In a recent decision (U.S. Equal Employment Opportunity Commission v. St. Joseph’s Hospital) the 11th Circuit Court of Appeals rejected the EEOC’s long-standing position that as long as the disabled employee is qualified for the position the employer must place the employee in the vacant position and cannot require the employee to compete for it.
The plaintiff was a nurse who suffered from a medical condition which required her to use a cane to help her walk. The nurse worked in the hospital’s psychiatric ward and the hospital became concerned that the patients could use the cane as a weapon, which caused the hospital to question her placement in that department. To address those safety concerns, the hospital gave the nurse 30-days to apply for other positions for which she was qualified and waived certain transfer requirements (like being in the current position for a certain amount of time and having no final written warnings on record) for this nurse. The nurse was, however, required to compete with other candidates for these positions in accordance with the hospital’s best-qualified hiring or transfer policy .
Ultimately, nurse was qualified for three of seven positions for which she applied, but the hospital hired other, better-qualified applicants. As a result, since the nurse did not secure a new position within the 30 days, the nurse was terminated. The nurse later filed a lawsuit claiming that she was discriminated against because of her disability and that the employer refused to provide her with a reasonable accommodation for her disability.
While the Court acknowledged that reassignment to a vacant position may be a reasonable accommodation for a disability, the Court found that requiring reassignment in violation of an employer’s established best-qualified hiring or transfer policy is not reasonable.
In explaining its decision, the court stated, “Passing over the best-qualified applicants in favor of less-qualified ones is not a reasonable way to promote efficient or good performance.” The court further noted that “‘the ADA was never intended to turn nondiscrimination into discrimination’ against the non-disabled.” In short, the ADA does not require an employer to turn away a superior applicant in favor of a disabled employee.
Take Home for Employers
Under circumstances where an employer has hiring or transfer policies in place, (like a superiority system or a best-qualified applicant policy), the ADA does not require a reassignment that violates those established company policies. Instead, in those circumstances, the ADA only requires that an employer allow the disabled employee to compete equally for a vacant position. This may mean, like here, that the employer may be required to waive some other hiring policies (like a time in position policy or disciplinary action policy) as a reasonable accommodation to enable the disabled employee to compete equally for the position.
NOTE: This decision is a split from similar decisions in other jurisdictions; therefore, for employers who are not in the 11th Circuit, they may still need to consider placing the disabled individual in the open position even if he or she is not the best qualified. It is important for employers to handle each reasonable accommodation situation on a case-by-case basis and engage in good faith in the interactive process with each disabled employee.