Seyfarth Synopsis: For several years now, employers and the EEOC have been at odds over whether employers must automatically reassign a disabled employee to an open position as a reasonable accommodation, or whether employers can maintain a policy of hiring the most-qualified individual for the position, by requiring a disabled employee to compete for open positions against other interested employees. Fortunately, in two recent decisions, the Eleventh Circuit and a Texas district court have helped clarify that an employer's policy of hiring the most-qualified individual for a job does not violate the ADA.
Many employers post all open positions at their facilities and allow all qualified employees to bid on any job they desire. This allows the company to hire the right employee into the right position, and allows everyone to know that promotions and job opportunities are decided by merit. These bidding policies help the employer promote open and fair policies, and they promote efficiency, performance, and trust in the workforce.
However, in recent years, the EEOC has challenged these policies, alleging that they discriminate against disabled employees. Accordingly to the EEOC, employers must automatically place even a minimally-qualified disabled employee into an open position as a reasonable accommodation, even if the employer would otherwise open the position to bidding by all employees and even if there are other better-qualified candidates who are interested in the job.
The EEOC's position has naturally caused significant concern for many employers with open bidding policies. Fortunately, two recent decisions reinforce the right of employers to hire the best candidate for the job.
In December, the Eleventh Circuit Court of Appeals held 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" and does not require the employer to automatically reassign an employee without competition.
In that case, EEOC v. St. Joseph's Hospital, Inc., the plaintiff was employed as a clinical nurse in the hospital's psychiatric ward. The plaintiff developed spinal stenosis, for which she required the use of a cane. St. Joseph's had significant safety concerns related to the presence of a cane in the psychiatric ward, and eventually determined that it was too dangerous to allow a cane in the ward. The hospital gave the plaintiff 30 days to bid on another position at the hospital. Although there were over 700 positions available, the plaintiff waited three weeks to apply for any jobs at all, and ultimately only applied for three jobs within the 30-day time period. She was not hired for any of the positions and eventually was terminated.
Following a jury trial, the EEOC argued on appeal that the ADA requires reassignment without competing against non-disabled employees. The Eleventh Circuit ruled against the EEOC. The Court outlined a multi-part test to determine whether the requested accommodation—automatic reassignment to an open position without competing against non-disabled employees—was reasonable:
- The plaintiff must show that his or her requested accommodation is reasonable on its face, i.e., "ordinarily or in the run of cases."
- If the plaintiff does so, the burden shifts to the employer to show that granting the accommodation would impose an undue hardship under the facts of the particular case.
- If the plaintiff does not carry his or her burden at step one, the plaintiff can still prevail, provided he or she can show that there are special circumstances in that particular case making the accommodation reasonable.
The Eleventh Circuit affirmatively found that "[r]equiring reassignment in violation of an employer's best-qualified hiring or transfer policy is not reasonable 'in the run of cases.'" Consequently, the Court found that where the employer has a merits-based selection policy, the ADA only requires the employer to allow a disabled person to compete equally for a vacant position. And in that case, given that the plaintiff had not attempted to show any special circumstances that warranted requiring the hospital to ignore its best-qualified hiring policy, the Court found that the hospital had not violated the ADA by requiring the plaintiff to bid for an open position.
In March, in EEOC v. Methodist Hospitals of Dallas, the Northern District of Texas was faced with an almost identical fact pattern. There, the Court noted that the Fifth Circuit had not directly addressed the issue, but found that "the weight of Fifth Circuit authority holds that the ADA does not entitle a disabled employee to preferential treatment." In making its holding, the Court adopted the reasoning in the Eleventh Circuit's St. Joseph's Hospital decision in full, and held that Methodist's policy of requiring disabled employees to compete with non-disabled applicants in order to hire the best candidate does not violate the ADA.
Taken together, these two recent decisions should provide comfort to employers with open bidding policies. However, employers should be aware that despite these set-backs, the EEOC is not likely to agree that open bidding policies comport with the ADA. The federal courts have not yet agreed uniformly on this issue, and the EEOC consistently cites to cases out of the Seventh Circuit, the Tenth Circuit, and the D.C. Circuit to support its position. Although these cases have been distinguished by the Eleventh Circuit and the Northern District of Texas, employers in those districts should be especially alert when dealing with reassignment requests from disabled employees.
In addition, whenever presented with a request for accommodation, employers should not jump to any conclusions or make any rash decisions. It is always a best practice to refer all disability claims to HR, go through the interactive process, stay in communication with the disabled employee, and, above all, document, document, document.
Fortunately, these decisions strengthen employers' ability to maintain merits-based selection policies, and will help companies continue to hire the right employee into the right position.
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