Last month, the United States Court of Appeals for the Eleventh Circuit, in EEOC v. St. Joseph’s Hospital, Inc., announced that the Americans with Disabilities Act (ADA) does not, as a reasonable accommodation, require the transfer of a disabled employee into a vacation position without consideration of the qualifications of other candidates competing for the same position.
In St. Joseph’s Hospital, Inc., a disabled nurse sought an accommodation in the form of a job reassignment to another care unit at the hospital because she required the use of a cane, which posed a safety hazard in the psychiatric ward where she worked. In response to the nurse’s accommodation request, the hospital permitted her to apply for other available jobs, but she was required to compete for these positions. When this nurse failed to obtain a new position, the hospital terminated her employment – and eventually, the Equal Employment Opportunity Commission (EEOC) brought suit on her behalf.
On appeal from the District Court’s decision, the Eleventh Circuit was asked to consider whether the ADA requires job reassignment without competition as a reasonable accommodation, as the EEOC advocated.
Bryan Symes, Chicago-Kent 2004, represents management-side clients in the areas of employment and labor law for Ruder Ware, L.L.S.C., Eau Claire. He also represents public and private employers in collective bargaining and all aspects of labor-related litigation.
Significantly, at least according to the Eleventh Circuit, “the ADA does not require reassignment without competition for, or preferential treatment of, the disabled.” To that end, the Court opined, “[r]equiring reassignment in violation of an employer’s best-qualified hiring or transfer policy is not reasonable in the run of cases,” noting 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 concluded that the ADA “only requires an employer [sic] allow a disabled person to compete equally with the rest of the world for a vacant position.” In reaching this conclusion, the Eleventh Circuit joined the Fifth and Eighth Circuits.
At Odds with United Airlines, Inc.?
However, at first blush, St. Joseph’s Hospital, Inc. appears to be at odds with the Seventh Circuit’s 2012 opinion in EEOC v. United Airlines, Inc., which governs the interpretation of the ADA as applied to workplaces located in Wisconsin, Illinois and Indiana.
In United Airlines, Inc., the Seventh Circuit reasoned that an employer’s deviation from its best-qualified selection policy – in favor of a disabled candidate – may indeed be a reasonable accommodation. In reaching this conclusion, the Court repudiated its prior holding on the subject, that the “ADA does not require an employer to reassign a disabled employee to a job for which there is a better applicant, provided it’s the employer’s consistent and honest policy to hire the best applicant for the particular job in question.”
However, the Eleventh Circuit in St. Joseph’s Hospital, Inc. points out that instead of “deciding the issue” concerning transfer without consideration of competition from other candidates, the Seventh Circuit “remanded it to the district court for decision in the first instance.”
The Eleventh Circuit’s interpretation of United Airlines, Inc. is certainly inconsistent with the EEOC’s public characterization of the case, and at a minimum, the Seventh Circuit’s opinion clearly signals that even though an employer may prefer to employ the best-qualified candidates and have a policy to that effect, the deviation from such a policy would not necessarily create an undue hardship for the employer.
A String of Divergent Decisions
The St. Joseph’s Hospital, Inc. decision is the latest in a string of divergent decisions that appear to be headed to the Supreme Court to resolve the split.
Until then, notwithstanding St. Joseph’s Hospital, Inc., employers in Wisconsin and their legal counsel are wise to consider United Airlines, Inc. in evaluating whether a job transfer, without consideration of the qualifications of other candidates competing for the same position, is appropriate or required under the circumstances.