ADA in the News December 7, 2020

Jury's verdict against Walmart in EEOC case on behalf of disabled cart attendant upheld
Although the EEOC's case against Walmart on behalf of a profoundly disabled cart attendant presented close questions, particularly about whether he could perform the essential functions of his job with reasonable accommodations and whether a full-time job coach was a reasonable accommodation, a federal court in Wisconsin found the questions were within the jury's purview and its award to the employee (it awarded over $5M for compensatory and punitive damages, which the court later capped at $300K, but added back pay, front pay, and other relief) was adequately supported by the evidence. Accordingly, the court denied Walmart's motions for judgment as a matter of law, a new trial, and a reduction in compensatory damages. (EEOC v Wal-Mart Stores, Inc, WDWis, November 25, 2020, Peterson, J.)

Labor Law: Job reassignment remains the accommodation of last resort under the ADA, court rules

The 4th U.S. Circuit Court of Appeals last month issued a precedent-setting decision in favor of an employer in a case alleging violation of the Americans with Disabilities Act and reassignment as a reasonable accommodation.

The ruling from the Richmond-based appeals court is a must-read for employers seeking a road map on how to comply with the ADA.

Under the ADA, a qualified disabled employee must be provided reasonable accommodations to perform the essential functions of the position unless doing so would create an undue hardship.

In the case against the home improvement retailer Lowe’s, a former company director sued the chain alleging that it failed to provide reasonable accommodations to him following knee surgery. He also alleged a violation of the Age Discrimination in Employment Act, which was also dismissed.

North Carolina-based Lowe’s prevailed because it relied upon existing and consistently applied policies by engaging the employee throughout the process, being flexible and open-minded, providing interim accommodations and then following its own best practices for hiring in denying him a reassignment.

The major takeaways from the case include: determining an essential job function job; establishing reasonable accommodations; determining whether the employee is automatically entitled to a reassignment to a vacant open position as a reasonable accommodation; and having good leadership.

Essential functions: Determining essential job functions is important because the employer does not have to remove an essential job function as an accommodation.

The appeals court stated it is the company’s business judgment that determines the employee’s essential job functions. While job descriptions are relevant to this question, the court also relied upon testimony of senior officials and those familiar with the daily requirements of the job.

The court concluded that standing or walking in excess of four hours a day, traveling to supervised stores and working in excess of eight hours each day were essential job functions of the director-level position.

Immediately following his surgery, Lowe’s provided temporary accommodations to include reducing the employee’s hours to 40 weekly as well as providing him another employee to drive him to various stores. In addition, it offered him a scooter that he flat-out rejected.

Reasonable accommodations: When the restrictions became permanent, the court analyzed whether Lowe’s provided reasonable accommodations that enabled the employee to perform the essential job functions.

The ADA defines “reasonable accommodation” as one that “may include job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies ... and other similar accommodations.”

The employee argued that Lowe’s was required to make permanent the arrangement to have another employee drive him to his stores. The court correctly stated the ADA does not mandate accommodations that require other employees to work harder or longer.

“In the end, Lowe’s made reasonable, sensitive attempts to accommodate an indisputably valued employee in his present position,” the appeals court wrote. “And yet, between the fixity of [the employee’s] mobility-related restrictions and his refusal to accept the motorized scooter accommodation, Lowe’s determination that he could no longer remain in the highly demanding [director] position was reasonable.”

Reassignment: Once it was determined the employee could not be accommodated in his current job, he sought a transfer to one of two vacant director-level positions as a reasonable accommodation.

On this issue, the court noted, “Claims for reassignment under the ADA” amount to a “last resort.”

In prior cases in other circuit courts, reassignment had become akin to the disabled employee receiving a preference in hiring above more qualified candidates as an accommodation.

The appeals court flatly rejected this approach, including “preferential accommodations.”

“Reassignment is unique in its potential to disrupt the settled expectations of other employees, so much so that no employer is required to reassign where reassignment would ‘bump’ another employee from his position, or block reasonable, long-time workplace expectations,” the court said.

Credit to Lowe’s leadership: The biggest takeaway for employers should be the tireless efforts by Lowe’s to create opportunities for this employee.

The court acknowledged how Lowe’s senior leadership directly assisted the employee with job transition, recognizing the senior-level employees whose time “was valuable to Lowe’s but they rightly devoted a non-trivial portion of it to help [the employee] identify and approach new opportunities at the company.”

This proactive approach provided the employee with equal opportunities, the court held, including offering him management positions which he rejected because of a reduction in compensation.

Fourth Circuit Ruling on ADA Reassignment Has Major Implications for Employers

In the U.S. Supreme Court’s 2002 Barnett decision, the court held that qualified disabled employees are entitled to reassignment to an existing vacant position under the Americans with Disabilities Act if they become unable to perform the essential functions of their current job, with or without reasonable accommodation. Since Barnett, the Equal Employment Opportunity Commission and employers have taken different views on the obligation to reassign disabled employees. The EEOC takes the position that if the disabled employee is qualified for the alternative job, they must be given the position, regardless of whether there are better qualified candidates who are not disabled.

Last month, the Fourth Circuit Court of Appeals (which includes North Carolina, South Carolina, and Virginia) agreed with an employer’s assertion that Barnett allows it to maintain a corporate succession system that selects the best qualified applicant for the position, even if that decision results in a disabled employee being denied reassignment. In Elledge v. Lowe’s Home Centers LLC, the plaintiff was a market director who had oversight responsibilities over a number of stores. The job required long hours and extensive walking and driving. He had a series of knee surgeries that resulted in his physician imposing permanent restrictions on his driving, walking, and working time.

Lowe’s attempted a number of accommodations, some of which were ignored by the plaintiff. The company eventually concluded that he was unable to perform the essential functions of his position even with available accommodations, and it offered him reassignment to a lower paying job. The plaintiff rejected this offer, instead requesting that he be reassigned to one of two alternative director-level positions. Lowe’s declined this request, explaining that under its succession planning and best hiring policies, the plaintiff was not the highest qualified applicant for those positions. He sued, claiming first that he was able to perform the essential functions of his prior position, and as an alternative, that he should have been placed into one of the two open director positions under Barnett.

The district court granted summary judgment to Lowe’s, and on appeal, the Fourth Circuit panel affirmed this decision. First, the court agreed the employer had demonstrated that the plaintiff was unable to perform the essential functions of his previous job due to the permanent medical restrictions. Walking, driving, and working extended hours were all essential functions for the position. The Fourth Circuit rejected the plaintiff’s claim that despite the restrictions, he was still able to perform these functions, noting that in order to do so, he was frequently ignoring his doctor’s instructions or using unapproved accommodations that imposed an undue hardship on the employer.

Next, the Fourth Circuit concluded that Barnett’s reassignment obligation does not require employers to automatically move a disabled employee into a vacant position. If the employer demonstrates that it allowed the employee to apply for the position but then applied policies that make the ultimate hiring decision based on succession needs and the relative qualifications of the applicants, the vacant position can go to someone else. The court said that these policies enjoy the same protections granted by the Supreme Court in Barnett to seniority-based hiring systems. The ADA only requires that the employer provide the disabled employee with an equal opportunity to seek the alternative position, and not to upset otherwise neutral, business-based hiring policies.

This decision has major implications for employers in the Fourth Circuit and beyond. The court rejected the EEOC’s arguments (made in an amicus brief) that Barnett requires automatic reassignment in the absence of a seniority system. The Fourth Circuit’s conclusions mean that employers only need to give the disabled employee a fair opportunity to seek the alternative position, and employers can still select the most qualified applicant.

Employers should note that the decision in Elledge rested on Lowe’s demonstration of clear, written policies explaining the business criteria for selecting applicants. In the absence of such policies, the employer may have a more difficult time proving a bona fide selection system. Regardless, unless the Supreme Court decides to revisit this issue, Fourth Circuit employers now have added discretion with regard to their obligation to provide assignments as an ADA reasonable accommodation.

Fourth Circuit Ruling Favors Employers in High Profile ADA Case

On November 18, 2020, the United States Court of Appeals for the Fourth Circuit upheld a decision that retailer Lowe’s Home Centers LLC (“Lowe’s”) did not violate the Americans with Disabilities Act (ADA) when it removed a disabled store manager from his position and declined to reassign him to a similarly situated vacant managerial position.

The Plaintiff, Charles Elledge, was a long time employee of Lowe’s and had worked in a demanding position managing multiple store locations and working long hours. Elledge’s job duties included driving himself to the store locations he oversaw and walking throughout the stores during his shifts. After several knee surgeries, Elledge’s doctor ordered him to restrict his walking to no more than four hours per day, and his workday to no more than eight hours. Lowe’s complied with these light-work restrictions and attempted to further accommodate Elledge by offering him a motorized scooter to help him move around his assigned stores. Elledge declined to use the motorized scooter and did not consistently adhere to his doctor’s restrictions. Instead, he unilaterally arranged for a colleague to drive him around during his shifts and flouted his light-work restrictions by walking or working more hours than his doctor indicated he should.

Once Elledge’s work restrictions became permanent, Lowe’s determined that he could not perform the essential functions of his positon with or without reasonable accommodation, but offered to reassign him to a less physically demanding managerial position, but which offered less pay. Elledge refused the lower paying positions Lowe’s offered him and instead applied for two vacant director-level positions with pay levels similar to his current role. However, Lowe’s filled those positions with two candidates whom the company deemed more qualified than Elledge pursuant to its succession planning and best-qualified hiring policies. Ultimately, Lowe’s offered Elledge a severance package and early retirement, which he accepted.

Nevertheless, Elledge sued Lowe’s, alleging that it violated the ADA by compelling him to retire despite his ability to perform the essential functions of his job with reasonable accommodations, and refusing to reassign him to a similarly situated vacant managerial position. The U.S. District Court for the Western District of North Carolina granted summary judgment in favor of Lowe’s, finding that Elledge had failed to show he was a “fully qualified” individual under the ADA, who could perform the “essential functions” of the director-level job “with or without reasonable accommodation.” The district court further concluded that Lowe’s was not required to provide Elledge further accommodation, including reassignment to the director-level positions he applied for, after he declined the motorized wheelchair and reassignments that would have resulted in lower pay, both of which the court found were reasonable accommodations. Holding that an employer’s competitive hiring policy “effectively trumps the ADA duty to reassign” a qualified, disabled employee to a vacant comparable position, the district court reasoned that reassignment to the vacant director-level positions Elledge applied for would not have been reasonable under the ADA because the Company had determined, pursuant to its disability-neutral policies, that other candidates for those positions were more qualified.

On appeal, Elledge argued that the accommodations he accepted from Lowe’s, and the transportation assistance he arranged from his co-workers, allowed him to perform the essential functions of his job, and that Lowe’s violated his rights under the ADA by failing to reassign him to another vacant and comparable position. The Equal Employment Opportunity Commission (EEOC) filed an amicus brief in support of Elledge’s position, stating that the district court’s ruling contradicted its guidance on reasonable accommodations and “ignored the plain language of the ADA’s reasonable accommodation and reassignment provisions,” which require that if a current employee would otherwise lose their job due to a disability, they must be reassigned to any open position for which they are qualified.

Affirming the lower court’s judgment, the Fourth Circuit held that given his permanent restrictions, no reasonable accommodation would have allowed him to perform his essential job functions in accordance with Elledge’s doctor’s orders. The Court also noted that Lowe’s acted reasonably in attempting to accommodate Elledge and properly determined, under the circumstances, that Elledge was no longer qualified to perform the essential functions of his job. As a result, the Court held that Lowe’s had met its legal obligations under the ADA by offering Elledge reasonable accommodations.

Notably, the Fourth Circuit rejected Elledge’s contention that Lowe’s violated his rights under the ADA by failing to reassign him to another vacant and comparable position, as “the record demonstrates that Lowe’s extended reasonable accommodations to Elledge acting at every stage to ensure that his disability did not unfairly compromise his equality of opportunity at Lowe’s.” Indeed, as the Court pointed out, the ADA requires that reasonable accommodations be made as necessary to provide disabled employees with the same opportunities as their non-disabled colleagues. It does not require employers to construct preferential accommodations that increase workplace opportunities for their disabled employees. Importantly, the Court ruled that Lowe’s declining to reassign Elledge to the two manager-level positions he applied for was reasonable because it selected more qualified candidates for those positions in accordance with the Company’s merit-based hiring system, which the Court found was disability-neutral on its face and a “reasonable, orderly, and fundamentally fair way of directing employee advancement within the company.”

The Elledge decision reinforces prior decisions holding that while an employer’s burden to accommodate disabled employees is significant, employers need not provide a specific accommodation – including reassignment – if it is not reasonable or if another reasonable accommodation is offered. For example, employers are not required to create new positions, change the essential functions of an existing position or require other employees to perform the disabled employee’s essential job duties. Employees are not entitled to their preferred accommodation if a reasonable alternative is available.

Still, employers should exercise caution when declining to reassign a disabled employee to a vacant position, given the EEOC’s contradictory guidance on this issue and the possibility of a further appeal. In the interim, employers should consider adopting a disability-neutral merit-based hiring policy similar to Lowe’s best-qualified system or updating any existing policies regarding succession planning consistent with the Court’s decision and should strictly adhere to such policies when making hiring decisions to avoid the appearance of discrimination.

Thirty Years Later, Still Fighting Over the ADA

A federal judge for the Southern District of New York recently ruled that the city of New York violated the Americans with Disabilities Act (ADA) by failing to install audible devices at crosswalks. These devices tell blind and visually impaired people when it is safe to cross the streets, but the city had installed them in only 3.4 percent of intersections. The federal district court concluded that the city’s conduct amounted to an illegal denial of services and benefits by a public entity in violation of Title II of the ADA.

The decision comes 30 years after the U.S. Congress enacted the ADA. If the court’s interpretation of the ADA is sound, then New York City, and likely cities across the country, have been allowed to flout the ADA for more than three decades, with courts just now enforcing its requirements.

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