of the positions. After the 30-day application period ended, the Hospital terminated Ms. Bryk. Given her newly unemployed state, Ms. Bryk filed an EEOC charge and the EEOC ultimately sued the Hospital for disability discrimination, claiming the Hospital failed to reasonably accommodate her. The parties filed cross-motions for summary judgment, and the district court found that the 30 day period to identify a vacant position was reasonable as a matter of law, but whether the Hospital provided a reasonable accommodation by reassigning her was a question of fact for the jury. At trial, the jury determined that the Hospital failed to provide a reasonable accommodation but that the Hospital made good faith efforts to identify the reasonable accommodation so the district court rendered judgment in favor of the Hospital.
ADA General Requirements
The ADA prohibits discrimination against a qualified individual on the basis of disability and requires employers to provide reasonable accommodations that allow a disabled employee to perform the essential functions of the job. An aggrieved employee must show that at the time of an adverse employment action, she had a disability, was a qualified individual, and was subjected to unlawful discrimination because of her disability. Ms. Bryk was disabled based on her “gait dysfunction” and was a qualified individual. The case, however, focused on whether the ADA required Ms. Bryk to be reassigned without competition for the position. The EEOC contended that the ADA mandated noncompetitive reassignment and that the district court’s failure to instruct the jury that the ADA required reassignment without competition was erroneous.
The Court held that the ADA does not require reassignment without competition for, or preferential treatment of, the disabled. While the ADA requires reasonable accommodation it does not dictate how an employer must reasonably accommodate. Part of the ADA’s non-exhaustive list of possible, not mandatory, accommodations states that the employer may include “reassignment to a vacant position,” but does not imply that that reassignment is always reasonable.
Relying on previous cases, the Court noted that “employers are only required to provide alternative employment opportunities reasonably available under the employer’s existing policies.” One related U.S. Supreme Court case, U.S. Airways, Inc. v. Barnett, held that the ADA does not “ordinarily” require an employer to assign a disabled employee to a particular position if to do so would override the employer’s established seniority system. Such a framework comes into play where the job reassignment/reasonable accommodation is alleged to violate the disability-neutral policy of the employer. Although it did not have an established seniority system, St. Joseph’s Hospital had a “best-qualified applicant policy” and the Court reasoned that:
Requiring reassignment in violation of an employer’s best-qualified hiring or transfer policy is not reasonable “in the run of cases.” As things generally run, 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. 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 personel. Undermining a hospital’s best-qualified hiring or transfer policy imposes substantial costs on the hospital and potentially on patients.
After holding that the ADA does not mandate noncompetitive reassignment (thus upholding the challenged jury instruction ), the Court went on to affirm the jury’s verdict in favor of the Hospital. The jury found that although the Hospital failed to reasonably accommodate Bryk by not assigning her to one of the three vacant positions, it absolved itself from ADA liability by its good faith efforts to assist Bryk with applying for the positions, waiving requirements that would have barred her from applying for positions, and giving 30 days for her to apply.
30 Days Was a Reasonable Amount of Time to Apply for Vacant Positions
The Hospital provided Ms. Bryk 30 days to find and apply for a new job. Curiously, Ms. Bryk did not use the bulk of the 30 days—instead she went on vacation and waited three weeks to begin her job search. The Hospital would have extended the period for any position for which Ms. Bryk was being actively considered. However, once the 30 days expired and she had no scheduled interviews, the Hospital terminated her. It told her she could continue identifying and applying for other positions. The Court affirmed all that to be a sufficient approach.
Employers are often challenged to find a reasonable accommodation and mandating that a qualified individual be placed into a new position without even having to compete for that position would have placed a significant burden on employers. There are several takeaways from this decision.
- It is reasonable to have the disabled employee compete for a vacancy. The Court concluded “that the ADA only requires an employer allow a disabled person to compete equally with the rest of the world for a vacant position.”
- 30 days to apply for internal vacancies is reasonable.
- Be flexible. Consider bending some rules to accommodate the disabled employee. Waiving eligibility requirements as an accommodation is easy and considered reasonable. Before you pull the trigger, look at the current status—is the employee about to have an interview? Waiting to hear back from an interview? Waiting a few days to see if the employee gets selected for the vacancy could save you a lawsuit.