Monday, September 10, 2012

Seventh Circuit Rewrites the ADA

Two very troubling ADA decisions from the normally solid Seventh Circuit Court of Appeals here in Chicago:

Earlier this summer, the Court reversed a lower court's grant of summary judgment to an employer in a case involving an employee with sleep apnea. The employee's medical problems, which included chronic sleeplessness, resulted in him getting a doctor's recommendation for day shift only work.

The employer had a few dayshift only positions and assigned the employee to one of them, but eventually the position was eliminated and the employee entered the normal shift rotation of day, evening, and overtime shifts. The employee attempted to work these new hours, but ultimately found that fatigue and pain (he also suffered from fibromyalgia) made it impossible to continue. Again, his physician placed him on a medical restriction to work only day shifts. Because it had no positions available that did not require either overtime or flex time (i.e. working outside the shift timeframe), the company laid the employee off. It refused to put him back into other vacant positions, asserting that overtime and flex time were essential job functions of any available position. When a position came open some seven months later that had straight day shifts, the employee bid on the position and the company brought him back to work.

Proving that no good deed goes unpunished, the employee then promptly sued the employer for disability discrimination because it did not reasonably accommodate him by giving him a dayshift only position. The lower court found for the employer.  The Seventh Circuit reversed, and in doing so engaged in some disturbing analysis with respect to the employer's definition of the essential elements of the positions. Although the employer identified working overtime as a requirement for all of its positions, the court found that this was not necessarily so, based, apparently, on the fact that some job descriptions explicitly listed overtime as a requirement, while others did not. The court also questioned whether overtime was an essential qualification if it was rarely required for a few positions.

I find this result problematic-employers have the right to set their own job requirements, and as long as those requirements are applied consistently, the court should not be challenging them. There was no evidence that overtime was not an essential element of all the positions at the facility-the fact that it was only rarely required for some positions does not make it any less essential when the employer needs people to stay at work passed their normal shift time.  The Court noted that employers have the authority to determine which job functions are essential, and that courts should not second-guess those decisions, and then went on to second-guess this employer's decision.  Moreover, the employer's failure to include overtime as an essential element for every single job description should not preclude the employer from proving that, in fact, all positions were required to be overtime capable as the need arose.  The decision effectively means that employers need to break down and fine tune their job descriptions to include every single possible element, something that is typically difficult and impractical. Alternatively, employers could completely eliminate job descriptions, and rely on practice to establish essential elements. I assume that would solve at least part of the problem that surfaced here.

Employers should also be aware of a new decision effectively mandating reassignment of  disabled employees into a vacant position in lieu of more qualified (but not necessarily more senior) applicants.

In a case involving United Airlines, the Court reversed an earlier line of precedents at the urging of the EEOC. United Airlines had a policy that looked to place disabled employees into vacant positions when they were the best qualified applicant, but the Court’s language leaves no doubt that such a competitive type policy will not stand. “…[A]ccommodation through appointment to a vacant position is reasonable. Absent a showing of undue hardship, an employer must implement such a reassignment policy.”

In setting this requirement, the Seventh Circuit directs lower courts (and, therefore, employers) to first determine whether mandatorily reassigning a disabled employee to a vacant position for which they are minimally qualified is ordinarily, “in the run of cases”, a reasonable accommodation. In other words, given the job requirements and qualifications of the employee, does it appear logical that the disabled employee could claim assignment to the vacant position as a reasonable accommodation? If so, then the employer can defend against the mandatory reassignment requirement only by showing that there are fact specific considerations particular to its employment circumstances that make a mandatory reassignment an undue hardship.

Courts have long claimed that employment discrimination statutes are not designed to give a preference for employees that are in the protected class, but merely “level the playing field” for those employees so that their protected status is no longer a factor. But this decision, as the Court clearly notes, establishes a definitive preference for disabled employees over their coworkers. Employers are on notice that they must consider vacant positions for reassignment, even in circumstances where the disabled employee is not the most qualified for the position.

One of the reactions to the decision that I would expect to see is that employers will start defining the requirements of their positions as definitely as possible, so that they are not required to put disabled employees with minimal qualifications into key positions that happen to vacant at the time the request for accommodation is made. Short of that, it will become imperative for human resources departments that manage accommodation requests to become acutely aware of every single job vacancy within their organization. Good luck with that.

My thanks to my associate, Liz Winiarski, for her assistance in writing this post.

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