It’s an all too common situation: an employee’s medical condition results in permanent restrictions that prevent the employee from performing essential job functions that she used to be able to do. It is not reasonable to modify the job so the employee can keep the position. There is a vacancy in another department for which the employee is qualified, and she wants the job. But, the employer has another candidate who is more qualified for the vacant position, but does not have a disability. Does the ADA require the employer to reassign the employee with a disability in favor of hiring someone else more qualified?
What Does the Law Require?
In its published Enforcement Guidance, EEOC takes the position that the ADA requires the employer to do just that. But, in a recent opinion, the U.S. Court of Appeals for the Eleventh Circuit rejected the EEOC’s position. (EEOC v. St. Joseph’s Hospital, Inc., 11th Cir. 12/7/2016). The Court ruled the ADA does not require non-competitive reassignment as a reasonable accommodation for a disability. In other words, it is legal to choose a more qualified, non-disabled employee over a less qualified employee with a disability. The Eleventh Circuit (which covers Alabama, Florida, and Georgia) cited previous opinions from courts in the Fifth and Eighth Circuits (which includes Iowa) that already followed this rule.
In theory the rule is simple, but like many decisions involving the employment discrimination laws, it is more complicated in practice. The EEOC v. St. Joseph’s Hospital case shows why. The plaintiff was a nurse who had worked various jobs in the psychiatric unit for more than 20 years. She developed back pain from spinal stenosis, which ultimately made it difficult for her to walk more than short distances without stopping. The Plaintiff obtained a doctor’s note recommending she use a cane, which would provide support and allow her to walk longer distances. But, the hospital was concerned the cane presented a safety risk in the psychiatric unit because patients could use it as a weapon.
Despite the doctor’s recommendation, the hospital told the Plaintiff she could no longer use the cane because of the safety risk. Rather than immediately terminate her employment, the hospital offered Plaintiff 30 days to apply for other, open positions. Technically, Plaintiff was not eligible for a transfer because she had been in her existing position for less than six months and was working under a final written warning. But, the hospital waived those requirements as an accommodation.
The Plaintiff applied for three other jobs. The hospital hired other, non-disabled candidates for two of them. The third job was not actually available and was posted in error. In the end, because plaintiff was not able to find another position, she was terminated.
Here is where it got complicated. Even though the court ruled the hospital was not required by law to favor Plaintiff over other more qualified candidates, the question of who was the more qualified candidate was left for the jury to resolve. The jury found the hospital failed to provide a reasonable accommodation for the Plaintiff by not reassigning her to one of the jobs for which she applied. The hospital still won the case because the jury also concluded the hospital made good faith efforts to find a reasonable accommodation. But, it is important to note the good faith defense eliminated the liability in this case because of some technical issues relating to the form of the jury instructions. An employer’s good faith defense in most cases will protect only from damages, but not equitable relief or attorney’s fees.
What Should Employers Do?
The good news is, the the St. Joseph’s case reaffirms principle that an employer may hire the best candidate for the position, with or without a disability. On the other hand, it remains a significant litigation risk to fill a vacant position with someone other than an employee with a disability, when the disabled employee will be terminated if not selected. This is especially true for long term employees. There is a very good chance a jury will be second guess the employer’s decision about which candidate is really the most qualified.
There are a number of policies or practices employers should consider that will make these types of claims more defensible: 1) employers should have a stated policy or demonstrated practice of hiring the best candidate for the job; 2) the stated qualifications for a position should match as much as possible the actual job duties; 3) the stated qualifications should emphasize criteria that are more objective (e.g., education, years of experience); 4) subjective factors, such as the “right fit,” positive attitude, etc. are relevant but should be subordinate to objective criteria 4) identify and document the specific reasons the chosen candidate is more qualified than other candidates, especially if it is not obvious based upon the objective criteria.
Image Credit: from Google, Creative Commons license, Handicapped sign.