Disability Accommodation & Job Competition


By: Michael M. Hill

We previously have written about the EEOC’s guidance on the Americans with Disabilities Act (“ADA”) and pointed out that, in some cases, reassigning a disabled employee to another position (such as a light-duty position) may be a reasonable accommodation of the disability. The EEOC’s position has been and still is that, if another position is available and the employee with a disability meets the basic qualifications, then that employee must be given the position without having to compete for it (unless giving it to the disabled employee would pose an undue hardship on the employer).

This rule does not apply in the Eleventh Circuit, which covers Georgia, Florida, and Alabama. In EEOC v. St. Joseph’s Hospital, Inc., the Eleventh Circuit Court of Appeals held that an employer still may require the disabled employee to compete equally with others for an open position, and the employer generally is free to select the best qualified candidate.

The employee in St. Joseph’s was a nurse in the psychiatric ward who, after developing back problems and undergoing a hip replacement, started walking with a cane.  The hospital’s management feared that her cane may be used as a weapon by the psychiatric patients and gave her thirty days to apply for another job in the hospital.  She applied for seven other hospital positions but was not hired for any of them.

The rub, for the EEOC, was that she had to compete with other internal applicants for the positions she desired. The EEOC argued that the ADA’s duty to provide a reasonable accommodation required the hospital to give her a position for which she was qualified, even if another applicant was more qualified.

The Eleventh Circuit disagreed and held that the duty to accommodate an employee’s disability does not require “preferential treatment.” The Court pointed out that the ADA is not an affirmative action statute and “was never intended to turn nondiscrimination into discrimination against the non-disabled.”  While some cases may present “special circumstances” that would warrant an exception to the employer’s “best-qualified applicant” policy, such circumstances were not present in this case.

This case is an important reminder that, while federal laws like the ADA apply throughout the country, individual federal circuits may differ in how they interpret an employer’s obligations under the law, which even may differ from the EEOC’s position. Employers would do well to consult counsel in developing policies that comply with the law of their particular circuit.

For any questions you may have, please contact Michael Hill at [email protected].