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The ADA Provides Equality, Not Preferences

December 1, 2000
Related Topics: Disabilities, Featured Article
The Americans with Disabilities Act isa truly unique law. Unlike other anti-discrimination statutes, it requiresemployers to provide reasonable accommodations so disabled employees can performthe essential functions of their jobs. Members of other protected groups are notguaranteed this additional employer assistance. In fact, it would be unlawfulfor an employer to provide a job accommodation to a non-disabled male employee,for example, and deny a non-disabled, similarly situated female employee thatidentical accommodation.

    The employer’s reasonableaccommodation requirement is the ADA’s alpha and omega. Most courts hold thatan accommodated (or unaccommodated) disabled employee is not entitled to aspecial job assignment preference over a non-disabled employee. This is trueeven if an available job would be particularly well-suited to the disabledemployee’s existing limitations and restrictions. Easier jobs or jobs withlighter duties and responsibilities do not have to be awarded to disabledemployees in preference to their non-disabled coworkers.

    Susan Hoskins was a deputy sheriff inthe Oakland, Michigan County Sheriff’s Department. In August 1996, shesuffered severe non-work related injuries when a horse fell on her. Susan washospitalized for two and a half weeks followed by an eighteen-month recuperationperiod. Her doctors told her to avoid (1) shooting a shotgun, (2) getting intoany situation where she could get hit in the chest and, in particular, (3)restraining inmates. They recommended “a sedentary position [with] light workduties” and offered the opinion that she would never “be able to resume fullduty as a deputy.”

    The County had no light duty positionsavailable. It offered Susan jobs as a dispatcher or a booking clerk. Susan hadbeen a dispatcher her first three years with the Department. However, both jobswere demotions and paid much less than the deputy’s job. Susan rejected thosejobs. She was then terminated. Susan (and the County) were taking a calculatedlegal gamble. An employer can only reassign a disabled employee to a lowergraded position if that employee cannot be accommodated in an equivalentposition that is vacant within a reasonable period of time.

The court held that the ADA does not give disabled preferences in job assignments.

    After she filed her ADA lawsuit, Susanpointed to an intake position at the County’s new commerce substation. Thisjob required only answering phones and taking walk-in reports from the generalpublic rather than restraining felons. However, that new job began fourteenmonths after Susan’s termination. EEOC regulations do not requireemployers to offer positions that are not available when possible accommodationsare being discussed and are not anticipated to become available in the nearfuture. That being said, this new position’s salary was the same as adeputy’s pay and one wonders why Susan did not offer to drop her ADA suit inexchange for that intake job.

    Susan’s next argument was that hercoworkers could assist her if any inmates needed restraining. Restraininginmates rarely happened. In two decades as a deputy, Susan had only one physicalaltercation with an inmate. Nevertheless, the Court held the “potential” forsuch physical confrontations “exists on a daily basis” and was, therefore,an essential function of the deputy’s job. The Court rejected Susan’s“coworker assistance” accommodation because the ADA “does not requireemployers to accommodate individuals by shifting an essential job function ontoothers.”

    Susan’s final accommodation argumentwas her strongest. She wanted to be assigned permanently to a control boothoperator’s job at the county jail. These operators sat in a locked booth andwere primarily responsible for operating the control panel so the officersworking inside the jail could enter and leave cell blocks. This was much easierthan working inside the jail in the cell blocks with the prisoners.Traditionally, the country rotated this operator’s job so every officer wouldhave a break from cell block duty. Assigning this temporary position to Susan ona permanent basis would eliminate this rotation among the officers at the jail.

    The Sixth Circuit, addressing aquestion of first impression, held that the county was not required to offerSusan this operator’s job even though it involved no inmate contact and Susanwould have been able to perform it within her doctor’s work restrictions.Specifically, the Court held that an accommodation that required turning arotating or relief position into a permanent position for a disabled employeewould not be reasonable, Hoskins v. Oakland County Sheriff’s Department,2000 U.S. App. LEXIS 18276 (6th Cir., July 31, 2000).

    This issue would probably not arisewith relief positions where employees are regularly assigned to fill in forother employees who are absent on leave or vacation. Those are temporaryassignments within a permanent relief job. A relief position requires someonewho can successfully perform a wide variety of jobs in the plant. Impairmentsthat preclude a disabled employee from performing one or more of those fill-injobs would place the relief person’s job off-limits to a disabled employeeseeking a reasonable accommodation, e.g., McDonald v. Kansas Department ofCorrections, 880 F. Supp. 1416 (D. Kan. 1995).

    A rotating position, such as thecontrol booth operator’s job in the Hoskins case, is a perfect example.This position was rotated because it was much easier “in fairness toeverybody.” It was a temporary position for each officer who took it.Assigning it to Susan would convert it into a permanent position that no longerrotated. The ADA does not require employers to create new jobs; they must onlyconsider assignments to otherwise-existing vacant jobs. The Sixth Circuit agreedwith the County that assigning Susan to this rotating job on a permanent basiswas creating a new one-person permanent position in place of a multi-persontemporary position, see, also, Hendricks-Robinson v. Excel Corp., 154F.3d 685 (7th Cir. 1998) (ADA does not require an employer to convert temporarypositions it has set aside for injured workers into permanent positions fordisabled employees) and Hill v. Harper, 6 F. Supp. 2d 540 (E.D. Va. 1998)(permanent assignment to one duty assignment is rotated among the workforce).

    Susan Hoskins wanted a preference. Shewas disabled and wanted a job she could still perform in preference to otherworkers. That job would no longer be rotated and made available to everybodytemporarily. Despite what many people think, the Sixth Circuit held that the ADAdoes not give disabled workers preferences in job assignments over non-disabledworkers. It merely levels the workforce playing field.

Reprinted with permission from Employment Law Alert, a publication of Nixon Peabody LLP. Copyright© 2000 Nixon Peabody LLP. Allrights reserved. The information contained in this article is intended toprovide useful information on the topic covered, but should not be construed aslegal advice or a legal opinion.

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