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A Clarion Voice on ADA Accommodation

While merit has typically been a cornerstone in managing talent within an organization, a recent court decision points out that the ADA regulations can run counter to that idea. And if an employer is going to claim hardship for not following the ADA regulations, experts say, it needs to thoroughly document such a hardship.

Thursday, September 27, 2012
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When the U.S. Court of Appeals for the Seventh Circuit reversed the dismissal of a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission against United Airlines Inc., the message for employers was clear: Pay close attention when an employee with disabilities asks for special consideration.

In this case, the circuit court agreed with the EEOC that "reasonable accommodation," as defined by the Americans with Disabilities Act, may require employers to provide employees with disabilities who can't perform their current job with more than the option of looking elsewhere for work.

The court's decision reversed a February 2011 lower district court decision in Illinois that dismissed the EEOC's case against United based on an earlier 7th Circuit decision. But this time the appeals court, in a sense reversing itself, ruled that the earlier decision "did not survive an intervening" Supreme Court decision. This time, the appeals court held that "the ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to the employer."

According to Michelle Anderson, an employment-law attorney in the New Orleans office of Fisher & Phillips, the decision is not surprising, because the U.S Supreme Court decision, from 2002, had already made it clear that unless there is some serious financial hardship for employers, they needed to find a place for employees with disabilities.

"Of course, United Airlines could still prevail in the case. It will go back to lower court to determine if a reasonable accommodation is possible or if there is an undue hardship," Anderson says.

Jim Matthews, a partner at Fox Rothschild and co-chair of the Philadelphia-based firm's labor and employment practice, said the District Court in Illinois initially was bound by the 7th Circuit's earlier decision. But when the latter took a look at the older case in light of the Supreme Court's decision in a similar case in 2002, the lower court's decision didn't survive.

 "The case can proceed and will be decided on the evidence," Matthews said.

 

The EEOC's suit charged that United violated the ADA by refusing to place workers with disabilities in vacant positions for which they were qualified and which they needed in order to continue working. Instead, UAL required these employees to compete for jobs on the company website. The company's practice, the EEOC said, frequently prevented employees with disabilities from continuing their employment.

The 7th Circuit Court of Appeals held that "the ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to the employer."

"The Court's decision will have far-reaching benefits for individuals with disabilities who strive for economic independence and want to work," says EEOC General Counsel David Lopez. "We are pleased that the case may now go forward."

EEOC Appellate Attorney Barbara Sloan says that in defining "reasonable accommodation" to include "reassignment to a vacant position," Congress clearly intended to ensure that employees with disabilities remain productive workers, even when they can no longer do their current jobs due to disability.

"That is, as long as reassignment is possible and poses no undue hardship for the employer," she says.

For employers, the case has two critical considerations, say employment law experts. One, while merit has typically been a cornerstone in managing talent within an organization, this case points out that the ADA regulations can be counter to that idea. And two, if an employer is going to claim hardship for not following the ADA regulations, it needs to thoroughly document such a hardship.

Gary Friedman, a partner in Weil Gotshal & Manges' national employment litigation practice in New York, calls the decision "a clarion voice" with respect to job accommodations and reassignments to vacant positions.

"I don't think anyone who follows U.S. Supreme Court jurisprudence should be shocked," he says.

Friedman says that HR best practices in hiring or promoting are typically "neutral" processes based on performance and merit, so the impact of this decision can be counter-intuitive.

"HR professionals are drilled in and train the workforce to focus on merit, qualifications and performance and to ignore protected characteristics when it comes to hiring and promotions," he says. "This decision is quite the opposite because it says that in certain circumstances, employers have the leeway to give preference to someone who is disabled.

"This should get the attention of HR," he adds. "It is clear that in specific circumstances, you can't use neutral performance practices and policies with respect to filling vacancies as an excuse for not giving preference to a disabled worker if the circumstances so warrant."

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Friedman says what the Supreme Court said in its 2002 case, US Airways Inc. v. Barnett, and what the 7th Circuit echoed, is that the employee has to show that the accommodation requested is reasonable on its face. If that is the case, then the burden shifts to the employer to prove undue hardship in meeting the request.

However, as in the Barnett case, even if the employee can't show it's reasonable on its face by causing undue financial hardship for the employer, the employee can still prevail by showing special circumstances (which is what happened in the 2002 Barnett case). In other words, each situation can be judged on a case-by-case basis and the facts.

"The reasonable accommodation test is admittedly somewhat vague, but the touchstone is, 'Can they do the essential functions of the new job? ' " he says. "A lower skilled or semi-skilled job, for example, makes it easier to satisfy that test."

Friedman says for HR, training operations people about how to manage such a situation is the best way to avoid the potential for litigation.

"For operations people outside of HR, this is not intuitive," he says. "They are trained to look to hire the best person for the job. Of course, they can still do that, but they need to be made aware that if the person laying claim to the job has disabilities, that is going to have to be taken into account."

Fisher & Phillips' Andersen says the main takeaway is that reasonable accommodation is a moving target, but must always be on the radar screen.

"When you do have someone with a disability and they want to continue working, if you have positions then you should look at that," she says. "And when you engage with the employee, make sure it's well documented, especially if you expect to claim an undue financial hardship."

Matthews, of Fox Rothschild, says employers who face such a lawsuit are not going to be able to defend themselves in making the undue hardship claims simply by pointing to a neutral policy or rule that it has used over the years. For example, a seniority system, as was the issue in the Barnett case, would be such a neutral system.

For the employer, he explains, while treating everyone the same in terms of hiring for an open position is logical, with this new development it is critical to stop and think before making any hard and fast decisions.

"If you are engaged with an employee with disabilities who suggests a reasonable accommodation and you don't want to do it because you have a rule or neutral system in place, you have to stop and ask what real harm would it do if I go against your policy," he says.

"If you focus on making the best business decision possible by analyzing the complete and accurate facts of any situation, then EEOC issues will take care of themselves," Matthews says.

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