CHICAGO – A decision by the U.S. Eleventh Circuit Court of Appeals in Atlanta, Ga., says employers are not required by the Americans with Disabilities Act to surrender the search for the best qualified candidate for a job when considering a disability accommodation job transfer request from a disabled employee.
And since the result differs from a ruling on a similar question in the Chicago-based U.S. Seventh Circuit Court of Appeals, the question may ultimately be decided by the U.S. Supreme Court.
The Eleventh Circuit decision came in the case U.S. Equal Employment Opportunity Commission (EEOC) v. St. Joseph’s Hospital, Inc., in which a disabled nurse looked to be transferred, under an ADA accommodation, into a new position after a disability left her needing to use a cane, which
proved to be a safety issue
in the psychiatric ward in which she worked.
While the nurse was allowed to apply for other positions at the hospital, she was required to go through the hiring process and compete against other applicants for the job. When she failed to secure one of the positions she had applied for, she was terminated by the hospital.
The EEOC filed suit asking the court to determine whether under the ADA, the hospital would be required under the ADA to reassign her to another position without subjecting her to competition for those jobs from other applicants.
The Eleventh Circuit ruled the ADA does not require job reassignment without allowing an employer to hire the best qualified or giving special treatment to an individual that has a disability.
“Employers that are situated in the Eleventh Circuit would not, at least under federal law, have to deviate from the best-qualified candidate policy," Bryan T. Symes, attorney at Ruder Ware, told the Cook County Record. “In other words, disabled individuals are not going to be given preferential treatment. They would be on equal footing with all other candidates for the position.”
The Eleventh Circuit includes the states of Georgia, Alabama and Florida.
The Eleventh Circuit decision strays away from the ruling in the Seventh Circuit's ruling in EEOC v. United Airlines, Inc., in which the court found reasonable accommodation may include hiring a disabled person while forgoing a typical hiring process.
The Seventh Circuit decision provides more restriction to employers located in Wisconsin, Illinois, and Indiana under the ADA, also where Symes practices.
“I have to tell my clients here that they cannot rule out reassignment to a vacant position and deviate from their best candidate policy as a form of reasonable accommodation according to the Seventh Circuit," Symes said.
The differences in rulings by the courts boil down to different interpretations of the ADA by judges of differing backgrounds and political stances.
“There’s no question that across the country there are more conservative and more liberal-leaning judges that are on the bench and this is precisely why we have the Supreme Court,” said Symes.
As to how the Supreme Court would rule on this issue today based on an even partisan split on the court, Symes said: “It’s hard to say. It would be difficult to predict.”
But after President-elect Donald Trump becomes president Jan. 20, and appoints what is expected to be a conservative justice to the court, Symes said it could be likely that “the Eleventh Circuit position would prevail.” But, he said, “It’s really had to say.”