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 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 the 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.