Americans with Disabilities Act Held to Allow “Competitive” Reassignment

The Eleventh Circuit handed the EEOC another recent defeat in U.S. Equal Employment Opportunity Commission v. St. Joseph’s Hospital, Inc., No. 15-14551, 2016 WL 7131479 (11th Cir. Dec. 7, 2016). The case involved cross-appeals after a jury found that the defendant hospital had acted in good faith despite its failure to accommodate a disabled nurse under the Americans with Disabilities Act. Although the court upheld some of the jury’s findings against the hospital, it rejected the EEOC’s argument that the ADA requires noncompetitive reassignment for qualified employees who cannot perform the essential functions of their jobs because of a disability.

The EEOC had sued the hospital on behalf of a nurse who walked with a cane and worked in the hospital’s psychiatric unit. When the hospital determined that the cane posed a safety risk because patients might try to use it as a weapon, the hospital allowed the nurse to compete with other internal job applicants for reassignment. The nurse applied (and was found qualified) for several positions, but the hospital ultimately terminated her employment—partly because she was not the best applicant for one of the open positions.

In keeping with its subregulatory enforcement guidance on reasonable accommodations, the EEOC argued that the ADA requires more than the “mere opportunity to compete for a job.” But the Eleventh Circuit disagreed: “[T]he ADA does not require reassignment without competition for, or preferential treatment of, the disabled.” 2016 WL 7131479, at *8. Because “[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 held that “the ADA does not automatically mandate reassignment without competition.” Id. at *9, *10.

The Eleventh Circuit thus joined the Eighth Circuit in an (arguable) circuit split on this issue. The latter held in Huber v. Wal-Mart Stores, Inc. that “the ADA is not an affirmative action statute and does not require an employer to reassign a qualified disabled employee to a vacant position when such a reassignment would violate a legitimate nondiscriminatory policy of the employer to hire the most qualified candidate.” 486 F.3d 480, 483 (8th Cir. 2007) (footnote omitted). The Eleventh Circuit distinguished opinions that that EEOC had cited from the Seventh, Tenth, and D.C. circuits, while noting “that just because reassignment to a vacant position in violation of an employer’s best-qualified hiring policy is not always required as a reasonable accommodation does not mean it never will be.” 2016 WL 7131479, at *10 n.7.

Readers facing similar questions in other cases may find interesting the pro-hospital amicus brief filed by the Equal Employment Advisory Council.

The court also addressed a procedural issue related to the EEOC’s post-trial motion to alter or amend the district court’s original judgment under Federal Rule of Civil Procedure 59(e). After proposing jury instructions and “proceed[ing] in this case as if a good faith finding would absolve [the hospital] of all ADA liability,” 2016 WL 7131479, at *11, the EEOC had used Rule 59(e) to present new arguments to the district court about the availability of equitable remedies, including reinstatement. The Eleventh Circuit dodged these remedial questions by holding that “motions under Rule 59(e) may not be used to raise new legal theories or arguments, much less ones that contradict verdict forms or instructions that the moving party proposed to the district court.” Id. at *12.

Posted by Lee Peifer.

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