In EEOC v. St. Joseph’s Hospital, the Eleventh Circuit recently held that the reasonable accommodation standard under the ADA “only requires an employer allow a disabled person to compete equally with the rest of the world for a vacant position” as a reasonable accommodation, and employers are not required to reassign a disabled employee into a vacant position ahead of more qualified, non-disabled employees.

St. Joseph’s Hospital (the “Hospital”) advised Leokadia Bryk (“Bryk”), a disabled nurse, that she could no longer use a cane in the psychiatric ward where she worked because it posed a safety risk.  The Hospital offered Bryk a 30-day application period during which she could apply for other positions internally.  Although the Hospital told Bryk “it wasn’t their job to get a job for [her],” the Hospital made the Manager of Team Resources available to answer questions and guide Bryk through the process.

During the 30-day application period, Bryk applied for seven out of 700 available positions but failed to obtain a new position.  The Hospital then terminated her employment.  The EEOC brought suit and argued that the mere opportunity to compete for a vacant position does not meet the reasonable accommodation obligation under the ADA and, thus, Bryk should have been granted a reassignment without having to compete with other applicants.

The Eleventh Circuit rejected the EEOC’s argument, holding “that the ADA does not require reassignment without competition for, or preferential treatment of, the disabled.”  In support, the Court cited the ADA’s definition of “reasonable accommodation,” which states the term may include reassignment. 42 U.S.C. § 12112(9)(B).  Thus, reassignment to a vacant position can be a reasonable accommodation in some circumstances, but not in others.

The Eleventh Circuit also found that employers need not abandon existing disability-neutral policies, such as the “best-qualified applicant policy” followed by the Hospital in Bryk’s case, to give preferential treatment to disabled employees.  The Court noted, however, that “a plaintiff can show that special circumstances warrant a finding that reassignment [in violation of an employer’s best-qualified hiring policy] is a required accommodation under the particular facts of her case.”  But Bryk did not do so here.

The Eleventh Circuit’s opinion reinforces the Fifth and Eighth Circuits’ similar views that the ADA is not an affirmative action statute in favor of disabled workers, and employers need not abandon neutral policies to give disabled persons priority when evaluating candidates for an open position.

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Photo of Nicole Eichberger Nicole Eichberger

Nicole A. Eichberger is a partner in the Labor and Employment Law Department and head of the New Orleans office. She is a member of the Class & Collective Actions and Wage and Hour Groups. Nici is an experienced trial lawyer and represents…

Nicole A. Eichberger is a partner in the Labor and Employment Law Department and head of the New Orleans office. She is a member of the Class & Collective Actions and Wage and Hour Groups. Nici is an experienced trial lawyer and represents clients in all types of employment-related matters, from single-plaintiff and complex employment to large, complex class and collective actions alleging discrimination, non-compete violations, and wage and hour disputes.

Nici has significant experience assisting clients in the defense of numerous class and collective actions. She frequently counsels employers, fiduciaries, and trustees on employment, wage and hour and benefit issues.

In addition to her litigation practice, Nici assists in conducting workplace investigations and audits related to discrimination, managerial training, non-competes and employee classification. She is adept to counseling clients on a wide array of issues including reviewing and drafting employee handbooks, wage and hour issues, employee leave and training policies.

She is a member of the Firm’s eDiscovery Group and advises clients on eDiscovery matters, including day-to-day preservation, investigations and litigation strategies.

Nici recently completed a three-year term was on the ABA’s Standing Committee on Pro Bono & Public Service and serves as the Pro Bono Co-Coordinator for Proskauer’s New Orleans office. She is a prolific writer, frequently contributing to Proskauer’s Law and the Workplace Blog and a sought-after speaker on collective/class action topics.