DEFENDING FORT LAUDERDALE EMPLOYERS: THE AMERICANS WITH DISABILITY ACT DOES NOT MANDATE REASSIGNMENT WITHOUT COMPETITION

The Americans With Disabilities Act (ADA) prohibits discrimination by an employer “against a qualified individual on the basis of disability” in any of the “terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). The United States Court of Appeal for the Eleventh Circuit in Holly v. Clairson Industries, L.L.C., 492 F.3d 1247 (11th Cir. 2007), explained that to establish a prima facie case under the ADA requires a plaintiff to show that, at the time of the adverse employment action, he or she had a disability, he or she was a qualified individual, and he or she was subjected to unlawful discrimination because of his or her disability. Peter Mavrick is a Fort Lauderdale employment lawyer. The Mavrick Law Firm also represents clients in business litigation, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, and other legal disputes in federal and state courts and in arbitration.

In 2008, Congress made significant changes to the ADA by enacting the ADA Amendments Act of 2008, Pub.L.No. 110-325,122 Stat. 3553. These amendments indicate that an extensive analysis is not required to determine whether an individual’s impairment is a disability under the ADA. The ADA, at 42 U.S.C. § 12102(1), defines “disability” as “a physical or mental impairment that substantially limits one or more major life activities of an individual; “a record of such an impairment,” or “being regarded as having such an impairment.” Major life activities include, but are not limited to, “sleeping, walking, standing, lifting, … [and] bending.”

Under the ADA, a “qualified individual” is “an individual who, with or without a reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). A great deal of employment litigation under the ADA is over the term “reasonable accommodation,” including whether “reassignment” constitutes a reasonable accommodation. When an employee seeks reassignment as a reasonable accommodation for a disability, the relevant question when deciding whether he or she is a qualified individual is not whether the employee is qualified for his or her current position, but whether he or she is qualified for the new job. For example, in Lucas v. W.W. Grainger, Inc., 257 F.3d 1249 (11th Cir. 2001), the federal appellate court examined the essential functions of the new position, not the old one, to determine whether the employee was qualified within the meaning of the ADA. The question sometimes arises in ADA litigation whether the ADA mandates preferential treatment for disabled persons who seek reassignment of their positions. Federal courts refer to such preferential treatment as “noncompetitive reassignment.”

In United States Equal Employment Opportunity Commission v. St. Joseph’s Hospital, Inc., 842 F.3d 1333 (11th Cir. 2016) (St. Joseph’s Hospital), the Eleventh Circuit Court of Appeals held that the ADA does not require reassignment without competition for disabled employees. The appellate court explained that the ADA does not say or imply that reassignment is always reasonable. The ADA offers a non-exhaustive list of accommodations that “may” be reasonable, and one item of that list is “reassignment to a vacant position.” However, the use of the word “may” implies that reassignment will be reasonable in some circumstances but not in others. Before the St. Joseph’s Hospital decision, Eleventh Circuit ADA precedent had held that “employers are only required to provide ‘alternative employment opportunities reasonably available under the employer’s existing policies.’” Terrell v. USAir, 132 F.3d 621 (11th Cir. 1998). St. Joseph’s Hospital explained that “[r]equiring reassignment in violation of an employer’s best-qualified hiring or transfer policy is not reasonable ‘in the run of cases.’ As things generally run, employers operate their businesses for profit, which requires efficiency and good performance. Passing over the best-qualified job applicants in favor of less qualified ones is not a reasonable way to promote efficiency and good performance. In the case of hospitals, which is in this case, the well-being and even the lives of patients can depend on having the best-qualified personnel.” The appellate court concluded that the ADA requires only that the employer allow a disabled employee to compete equally with the rest of the world for the vacant position. Relying on the Eleventh Circuit precedent in Terrell, the appellate court explained that “[t]he intent of the ADA is that an employer needs only to provide meaningful equal employment opportunities,” and the “ADA was never intended to turn nondiscrimination into discrimination against the non-disabled.” Similarly, the Eighth Circuit in Huber v. Wal-Mart Stores, 486 F.3d 480 (8th Cir. 2007), also concluded that the ADA “only requires [the employer] to allow [the disabled employee] to compete for the job, but does not require [the employer] to turn away a superior applicant.”

Peter Mavrick is a Fort Lauderdale employment attorney, and represents clients in Miami, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.