12 Wake Forest L. Rev. Online 1

Introduction

The Americans with Disabilities Act (“ADA” or “the Act”)[1] celebrated its thirtieth anniversary in 2020.[2]  The Act, which was signed into law by President George H.W. Bush, was enacted to eliminate discrimination against individuals with disabilities, especially in critical areas of life like employment.[3]  With the ADA’s passage came the promise of “full and equal access to civic, economic and social life for individuals with disabilities.”[4]  Employment discrimination against persons with disabilities persisted, however, and courts facilitated this discrimination through narrow readings of the statute.[5]  Though the Act was intended to provide broad protections to persons with disabilities,[6] it was limited by courts, and early litigation resulted in pro-defendant opinions.[7]  As a result, Congress passed the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”), which broadened the definition of disability.[8]  Despite its maturity, as well as congressional efforts to create broader protections for persons with disabilities,[9] the ADA continues to create disagreement among courts regarding how far the protections of the Act stretch.[10]  Today, most of this disagreement centers on the ADA’s reasonable accommodation clause—a key provision of the Act.[11]

The Fourth Circuit is no exception as it too has contributed to this disagreement.  In Elledge v. Lowe’s Home Centers, LLC,[12] the court was asked to decide the scope of the reasonable accommodation clause.  The court addressed whether the ADA requires an employer to automatically reassign a disabled employee to a vacant position when that reassignment would conflict with the employer’s nondiscriminatory best-qualified hiring policy.[13]  Essentially, the court had to decide if the ADA requires an employer to fill a job vacancy with a less-qualified employee who has a disability even though the employer has a policy of hiring the best-qualified candidate for the position.[14]  Ultimately, the Fourth Circuit decided that the ADA does not require mandatory reassignment when an employer utilizes a best-qualified hiring policy.[15]

Mandatory reassignment requires courts to delve deep into the ADA’s statutory text and legislative history while also considering complex policy implications,[16] demonstrating why it is one of the most litigated accommodations within the ADA.[17]  Following the Elledge decision, there is now a split between five federal circuit courts, with the Fourth, Eighth, and Eleventh Circuits finding that the ADA does not require mandatory reassignment when an employer utilizes a most-qualified hiring policy to fill vacant positions, and the Seventh and Tenth Circuits finding that it does.[18]  Though the Fourth Circuit aligned with two other circuit courts, its holding in Elledge went too far, essentially precluding employees with disabilities from ever being reassigned to a vacant position when an employer utilizes a best-qualified hiring policy.[19] 

This Comment explores the complexity of the ADA’s reasonable accommodation clause and an employer’s duty to reassign. Part I discusses the relevant provisions of the ADA, specifically the reasonable accommodation and reassignment clauses.[20]  Part II explores the split between the federal circuit courts, as well as the United States Supreme Court’s decision in U.S. Airways, Inc. v. Barnett,[21] which establishes a framework for ADA reassignment cases.[22]  Additionally, Part II details the facts of the case in the Fourth Circuit’s Elledge decision and explains the court’s holding.[23]  Part III analyzes the Elledge decision and explains how the Fourth Circuit’s heavy reliance on U.S. Airways was misguided and how it limited the rights of disabled employees further than the Supreme Court or the other circuits ever intended.[24]

Finally, Part IV argues that finding reassignment as a reasonable accommodation, despite an employer’s best-qualified hiring policy, better suits the provisions of the ADA for three reasons.[25]  First, the text and legislative history of the ADA support finding reassignment as a reasonable accommodation when there are no other accommodations an employer can make to employ their employees with disabilities.[26]  Second, reassignment maintains the ADA’s burden-shifting test, which the Supreme Court outlines in U.S. Airways, and allows the fact-intensive inquiry as to whether an accommodation is reasonable to stay with the jury.[27]  Lastly, the ADA’s reassignment clause sufficiently protects employers as to not make reassignment unreasonable.[28]

I. The Americans with Disabilities Act and The Reasonable Accommodation Clause

The ADA prohibits discrimination by an employer “against a qualified individual on the basis of disability” in any of the “terms, conditions, and privileges of employment.”[29]  A qualified individual under the ADA is “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”[30]  An individual’s essential job functions are the “fundamental job duties of the employment position.”[31]  Thus, the ADA requires employers to identify the essential functions of the job and then determine if the employee can perform them with a reasonable accommodation.[32]  If the employer determines the employee can perform the essential functions of the job with an accommodation, the employer’s failure to provide such an accommodation means the employer has engaged in a form of unlawful discrimination.[33]  The only way for an employer to overcome the reasonable accommodation requirement is by demonstrating that such a requirement would impose an undue hardship on the operation of its business.[34]

The ADA fails to provide a definition for what constitutes a reasonable accommodation,[35] but it does provide employers with a list of possibilities, one of them being reassignment of the employee to a vacant position.[36]  Despite the inclusion of reassignment in the statute, reassignment is intended to be an accommodation of last resort, requiring employers to reassign an employee with a disability only when there is no other accommodation that can keep the employee employed or when all other accommodations would pose an undue hardship on the employer.[37]  If keeping the employee in their current position is not possible, however, then the door to reassignment opens and must be considered.[38]  Since reassignment to a vacant position is specifically listed within the statutory text of the ADA, proponents of mandatory reassignment argue that the Act mandates it so long as the disabled employee is qualified.[39]  On the other hand, opponents of mandatory reassignment argue that because the ADA uses permissive language, it cannot require mandatory reassignment; these opponents believe Congress simply listed reassignment as something that “may” qualify as a reasonable accommodation.[40]  This permissive language has undoubtedly contributed to the controversy surrounding an employer’s duty to reassign;[41] the issue becomes more difficult when an employer normally fills job vacancies using a best-qualified hiring policy. 

II. The Circuit Courts Split

During the last two decades, federal circuit courts have disagreed as to whether the ADA requires mandatory job reassignment, which would require an employer to reassign a qualified disabled employee to a vacant position even if there is a better qualified individual.[42]  The Supreme Court has not addressed this specific question,[43] but it did address whether mandatory reassignment is reasonable when an employer utilizes a different nondiscriminatory hiring policy, specifically a seniority system, in U.S. Airways.[44]  Though not directly on point, lower courts have relied on U.S. Airways to support their position on reassignment when an employer has a best-qualified hiring policy in place.[45]  Unfortunately, the Supreme Court’s guidance has only divided the lower courts further, resulting in inconsistent applications of the law.[46]

A. The Supreme Court’s Decision in U.S. Airways, Inc. v. Barnett

In U.S. Airways, the Court was faced with the issue of whether an employer’s nondiscriminatory seniority system trumps a disabled employee’s accommodation request for a vacant position.[47]  The majority found reassignment to be unreasonable when it violates the rules of a seniority system because of the importance seniority has to employee-management relations.[48]  As the Court noted, seniority systems create “expectations of fair, uniform treatment” that would be undermined if a more junior employee were automatically reassigned to the vacancy.[49]  The effect of U.S. Airways is that employers no longer need to prove an undue hardship resulting from reassignment on a case-by-case basis—reassignment is presumed unreasonable if it violates an employer’s seniority system.[50] 

In U.S. Airways, reassignment was held to be unreasonable.[51]  But the holding was not a complete blow to employees with disabilities.  In its opinion, the Court acknowledged that the ADA requires employers to treat an employee with a disability preferentially, regardless of an employer’s disability-neutral rule.[52]  The Court emphasized that if it were not for the employer’s seniority system, an employee’s reassignment request would normally be reasonable within the meaning of the statute.[53]  Additionally, the Court held that employees may show special circumstances, based on the particular facts of their case, that warrant a finding that reassignment is reasonable despite an employer’s seniority system.[54]  Since U.S. Airways, a collection of courts have considered whether other nondiscriminatory policies, such as a best-qualified hiring policy, would make reassignment unreasonable.[55]  As a result, the split between the circuit courts on best-qualified hiring policies was borne.

B. The Disagreement Between the Circuit Courts

Before the Fourth Circuit’s decision, the Eighth and Eleventh Circuits found mandatory reassignment to be unreasonable when an employer utilized a best-qualified hiring policy,[56] and the Seventh and the Tenth Circuits found it reasonable.[57] 

  1. Circuit Courts Finding Mandatory Reassignment Unreasonable

The Eleventh and Eighth Circuits held that the ADA does not provide disabled employees preferential treatment.[58]  In these circuits, employers simply must identify to the employee that a vacancy exists and then permit the employee to apply equally amongst other applicants; the employer is not required to automatically reassign the employee to the vacant position.[59]  These circuits find the ADA’s permissive language to be indicative that Congress did not intend for reassignment to be required in all circumstances.[60]  Holding otherwise would “convert a nondiscrimination statute into a mandatory preference statute” that would be inconsistent with the nondiscriminatory purpose of the ADA.[61]  Additionally, these circuits rely on the Supreme Court’s decision in U.S. Airways to support their stance that a best-qualified policy automatically makes mandatory reassignment unreasonable.[62]  Since employers operate their businesses for profit, it would be unreasonable for an employer to pass over the best-qualified job applicant in favor of an employee with a disability because it would hinder job efficiency and good performance.[63] 

  1. Circuit Courts Finding Mandatory Reassignment Reasonable

The Seventh and Tenth Circuits find themselves on the opposite side, interpreting the ADA to require mandatory reassignment despite an employer’s nondiscriminatory best-qualified hiring policy.[64]  These circuits believe that allowing an employee to compete for a job open to the public is not an accommodation at all.[65]  For them, the ADA requires more; its “reference to reassignment would be redundant if permission to apply were all it meant.”[66]  Thus, an accommodation requires an active effort on the part of the employer—simply allowing an employee to compete does not fulfill this obligation.[67]

Like the Eighth and Eleventh Circuits, which rely on the ADA’s language to support their position, the Seventh and Tenth Circuits do as well.  The ADA defines reasonable accommodation to include “reassignment to a vacant position” rather than “consideration of reassignment to a vacant position.”[68]  Thus, these circuits rely on the ADA’s language to argue that if consideration of an applicant were all that was required by the ADA, then employers

could adopt a policy in favor of hiring the most qualified candidate such that a disabled employees could never rely on reassignment to establish the existence of a reasonable accommodation . . . . Such a result would effectively and improperly read ‘reassignment to a vacant position’ out of the ADA’s definition of ‘reasonable accommodation.’[69]

Additionally, the Seventh and Tenth Circuits gave considerable deference to guidelines issued by the Equal Employment Opportunity Commission (“EEOC”), which Congress authorized to implement the ADA.70

 

These circuits deferred to the EEOC’s interpretation of the ADA, which views the ADA as requiring mandatory reassignment when no other accommodations can accommodate the employee with a disability.71  “Reassignment means that the employee gets the vacant position if s/he is qualified for it.”72  In contrast to the Seventh and Tenth Circuits’ consideration of the EEOC’s interpretation, and despite the EEOC’s clear belief that employers are required to reassign employees with disabilities as an accommodation of last resort, the Eighth and Eleventh Circuits gave no consideration to the EEOC’s interpretation of the statute in their opinions.73

The Seventh Circuit, prior to the Supreme Court’s decision in U.S. Airways, originally held that employers utilizing best-qualified hiring policies were not required to reassign employees with disabilities to vacant positions if there was a more qualified candidate seeking the same position.74  But the court reversed its decision in light of the Supreme Court’s holding in U.S. Airways.75  The Seventh Circuit found U.S. Airways as support for mandatory reassignment, despite an employer’s best-qualified hiring policy.76  The court began by stating that the decision in U.S. Airways was a very narrow, fact-specific exception limited to cases where an employer uses a seniority system to fill job vacancies.77  It then distinguished a seniority system, which involves the rights of other employees, from a best-qualified policy, which does not implicate the rights of others.78  By distinguishing the two types of hiring policies, the Seventh Circuit explained why the holding in U.S. Airways does not survive in cases involving best-qualified policies.79  Thus, while the Eighth and Eleventh Circuits interpreted the Supreme Court’s decision in U.S. Airways as support for the view that reassignment is unreasonable when an employer utilizes a best-qualified hiring policy,80 the Seventh Circuit found the opposite, going so far as to reverse its own precedent.81 

C. The Fourth Circuit Weighs In

This past year, the Fourth Circuit in Elledge broke the even split between the federal circuit courts when it joined the Eighth and Eleventh Circuits by holding that employees with disabilities are not entitled to special priority for reassignment.82  The holding is significant because it conflicts with district court decisions made within the Fourth Circuit.83  But more importantly, it is significant because it goes beyond the decisions of its sister circuits and the Supreme Court by foreclosing the possibility of reassignment under any circumstance when an employer utilizes a best-qualified hiring policy.84

Chuck Elledge was an employee of Lowe’s Home Center (“Lowe’s”) and served as the company’s Market Director of Stores (“MDS”) for almost a decade—that is, until he began experiencing problems with his knee.85  After several surgeries, Elledge’s doctor restricted his walking to no more than four hours a day and his workday to no more than eight hours.86  These restrictions conflicted with the MDS position, which required Elledge to walk the floors he supervised and work over forty hours a week.87  Lowe’s was a sympathetic employer; it accommodated Elledge’s disability by temporarily limiting his working hours and offering him the use of a motorized scooter to ease the strain on his knee during store visits.88  Elledge refused, however, to use the scooter89 and accommodated himself by assigning subordinates to drive him to different store locations.90  When it was determined that Elledge would need reduced hours indefinitely, Lowe’s found that Elledge could not remain in his present position and discussed other career opportunities with him, including a less demanding and lower-paying position.91  Elledge rejected the offer from Lowe’s and applied for two lateral director positions.92  When he did not receive the lateral positions, Elledge brought suit against Lowe’s for violating its obligations under the ADA by removing him from the MDS role and refusing to automatically reassign him to either of the other two vacant director positions.93  Lowe’s’ maintained that it did not violate the ADA for failing to reassign Elledge because it selected its candidates based on its “succession planning and best-qualified hiring policies.”94

The Fourth Circuit began its inquiry by determining whether Elledge was a qualified individual within the meaning of the ADA, meaning that he could perform the essential functions of the job with or without reasonable accommodation.95  Because the MDS position required Elledge to walk sixty-six percent of working hours and to work in excess of eight hours a day, the court concluded he could not perform the essential functions of the job.96  But the court still had to confront whether Lowe’s was required to automatically reassign Elledge to a vacant director position that did not require as much walking, even though Lowe’s normally would fill that vacancy with whom it believed to be the best-qualified candidate.97  The court began by emphasizing that reassignment is an accommodation of last resort because it protects not just the disabled employee but employers and other employees as well.98  Next, the court relied on the Supreme Court’s decision in U.S. Airways where the Supreme Court held that the ADA does not “require employers to construct preferential accommodations.”99  It requires only that “preferential treatment be extended as necessary to provide [employees with disabilities] with the same opportunities as their non-disabled colleagues.”100  The Fourth Circuit interpreted this as requiring employers to simply allow disabled employees to compete for vacancies equally with other candidates.101 

The court next highlighted how the Supreme Court identified “the value of stability in employee expectations” as the most important reason for rejecting reassignment when the employer uses a seniority system.102  The court equated Lowe’s’ merit-based system— which had an “Enterprise Succession Management Process” nested within it—to a seniority system.103  Like in U.S. Airways, the Elledge court found that the policy created employee expectations and that in the “run of cases,” reassignment in contravention of such a policy would be unreasonable.104  The court’s heavy reliance on U.S. Airways resulted in Lowe’s not having to reassign its long-time employee and the subsequent termination of Elledge from his employment.105

III.  Why the Fourth Circuit’s Decision Goes Too Far

The Fourth Circuit was right to conclude that Lowe’s was not required to reassign Elledge to a vacant position based on the specific facts of the case before it.  The court should not, however, have foreclosed the possibility of reassignment for future disabled employees whose last chance of employment at their company truly depends on reassignment.  As the Fourth Circuit noted, reassignment is an accommodation of last resort and is only required when no other accommodation can keep the employee with a disability employed or when all other accommodations would pose an undue hardship on the employer.106  Here, Lowe’s extended a reasonable accommodation to Elledge; it provided him the use of a motorized scooter so he could move across the floors without straining his knee.107  Thus, Lowe’s fulfilled its obligation under the ADA by providing Elledge an accommodation that could keep him in his current position.  But Elledge chose not to accept this accommodation and instead created his own accommodation without the approval of his employer.108  While Elledge’s self-created accommodation allowed him to perform his job, the ADA does not require employers to accommodate employees with the accommodation of their choosing,109 especially when such an accommodation creates extra work for other employees.110  As the court noted, “Lowe’s made reasonable, sensitive attempts to accommodate an indisputably valued employee in his present position,” but Elledge undermined his case by refusing these accommodations and demanding others.111

Additionally, Lowe’s had a unique best-qualified hiring policy, which the court acknowledged as special;112 the Fourth Circuit should not have interpreted this policy as if it were a typical best-qualified hiring policy.  Within its best-qualified system, Lowe’s nested an “Enterprise Succession Management Process,” which it used to prepare its employees for promotion into the heightened responsibilities of the department’s director-level positions.113  It was specifically used to promote talent interdepartmentally and provided lower-level employees with special training to prepare them for directorship positions.114  This special system arguably creates the employee expectations at issue in U.S. Airways because Lowe’s actively trained employees to prepare them for directorship positions were they to open up.115  Thus, the Fourth Circuit’s primary justification for rejecting mandatory reassignment in light of the best-qualified hiring policy was because of the impact it would have on the rights of other employees, which was the “most important” reason held by the Supreme Court in U.S. Airways.116  For this reason, the court found this special kind of best-qualified system fell squarely within the ambit of U.S. Airways.117

The succession system built into the best-qualified system in Elledge was unique and unlike typical best-qualified hiring policies that do not disrupt the rights of other employees.118  Typically, a best-qualified system does not disrupt employee expectations of fair and uniform treatment because the most-qualified applicant never has a right to the position to begin with.119  This differs from a seniority system where employees have an objective way of knowing whether they are next in line for a vacant position.120  When an employer utilizes a best-qualified hiring policy, applicants have no knowledge of whether they are the best-qualified or not.121  Therefore, there are no preconceived expectations of job entitlement.122  Only the employer is impacted when the most-qualified applicant is passed over for a job vacancy by a disabled employee.123

Additionally, an exception to reassignment for seniority systems does not create the problems that would arise if the same exception were applied to best-qualified hiring policies.  Seniority systems provide an objective way of deciding which employee receives the vacant position; the employer simply determines who the most senior employee is.124  This contrasts with a best-qualified hiring policy where the employer must use a subjective analysis to determine who the “best” candidate is.125  This subjectivity allows discrimination against employees with disabilities to go undetected because there is no objective way to determine who the employer believes is the “best.”  This distinction is notable because the Supreme Court was not faced with the threat of undetectable discrimination when it decided to exempt seniority systems from the case-by-case inquiry of whether reassignment creates an undue hardship on the employer.126

The differences between a seniority system and best-qualified hiring policy are profound.  Because the Fourth Circuit found the policy in Elledge to resemble that of a seniority system,127 it should not have foreclosed the possibility of reassignment in lieu of an employer’s best-qualified hiring policy when that was not the precise policy at issue.  A better outcome would have left open the possibility of reassignment and simply found it to create an undue hardship based on those facts, given that Lowe’s had a succession system built into its best-qualified hiring policy, which created employee expectations within the company.128

The Fourth Circuit’s decision ultimately aligned with the Eighth and Eleventh Circuits’ decisions, which the Fourth Circuit referenced as support for its position.129  But, while the other circuits, as well as the Supreme Court, left the door to reassignment cracked open for disabled employees, the Fourth Circuit’s decision shut it closed.  In U.S. Airways, the Supreme Court held that there may be special circumstances that warrant a finding that, despite the presence of a seniority system, the requested reassignment is reasonable on the particular facts of the case.130  The Eleventh Circuit agreed, leaving open the possibility of reassignment despite an employer’s best-qualified hiring policy.131  But the Fourth Circuit’s decision makes no mention of such a possibility, essentially precluding a disabled employee from ever being reassigned to a vacant position when its employer utilizes a best-qualified hiring policy.  This critical omission could result in cases being disposed of prematurely at the summary judgment stage without affording employees the opportunity to prove that the facts of their case warrant reassignment.

IV. Mandatory Reassignment is Consistent with the Provisions of the ADA

The Fourth Circuit’s evidently pro-employer decision leaves employees with disabilities without the opportunity to present to a court why the ADA requires their employer to reassign them to a vacant position, affording them the right to remain employed at their place of employment.  Such a decision goes against the spirit of the ADA and Congress’ vision when it enacted the statute.  Until the Supreme Court hears the precise issue, this Comment proposes that courts interpret the ADA as requiring mandatory reassignment to a vacant position when no other accommodations are available, despite an employer’s nondiscriminatory best-hiring policy.  Such a result better suits the provisions of the ADA.

A. The Text and Legislative History of the ADA Support Mandatory Reassignment

Congress enacted the ADA to protect persons with disabilities from discrimination in employment;132 it explicitly chose to include reassignment to a vacant position as a way to achieve this outcome.133  The provisions of the ADA are meant to be interpreted liberally in favor of the protected class.134  When the ADA was first enacted, and the courts narrowly interpreted the definition of what it meant to be disabled, Congress amended the statute to make it easier for individuals with disabilities to qualify for protections under the ADA.135  Congress’s initiative to amend the statute evidences its intent that the provisions of the ADA, including the reassignment clause, be construed broadly.  The congressional intent for mandatory reassignment is further evidenced by Congress’s inclusion of reassignment within the statute despite its absence in the Rehabilitation Act, which served as the framework for the ADA.136  During the ADA’s legislation, legislators recognized the importance of reassignment by noting that “transfer to another vacant job for which the person is qualified may prevent the employee from being out of work and [the] employer from losing a valuable worker.”137  The emphasis on reassignment during these various stages of the statute’s life demonstrate Congress’s intent for reassignment to be used by employers as a way to keep employees with disabilities employed. 

While Congress’s choice of the words “may include” before the list of possible accommodations is permissive, this permissive language can be reconciled with an employer’s duty to reassign.138  The use of the word “may” before the list of accommodations is simply to indicate that an employer must perform an individualized analysis when determining which accommodation is most appropriate for the employee’s disability and essential job responsibilities.139  It is “[not] an opportunity [to exchange] a ‘best qualified” standard into the word ‘reasonable.’“140  The statutory text of the ADA only calls for the disabled employee to be qualified for the position they wish to retain or seek; it does not require the employee with a disability to be the best-qualified candidate.141  To read the statute otherwise would require courts to judicially amend “the statutory phrase ‘qualified individual with a disability’ to read, instead, ‘best qualified individual, notwithstanding the disability.’”142  If Congress had wanted to protect most-qualified individuals, it could have stated that employers are not required to pass over more qualified candidates.143

The purpose and spirit of the ADA supports the need for mandatory reassignment.  The ADA was enacted after Congress realized that “the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis.”144  Allowing an exception to reassignment due to an employer’s best-qualified-hiring policy would provide employers with an easy and undetectable avenue to discriminate against individuals with disabilities.  Congress explicitly acknowledged that prejudices against people with disabilities will prevent them from competing on an equal basis with those who do not have disabilities.145  As such, the argument that the ADA simply requires disabled employees to compete for job vacancies is unwarranted, especially in light of the Supreme Court’s acknowledgement that the ADA requires affirmative conduct and preferential treatment.146  Thus, reassignment without competition is consistent with the plain meaning of the statute, its legislative history, and the Supreme Court’s interpretation of the ADA.

A hiring policy which uses an employer’s subjective determination on the relative strength of different applicants would allow bias and prejudice to influence the employer’s ultimate hiring decision.  In 2019, there were over twenty-four thousand ADA claims charged by the EEOC,147 and the unemployment rate for employees with disabilities is nearly twice that of nondisabled workers.148  With these numbers in mind, it is not surprising that in a study where mock job applications were sent to employers, applicants who disclosed disabilities received twenty-six percent fewer expressions of employer interests than those applicants who reported no disability.149  These statistics support the position that reassignment to a vacant position should be mandatory because discrimination against persons with disabilities continues to persist today.150  Since reassignment is the accommodation of last resort, it is often the last chance for an employee with a disability to remain employed.151  The consequences for the passed over “best-qualified” candidate are not nearly as severe; they simply remain in their current position while the opportunity to move into another position is deferred rather than lost.152  Because reassignment is the last saving grace to keep the employee employed, it should be read as a mandatory requirement to properly carry out the ADA’s purpose of ensuring the “full participation, independent living, and economic self-sufficiency” of individuals with disabilities.153 

B. Burden-Shifting Test and Fact-Intensive Inquiry

Rather than a per se rule that precludes reassignment in every circumstance when an employer utilizes a best-qualified hiring policy, courts should find reassignment as being generally reasonable, then allow employers to establish why reassignment would create an undue hardship given the specific facts of their case.  Such an approach is consistent with the burden-shifting test framed by the Supreme Court in U.S. Airways.154  Under this framework, the employee with a disability must first prove that an accommodation is reasonable on its face.155  If “the employee cannot show the accommodation is reasonable ‘in the run of cases,’” then summary judgment against the plaintiff-employee is appropriate.156  It is already established that reassignment is generally a reasonable accommodation in ADA cases;157 therefore, the burden is on the employer to establish special case-specific reasons demonstrating why reassignment would cause them an undue hardship.158

Following the Supreme Court’s framework on a case-by-case basis better follows the provisions of the ADA than a rule precluding reassignment when an employer has a best-qualified policy because reasonable accommodation requests and undue hardship defenses are fact-intensive inquiries that are meant to be considered on a case-by-case basis.159  A per se rule outwardly establishing reassignment as unreasonable when an employer has a best-qualified policy would prematurely dispose of cases at the summary judgment stage, denying employees with disabilities from presenting their cases to a jury and demonstrating why the specific facts of their case warrant reassignment.  More importantly, if failure to reassign claims are prematurely disposed of, then employers may easily hide intentional discrimination in the name of hiring a “better-qualified” individual.  The need for these cases to reach a jury is imperative given that discrimination may be easily covered up by an employer’s justification of hiring the “best-qualified” candidate.  The jury should be charged with deciding whether the employer’s choice for the vacant position was actually the better-qualified individual or whether the “employer consciously selected a less-qualified candidate––something that employers do not usually do, unless some other strong consideration, such as discrimination, enter[ed] into the picture.”160 

Rather than shutting the door on reassignment, a better approach would require employers to demonstrate why reassignment is unreasonable given their business circumstances.  Under this approach, an employee can survive a motion for summary judgment if the employer fails to reassign the employee to a vacant position.  A jury can then decide whether (1) a vacant position existed; (2) the employee was qualified for the vacant position; and (3) reassignment would have caused the employer undue hardship.161  This approach is consistent with the Supreme Court’s framework in U.S. Airways, allows employees with disabilities to challenge their employer’s determination of their qualifications, and retains the jury’s role in these fact-intensive inquiries.

C. The ADA Sufficiently Protects Employers from Any Potential Abuse by the Reassignment Accommodation

Employers are naturally hesitant of a law that would require them to reassign employees to positions they were not hired for.  A per se rule precluding reassignment when an employer utilizes a best-qualified hiring policy is unnecessary, however, because the ADA already provides employers with sufficient statutory protections.162  To begin, reassignment is the accommodation of last resort, meaning that employers are only required to consider reassignment when no other accommodation is available or when any available accommodation would create an undue hardship on their business.163  The ADA’s last resort status protects employers by requiring employers and employees to consider all other possible accommodations before reassignment becomes a possibility.

The ADA only requires employers to accommodate disabled employees if the employee can first prove they are qualified, meaning they can perform the essential functions of the job.164  When considering reassignment to a vacant position, the employee must prove they can perform the essential functions of the job they are seeking.165  This qualification protects the employer and allows them to deny reassignment if the employee is not qualified for the vacant position.  Further, an employer does not need to create a vacancy for the employee with a disability; reassignment is only necessary when there is already a vacancy in place.166  This protects employers from potential backlash from other employees whose positions might be compromised if the employer were forced to create job vacancies.  It also serves as a financial protection since employers will not need to create a new position and hire an extra employee.  Additionally, the employer has the right to decide which vacant job position is to be offered to the employee;167 the employee does not have the right to decide, and the reassignment need not involve a promotion.168

Finally, the employer is always free to show that reassignment would create an undue hardship on their business given the particular facts of their case.169  As indicated in Elledge, there are circumstances where reassignment would prove an undue hardship on an employer who uses a best-qualified hiring policy.170  This defense protects employers who find themselves in situations where reassignment may affect the rights of other employees or cause other hardships for the employer.171  As such, the provisions of the ADA sufficiently protect employers from potential abuse.  The Act’s limitations mean it will be used infrequently, reserving its protections for those special circumstances where employees with disabilities are left with no other means to remain employed.

Conclusion

The split between the federal circuit courts with respect to an employer’s duty to reassign has resulted in inconsistent applications of the law, leaving both employees and employers confused as to their rights and obligations under the ADA.  The Supreme Court failed to resolve the ambiguity involving an employer’s duty to reassign; it only complicated the inquiry as evidenced by the conflicting interpretations of U.S. Airways used by the lower courts.  As a result, in some states, a qualified person with a disability will automatically be reassigned to a vacant position as a form of reasonable accommodation.  In others, the person with a disability must either compete for the vacant position amongst other applicants and potentially still not receive the position or leave their job and face unemployment. 

When Congress enacted the ADA, it realized the prejudice that people with disabilities face in employment; those prejudices are still very much alive today.  In order to carry out the Act’s main purpose, which is to allow more individuals with disabilities to enter the workplace and remain employed, reassignment should be required by employers, even if there is a better-qualified candidate for the vacancy.  Until the Supreme Court hears the issue, courts should require employers to reassign their employees with disabilities when no other accommodation can keep them employed.  Once an employee with a disability has established that they are otherwise qualified for the position, the burden should shift to the employer to demonstrate why reassignment would cause them an undue hardship.  To read the provisions of the ADA otherwise would allow employers to always deny people with disabilities vacant positions in the name of a best-qualified hiring policy; such a rule would essentially remove the reassignment clause from the list of accommodations written in the ADA.

Belen Wilson*

 

 

      [1].   Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101­–12213.

      [2].   Anniversary of Americans with Disabilities Act: July 26, 2020, U.S. Census Bureau: Facts & Features (June 17, 2020), https://www.census.gov/newsroom/facts-for-features/2020/disabilities-act.html.

      [3].   See 42 U.S.C. § 1210(b)(1); see also id. § 1210(a)(3) (finding that “discrimination against individuals with disabilities persists in such critical areas as employment”); Stephen F. Befort & Tracey Holmes Donesky, Reassignment Under the Americans with Disabilities Act: Reasonable Accommodation, Affirmative Action, or Both?, 57 Wash. & Lee L. Rev. 1045, 1046 (2000) (stating that one of Congress’s principal reasons for enacting the ADA was to help disabled people enter and stay in the workplace).

      [4].   U.S. Dep’t of Just., ADA Series Commemorates Upcoming Anniversary (2017), https://www.justice.gov/archives/opa/blog/ada-series-commemorates-upcoming-anniversary

      [5].   See Lawrence D. Rosenthal, Most-Qualified-Applicant Hiring Policies or Automatic Reassignment for Employees with Disabilities? Still a Conundrum Almost Thirty Years After the Americans with Disabilities Act’s Enactment, 70 Baylor L. Rev. 715, 716 (2018) (finding that much of the early litigation concerning the ADA resulted in many pro-defendant opinions to the detriment of disabled employees); see also Stephen F. Befort, The Most Difficult ADA Reasonable Accommodation Issues: Reassignment and Leave of Absence, 37 Wake Forest L. Rev. 439, 440 (2002) (stating that during the ADA’s early years there was heavy litigation concerning the scope of the “disability” definition); Civil Rights Div., U.S. Dep’t of Just., Questions and Answers about the Department of Justice’s Notice of Proposed Rulemaking to Implement the Americans with Disabilities Act Amendments Act of 2008 (Jan. 30, 2014), https://www.ada.gov/nprm_adaaa/adaaa-nprm-qa.htm (stating that amendments to the ADA were passed as a result of Supreme Court decisions that narrowly interpreted the ADA).

      [6].   42 U.S.C. § 12101(b).

      [7].   See generally Rosenthal, supra note 5 (finding that early litigation concerning the ADA resulted in many pro-defendant opinions).

      [8].   Id. at 716–17; see also ADA Amendments Act of 2008, Pub. L. No. 110–325, 122 Stat. 3553.  The “Findings and Purposes” section of the ADAAA states that the amendments are a direct response to some Supreme Court decisions, which narrowly interpreted the ADA.  See id. at 3554.

      [9].   See Rosenthal, supra note 5, at 716–17 (explaining that the ADAAA was passed to make the ADA more helpful for individuals with disabilities as a result of too many pro-defendant court opinions).

     [10].   See, e.g., John E. Murray & Christopher J. Murray, Enabling the Disabled: Reassignment and the ADA, 83 Marq. L. Rev. 721, 722 (2000) (stating that courts disagree as to the scope and parameter of an employer’s duty to accommodate its disabled employees, specifically through reassignment). 

     [11].   See generally Befort, supra note 5 (stating that the attention of courts has shifted to the reasonable accommodation clause); Michael Creta, Note, The Accommodation of Last Resort: The Americans with Disabilities Act and Reassignments, 55 B.C. L. Rev. 1693, 1697 (2014).  The reasonable accommodation clause includes the reassignment clause, which lists reassignment to a vacant position as a type of reasonable accommodation.  42 U.S.C. § 12111(9).

     [12].   979 F.3d 1004 (4th Cir. 2020).

     [13].   See id. at 1007–09.  A most-qualified (or best-qualified) hiring policy is a policy in which the employer hires the most-qualified applicant for a vacant position.  See id. at 1016.

     [14].   Id.

     [15].   Id. at 1014–15.

     [16].   See Stephen F. Befort, Reasonable Accommodation and Reassignment Under the Americans with Disabilities Act: Answers, Questions and Suggested Solutions After U.S. Airways, Inc. v. Barnett, 45 Ariz. L. Rev. 931, 944 (2003) (“Of all the accommodations listed in the ADA, the reassignment accommodation has proven to be the most difficult to apply.”).

     [17].   See id. (stating that reassignments have generated more litigation than any other reasonable accommodation).

     [18].   Compare Elledge, 979 F.3d at 1016–18 (finding mandatory reassignment to be unreasonable when an employer utilizes a best-qualified hiring policy), and EEOC v. St. Joseph’s Hosp., Inc., 842 F.3d 1333, 1346–47 (11th Cir. 2016) (same), and Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 483 (8th Cir. 2007) (same), with EEOC v. United Airlines, Inc., 693 F.3d 760, 761 (7th Cir. 2012) (finding that the ADA mandates reassignment to another position when there is no other reasonable accommodation the employer can make), and Smith v. Midland Brake, Inc., 180 F.3d 1154, 1181, 1183 (10th Cir. 1999) (same).

     [19].   See, e.g., Elledge, 979 F.3d at 1018 (“In order to prove a prima facia case that a removal violated the ADEA, [a plaintiff] must show inter alia that he was qualified for his job.”).  See also discussion infra Part III.

     [20].   See infra Part I.

     [21].   535 U.S. 391 (2002).

     [22].   See infra Part II.

     [23].   See infra Part II.C.

     [24].   See infra Part III.

     [25].   See infra Part IV.

     [26].   See infra Part IV.A.

     [27].   See infra Part IV.B.

     [28].   See infra Part IV.C.

     [29].   42 U.S.C. § 12112(a).

     [30].   Id. § 12111(8).

     [31].   29 C.F.R. § 1630.2(n)(1) (2021).

     [32].   See Creta, supra note 11, at 1702 (explaining how the ADA requires employers to engage in a two-step inquiry); Befort & Holmes Donesky, supra note 3, at 1051 (same).

     [33].   42 U.S.C. § 12112(b)(5)(A) (defining discrimination as the failure to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability”).

     [34].   Id.  An undue hardship is an “action requiring significant difficulty or expense.”  Id. § 12111(10)(A).

     [35].   See Thomas F. O’Neil III & Kenneth M. Reiss, Reassigning Disabled Employees Under the ADA: Preferences Under the Guise of Equality?, 17 Lab. Law. 347, 349 (2001) (stating that the statute “provides no guidance whatsoever in determining whether a certain accommodation is reasonable”).

     [36].   See 42 U.S.C. § 12111(9)(B).

     [37].   EEOC, Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (2002), https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada.

     [38].   Id.

     [39].   See, e.g., Smith v. Midland Brake, Inc., 180 F.3d 1154, 1165 (10th Cir. 1999).

     [40].   See EEOC v. St. Joseph’s Hosp., Inc., 842 F.3d 1333, 1345 (11th Cir. 2016) (“The ADA does not say or imply that reassignment is always reasonable.  To the contrary, the use of the word ‘may’ implies just the opposite: that reassignment will be reasonable in some circumstances but not in others.”). 

     [41].   See, e.g., Court Holds ADA Does Not Require Reassignment Without Compensation, Shawe Rosenthal LLP (Dec. 31, 2016), https://shawe.com/articles/court-holds-ada-does-not-require-reassignment-without-competition/.

     [42].   See St. Joseph’s Hosp., 842 F.3d at 1345 (holding that reassignment is not mandatory under the ADA). But cf. Smith, 180 F.3d at 1165 (holding that reassignment is mandatory).

     [43].   In 2007 the Supreme Court agreed to address whether reassignment would be reasonable in the context of most-qualified hiring systems, but the parties settled the case prior to oral argument rendering it moot.  See Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 483 (8th Cir. 2007).

     [44].   See U.S. Airways, Inc, v. Barnett, 535 U.S. 391, 392 (2002).

     [45].   See, e.g., St. Joseph’s Hosp., 842 F.3d at 1345.

     [46].   Compare Huber, 486 F.3d at 483 (finding that the Supreme Court’s decision in U.S. Airways bolstered its decision that reassignment is unreasonable when an employer utilizes a best-qualified hiring policy), with EEOC v. United Airlines, Inc., 693 F.3d 760, 764–65 (7th Cir. 2012) (finding that the Supreme Court’s decision in U.S. Airways provides support for noncompetitive reassignment). 

     [47].   U.S. Airways, 535 U.S. at 391.

     [48].   Id. at 403.

     [49].   Id. at 404.

     [50].   Jared Hager, Note, Bowling for Certainty: Picking Up the Seven-Ten Split by Pinning Down the Reasonableness of Reassignment After Barnett, 87 Minn. L. Rev. 2063, 2081–82 (2003).

     [51].   U.S. Airways, 535 U.S. at 403.

     [52].   Id. at 397.

     [53].   Id. at 403.

     [54].   Id. at 405.

     [55].   See infra notes 57–58.

     [56].   EEOC v. St. Joseph’s Hosp., Inc., 842 F.3d 1333, 1345 (11th Cir. 2016) (“[T]he ADA does not require reassignment without competition for, or preferential treatment of, the disabled.”); Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 483 (8th Cir. 2007) (stating that the ADA “does not require an employer to reassign a qualified disabled employee to a vacant position when such a reassignment would violate a legitimate nondiscriminatory policy of the employer to hire the most qualified candidate”).

     [57].   EEOC v. United Airlines, Inc., 693 F.3d 760, 765 (7th Cir. 2012) (adopting the approach that “the ADA requires employers to appoint disabled employees to vacant positions, provided that such accommodations would not create an undue hardship”); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1165 (10th Cir. 1999) (concluding that reassignment to a vacant position must be offered to the disabled employee if he or she is unable to perform their existing job).  Some consider the D.C. Circuit to require mandatory reassignment to a vacant position; however, the court was not confronted with an employer’s best-qualified hiring policy when it decided the case.  See Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1304 (D.C. Cir. 1998).

     [58].   St. Joseph’s Hosp., 842 F.3d at 1345; Huber, 486 F.3d at 483.

     [59].   See St. Joseph’s Hosp., 842 F.3d at 1345; Huber, 486 F.3d at 483.

     [60].   See St. Joseph’s Hosp., 842 F.3d at 1345 (“To the contrary, the use of the word ‘may’ implies just the opposite: that reassignment will be reasonable in some circumstances but not in others.”). 

     [61].   Huber, 486 F.3d at 483 (quoting EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024, 1028 (7th Cir. 2000) (internal citations omitted), overruled by United Airlines, Inc., 693 F.3d at 764–65).  The Eighth Circuit viewed U.S. Airways as support for its position, even though the Supreme Court stated in that case that the ADA requires employers to sometimes treat an employee with a disability preferentially.  See U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 397–98 (2002).

     [62].   Huber, 486 F.3d at 483 (stating that “[t]his conclusion is bolstered by the Supreme Court’s decision in U.S. Airways, Inc. v. Barnett”).

     [63].   St. Joseph’s Hosp., 842 F.3d at 1346.

     [64].   United Airlines, Inc., 693 F.3d at 763; Smith v. Midland Brake, Inc., 180 F.3d 1154, 1165 (10th Cir. 1999).

     [65].   Smith, 180 F.3d at 1165 (“Allowing the plaintiff to compete for jobs open to the public is no accommodation at all. . . . [The employer’s] policy or practice that all reassignments are made through competitive hiring prevents the reassignment of employees with disabilities to vacant positions for which they are qualified and discriminates against qualified individuals with disabilities.” (quoting Ransom v. State of Ariz. Bd. of Regents, 983 F. Supp. 895, 902–03 (D. Ariz. 1997) (internal citations  and quotation marks omitted)). 

     [66].   Id. (citing Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1304 (D.C. Cir. 1998)).

     [67].   Aka, 156 F.3d at 1304.

     [68].   Smith, 180 F.3d at 1164.

     [69].   Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1205 (10th Cir. 2018).

  1. See 42 U.S.C. § 12116 (authorizing the EEOC to create regulations to implement the ADA).
  2. See EEOC, supra note 37.
  3. Smith, 180 F.3d at 1166–67 (quoting EEOC, Enforcement Guidance: Reasonable accommodation and Undue Hardship Under the Americans With Disabilities Act 44 (1999)).
  4. See EEOC v. St. Joseph’s Hosp., Inc., 842 F.3d 1333, 1345–47 (11th Cir. 2016); Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 482–83 (8th Cir. 2007).
  5. See EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024, 1029 (7th Cir. 2000), overruled by EEOC v. United Airlines, Inc., 693 F.3d 760, 763 (7th Cir. 2012).
  6. See United Airlines, 693 F.3d at 761, 764–65.
  7. Id. at 763.
  8. Id. at 764.
  9. Id. (stating that “the violation of a best-qualified selection policy does not involve the property-rights and administrative concerns (and resulting burdens) presented by the violation of a seniority policy”).
  10. Id.
  11. 80. See supra notes 59–64 and accompanying text.
  12. 81. See United Airlines, 693 F.3d at 765.
  13. 82. See Elledge v. Lowe’s Home Ctrs., LLC, 979 F.3d 1004, 1014–15 (4th Cir. 2020) (stating that the ADA simply provides that employers do not need to create preferential accommodations that maximize workplace opportunities for employees with disabilities).
  14. 83. See Eustace v. Springfield Pub. Schs., 463 F. Supp. 3d 87, 106–09 (D. Mass. 2020); Kosakoski v. PNC Fin. Servs. Grp., Inc., No. 12-cv-00038, 2013 WL 5377863, at *17 (E.D. Pa. Sept. 26, 2013) (finding that an employer’s best-qualified hiring policy does not create a per se undue hardship that would alleviate the employer’s duty to reassign).
  15. 84. Elledge, 979 F.3d at 1016.
  16. 85. Id. at 1007–08.
  17. 86. at 1008.
  18. 87. at 1009–10.
  19. 88. at 1008.
  20. 89.
  21. 90. at 1008, 1012 (according to Elledge, this restructuring also allowed him to perform the true essential functions of his job).
  22. Id. at 1008.
  23. Id.
  24. Id.
  25. Id. at 1008, 1017.
  26. Id. at 1009 (citing 42 U.S.C. § 12111(8)).
  27. Id. at 1012.  When determining whether an employee is a qualified individual when seeking reassignment as a reasonable accommodation, the relevant question is whether the employee is qualified for the new position, not whether the employee is qualified for her current position.  See United States EEOC v. St. Joseph’s Hosp., Inc., 842 F.3d 1333, 1344 (11th Cir. 2016).
  28. Elledge, 979 F.3d at 1013–14.
  29. Id. at 1014.
  30. Id. at 1015.
  31. Id.
  32. Id. at 1016–17.
  33. Id. at 1015 (citing U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 404–05 (2002)).
  34. Id. at 1015–16.
  35. Id. at 1016 (Lowe’s’ policy “invites, rewards, and protects the formation of settled expectations regarding hiring decisions.”).
  36. Id. at 1015–16, 1018.
  37. EEOC, supra note 37.
  38. Elledge, 979 F.3d at 1016 (stating that “Lowe’s offer of a motorized scooter was reasonably calculated to mitigate the disadvantages of Elledge’s reduction in natural mobility”).
  39. Id. at 1012.
  40. The ADA: Your Responsibilities as an Employer (2021), EEOC,

https://www.eeoc.gov/publications/ada-your-responsibilities-employer (last visited Jan. 27, 2022) (“It need not be the best accommodation or the accommodation the individual with a disability would prefer . . . .”).

  1. Elledge, 979 F.3d at 1013 (stating that an employer “do[es] not need to change a job’s essential functions or split them across multiple employees” to accommodate an employee with a disability (citing 29 C.F.R. app. § 1630.2(o))).
  2. Id. at 1013.
  3. Id. at 1016 (“Lowe’s advanced its employees in accordance with a special kind of best-qualified hiring system.” (emphasis added)).
  4. Id.
  5. Id.
  6. Id. (noting that this hiring policy was “a succession system within a best-qualified system”).
  7. Id. at 1015 (citing U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 404–05 (2002)).
  8. Id. at 1016.
  9. Id.
  10. See Hager, supra note 51, at 2091.
  11. See Cal. Brewers Ass’n v. Bryant, 444 U.S. 598, 606, 613–14 (1980) (stating that seniority systems are objective and easily calculable since they are based on the length of employment with a particular employer).
  12. EEOC v. Mfrs. & Traders Trust Co., 429 F. Supp. 3d 89, 115 (D. Md. 2019) (“Unlike a seniority system, a best-qualified candidate policy provides no guarantee of steady and predictable advancement.  Indeed, by its very nature, a best-qualified employee policy undermines predictability, as employees cannot know the pool of applicants against whom they will compete.”).
  13. There is no legal entitlement to a vacant job position based on an employer’s best-qualified hiring policy because the applicant does not have a contractual agreement with the employer that provides a right to the position.  See U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 409 (2002) (O’Connor, J., concurring).
  14. Mfrs. & Traders Trust, 429 F. Supp. 3d at 116.
  15. See Bryant, 444 U.S. at 605–06.
  16. See EEOC v. St. Joseph’s Hosp., Inc., 842 F.3d 1333, 1346 n.5 (11th Cir. 2016) (acknowledging that a merit-based selection policy leaves more room for subjectivity and is inherently more susceptible to abuse for discriminatory purposes).
  17. See Barnett, 535 U.S. at 421–22 (Souter, J., dissenting).
  18. Elledge v. Lowe’s Home Ctrs., LLC, 979 F.3d 1005, 1016 (4th Cir. 2020).
  19. Id.
  20. Id.
  21. Barnett, 535 U.S. at 403–06.
  22. EEOC v. St. Joseph’s Hosp., Inc., 842 F.3d 1333, 1345 (11th Cir. 2016).
  23. 42 U.S.C. § 12101(b)(1).
  24. 42 U.S.C. § 12111(9)(B).
  25. ADA Amendments Act, Pub. L. No. 110–325, 122 Stat. 3553 § 2(a)(4) (2008).  (“[T]he holdings of [recent Supreme Court cases] . . . have narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect . . . .”).
  26. See id.
  27. Creta, supra note 11, at 1698; see also Befort, supra note 5, at 449 (stating that the ADA departed from the Rehabilitation Act by including “reassignment to a vacant position” in its list of reasonable accommodations (quoting 42 U.S.C. § 12111(9)(B))).
  28. H.R. Rep. No. 101-485, pt. 2, at 63 (1990), as reprinted in 1990 U.S.C.C.A.N. 303, 345.
  29. See 42 U.S.C. § 12111(9); EEOC v. Mfrs. & Trust Co., 429 F. Supp. 3d 89, 112 (D. Md. 2019).
  30. Mfrs. & Trust, 402 F. Supp. 3d at 112.
  31. Id. at 113 (quoting Smith v. Midland Brake, Inc., 180 F.3d 1154, 1168 n.7 (10th Cir. 1999)).
  32. 42 U.S.C. § 12112(a).
  33. Mfrs. & Trust, 429 F. Supp. 3d at 112.
  34. Creta, supra note 11, at 1719.
  35. 42 U.S.C. § 12101(a)(8).
  36. See 42 U.S.C. § 12101(a)(2) (stating that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem”).
  37. U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 400 (2002).
  38. EEOC, Charge Statistics (Charges filed with EEOC) FY 1997 Through FY 2020 (2021), https://www.eeoc.gov/statistics/charge-statistics-charges-filed-eeoc-fy-1997-through-fy-2020.
  39. Press Release, U.S. Bureau of Lab. Stats., Persons with a Disability: Labor: Force Characteristics Summary (Feb. 24, 2021), https://www.bls.gov/news.release/disabl.nr0.htm.
  40. Sarah Parker Harris & Rob Gould, Research Brief: Experience of Discrimination and the ADA, ADA Nat’l Network (2019) (citing J. E. Beatty, Career Barriers Experienced by People with Chronic Illness: A US Study, 24 Emp. Resp. & Rts. J., 91–110 (2012)), https://adata.org/research_brief/experience-discrimination-and-ada.
  41. Stacy M. Hickox, Transfer as an Accommodation: Standards from Discrimination Cases and Theory, 62 Ark. L. Rev. 195, 224 (2009).
  42. See Befort, supra note 5, at 469.
  43. Id. at 469–70.
  44. 42 U.S.C. § 12101(a)(7)–(8).
  45. U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401 (2002).
  46. Id.
  47. EEOC v. Mfrs. & Trust Co., 429 F. Supp. 3d 89, 103 (D. Md. 2019) (quoting Barnett, 535 U.S. at 394.
  48. Barnett, 535 U.S. at 402–03 (stating that normally a reassignment request is reasonable within the meaning of the ADA).
  49. Id. at 401–02.
  50. See Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 650 (1st Cir. 2000) (reasonable accommodation requests require “difficult, fact intensive, case-by-case analyses” and are “ill-served by per se rules or stereotypes”).
  51. Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1294 (D.C. Cir. 1998).
  52. See Terrazas v. Medlantic Healthcare Group, Inc., 45 F. Supp. 2d 46, 54 (D.D.C. 1999).
  53. See Smith v. Midland Brake, Inc., 180 F.3d 1154, 1170 (10th Cir. 1999) (“Congress has already significantly cabined the obligation to offer reassignment to a qualified employee who is disabled so as to ensure that it is not unduly burdensome, or even particularly disruptive, of an employer’s business.”). 
  54. EEOC, supra note 37.
  55. See 42 U.S.C. § 12112(b)(5)(A) (stating that an employer only needs to accommodate an “otherwise qualified individual with a disability” (emphasis added)). 
  56. See EEOC, supra note 109.
  57. See id.; see also id., supra note 109 (stating that an employer is “not required to create a position or to bump another employee in order to create a vacancy”).
  58. Smith, 180 F.3d 1154, 1170 (10th Cir. 1999).
  59. Id.
  60. 42 U.S.C. § 12112(b)(5)(A). 
  61. See Elledge v. Lowe’s Home Ctrs., LLC, 979 F.3d 1004, 1016–18 (4th Cir. 2020).
  62. See 42 U.S.C. § 12111(10).

      *.   J.D. Candidate 2022, Wake Forest University School of Law; Political Science & Spanish, B.A. 2018, Emory University.  Thank you to the Board and Staff of the Wake Forest Law Review for their hard work and time on this Comment.  Thank you also to my family and friends for their encouragement and for enduring endless discussions on the ADA.  Lastly, I would like to thank Professor Sue Grebeldinger for igniting my interest in Employment Law.  

By Corinne Spencer

After recent news stories covering the emotional support peacock stopped by airport security and the attack by an emotional support dog that left a Delta passenger with 28 stitches, the Department of Transportation (DOT) is giving airlines the regulatory means to crack down on any and all pets boarding planes unchecked under the label “emotional support” animals (ESAs).

The Americans with Disabilities Act (ADA) protects owners and their animals from discrimination in public places by requiring most restaurants, hotels, and public services to accommodate the presence of service animals.[1] For purposes of the ADA, service animals are narrowly defined as “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”[2]  It does not cover ESAs which can be “certified” by various entities without any formalized training required in order to gain designation entitled to some other protections.[3]

The Air Craft Access Act (ACAA) extends similar rules to air transportation allowing passengers with service animals to fly with their animal in the cabin.[4]  However, the ACAA currently provides a broader definition of service animal than the ADA by including more species of animals and includes ESAs.[5]  This overbroad coverage without distinction between types of aid created a loophole many people take advantage of to designate their pets as ESAs and bring them onto planes under ACAA protection, even if they were not the anticipated beneficiary.

The ACAA guidelines for service animals and ESAs  on planes diverge from the general rules for pets on planes which place limitations on size, species, and breed of pet allowed in the cabins.[6]  General airline pet policies require most pets to be held in a cargo space on planes, which is pressurized for their safety and often considered more comfortable for pets because they are not cramped in small spaces with human travelers.[7]  These policies are intended to promote safety, ease of mobility, and accessibility for others in the plane cabin.  However, many pet owners view it as an inconvenience to travel separately. Under the ACAA, service animals are exempt from the policies affecting pet travel and are instead allowed to travel with their owners in the airplane cabin.[8]  The protections provided to service animals under the ACAA were created under the expectation that service animals are highly and specially trained and thus would not raise some of the same concerns as normal pets, such as attacking passengers or defecating in the aisle.  However, since ESAs receive the same ACAA protection to travel in plane cabins without the same level of training and behavioral obedience required of and demonstrated by service animals, this category of pets has caused major disturbance in terminals and in the air.[9]

Many pet owners began registering their average pets through the National Service Animal Registry or similar registries as ESAs and received certification without meeting any requirements or qualifications.[10] This registry’s site explains that any animal can be an emotional support animal, and they “do not need any specific training because their very presence mitigates the symptoms associated with a person’s psychological/emotional disability.”[11] This certification gets pets access to most flights in cabin under a pseudo-service animal identity. However, when these untrained pets defecate in public spaces, attack bystanders, or cause a scene in the way trained service animals would never do, their legitimacy is questioned.[12] Unfortunately, this has impacted the reputation of service animals as well, making some businesses unwilling to accommodate both types of animals, and sometimes explicitly discriminating against legitimate disabled individuals with service animals.[13]

Through the FAA Reauthorization Act of 2018, Congress specifically asked the DOT to implement new definitions and minimum standards for “service animals” in an effort to clear up the currently broad ACAA. [14]  The DOT has responded with a notice of proposed rulemaking (NPRM) to amend the ACAA guidelines to clarify what qualifies as a service animal and allowing airlines to more readily distinguish between true service animals, ESAs, and regular pets. This would ensure those intended to be protected by the ACAA are protected and also close the loophole that caused this problem to begin with. The DOT proposed regulation, titled, “Traveling by Air with Service Animals” redefines the category of protected animals and offers airlines the ability to set restrictions and ask more questions regarding ESAs.[15] The regulation hopes to respond to requests for clarity in policy, consistency between the ADA and ACAA as well as consistency across the airline industry.

First, the DOT seeks to redefine service animal similar to the ADA as “a dog that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”[16] Additionally, it specifies Service Animal Handlers as qualified individuals with a disability or their safety assistant, to further limit the use of service animals to passengers with disabilities. [17]  In turn, airlines could distinguish between service animals and ESAs, placing ESAs in the same category as pets.[18]

Second, the regulation sets a guideline for approved species. The DOT proposes that service animals be limited to dogs. While it considered miniature horses and capuchin monkeys as secondary options, both were rejected qualifying “service animal” status based on airplanes’ practical space limitations and close quarters, and comments highlighting the rarity at which these animals serve as service animals for traveling individuals.[19] It’s worth noting that this only means that airlines need not permit them unconditionally. Any airline may still accept these animals on board if they choose through make broader policies than the ACAA minimum requirements.[20]  Additionally, the DOT decided against breed restrictions in favor of an exception for airlines to always refuse service if any animals pose a health or safety threat.[21]  The DOT is still collecting comments on the need for any more limiting restrictions.

The NPRM proposes other general limitations to allow airlines to prioritize the safety of its passengers and staff. These include a tethering requirement so long as it does not interfere with the animal’s service, limitations protecting only one or two service animals per passenger with a disability, and a short list of reasons for which a passenger with a disability and her service animal can be refused service.[22]

The most burdensome impact of the new regulation is a requirement of government-issued forms to fly with a service animal and provide proof of the animal’s training and qualifications. [23]  While this burden will fall on passengers traveling with service animals, it will likely be outweighed by the freedom and safety those passengers and their service animals will enjoy due to the NPRM’s far reaching restrictions on other animals. By reducing the number of unqualified animals flying freely, service animals will face fewer distractions and dangers, while also being able to reclaim their positive reputation that has been stained by ESAs trying to bend the rules.


[1] 42 U.S.C. § 12182(a) (2018).

[2] 28 CFR § 35.104 (2016).

[3] U.S. Dep’t of Justice, Frequently Asked Questions about Service Animals and the ADA 2 (2015), https://www.ada.gov/regs2010/service_animal_qa.pdf.

[4] 49 U.S.C. § 41705 (2018); 14 CFR § 382.117 (2009).

[5] See 14 CFR § 382.117(f) (requiring miniature horses, pigs and monkeys to be accepted unless specific factors find the airline unable to do so, however, listing snakes, spiders, ferrets, and reptiles as species that never need to be recognized as service animals).

[6] See Pets, American Airlines, https://www.aa.com/i18n/travel-info/special-assistance/pets.jsp (last visited Feb. 1, 2020); Pet Travel on Delta, Delta, https://www.delta.com/apac/en/pet-travel/overview (last visited Feb. 1, 2020).

[7] See Pet Travel Decisions: Questions About Flying Pets in Cargo, Pet Relocation (Dec. 2011), https://www.petrelocation.com/blog/post/pet-travel-decisions-questions-about-flying-pets-in-cargo; Airline Pet Travel in the Cargo Hold, PetTravel.com, https://www.pettravel.com/news_pet_travel_airline_cargo.cfm (last visited Fed. 3, 2020).

[8] For example, airlines with size or weight restrictions on in-cabin pets cannot impose those limits on service animals. See, e.g., Delta, supra note 6 (“If your pet doesn’t fit in a carrier in the seat in front of you, you can ship your pet with our special shipping service Delta Cargo. Remember, special exceptions apply for passengers traveling with service animals”).

[9] See Paulina Firozi, An ‘Emotional-Support Dog’ Attacked Him on a Flight. He’s Suing Delta and the Owner, Wash. Post (May 29, 2019, 4:09 PM), https://www.washingtonpost.com/transportation/2019/05/29/an-emotional-support-dog-attacked-him-flight-hes-suing-delta-owner/; Hugo Martín, Emotional Support Animals Snap, Bark, and Cause Disruption, Most Flight Attendants Say, LA Times (Sept. 15, 2018, 10:00 AM), https://www.latimes.com/business/la-fi-travel-briefcase1-emotional-support-animals-20180915-story.html.

[10] Dawn Gilbertson, American Airlines Flight Attendant Bitten by Emotional Support Dig, Requires Five Stitches, USA Today (July 23, 2019, 6:05 PM) (“Critics have complained passengers are able to get instant certification for an emotional support animal, also called a comfort animal, online, and that many aren’t properly trained.”)

[11] Nat’l Serv. Animal Registry, https://www.nsarco.com/esa-registration-and-your-legal-rights.html (last visited Jan. 24, 2020).

[12] See Firozi, supra note 9; Marina Pitofsky, Flight Delayed After Woman Brings ‘Emotional Support Squirrel’ on Plane, USA Today (Oct. 10, 2018, 7:11 AM).  In 2018, a USA Today reporter noted the urge for DOT to regulate emotional support animals recognizing that https://www.usatoday.com/story/news/nation/2018/10/10/orlando-florida-flight-delayed-after-woman-brings-squirrel-plane/1587164002/.

[13] See, e.g., Katrina Tilbury, Fake Service Dogs, Real Problems, AP News (May 16, 2018), https://apnews.com/1a28f8e528424fdca2040ea8139e3014/Fake-service-dogs,-real-problems.

[14] See Traveling by Air with Service Animals, 84 Fed. Reg. 6448, 6451 (proposed Feb. 5, 2020) (to be codified at 14 C.F.R. Part 382); The FAA Reauthorization Act of 2018, Pub. L. No. 115-254, Sec. 437 (October 5, 2018). 

[15] Traveling by Air with Service Animals, 85 Fed. Reg. at 6448.   

[16] Id. at 6474.

[17] Id.

[18] Id. at 6458.

[19] Id. at 6453–54.

[20] Id. at 6458. (“[w]hile the Department proposes to allow airlines to treat emotional support animals as pets rather than service animals, airlines could choose to continue to recognize emotional support animals and transport them for free pursuant to an airline’s established policy.”)

[21] Id. at 6464–65.

[22] See id. at 6476.

[23] Id. at 6475.

By Katy Thompson and Lanie Summerlin

          In Equal Employment Opportunity Commission v. McLeod Health Inc., Cecilia Whitten (“Whitten”) was employed by McLeod Health, Inc. (“McLeod”) for twenty-eight years as the editor of McLeod’s internal employee newsletter[1].  Whitten was born with postaxial hypoplasia of the lower extremity, so she lacks certain bones in her feet, legs, and right hand. Therefore, Whitten has limited mobility and has always struggled with falling.[2]  In 2012, Whitten fell three times: twice outside of work and once at work.  As a result, McLeod required Whitten to undergo several fitness-for-duty exams.[3]  McLeod concluded that Whitten was a high-fall risk.  Whitten proposed several reasonable accommodations, but McLeod determined that these accommodations would prevent Whitten from fulfilling her job’s essential function of travelling to the company’s different campuses to collect stories.[4]  Whitten was placed on medical leave and ultimately terminated.[5]

            Whitten filed a complaint with the Equal Employment Opportunity Commission (“EEOC”), prompting EEOC to bring a suit against McLeod on Whitten’s behalf. The district court granted summary judgment to McLeod on both claims and the EEOC appealed.[6]  The issue before the Court was whether McLeod violated the Americans with Disabilities Act (“ADA”) by (1) requiring Whitten to undergo medical exams despite a lack of evidence that the exams were necessary (“illegal-exams” claim); and/or (2) terminating Whitten on the basis of her disability (“wrongful-discharge” claim).[7]

EEOC’s Arguments

            On appeal, the EEOC argued that summary judgment was not appropriate on either claim because there was sufficient evidence for a reasonable jury to rule in favor of the EEOC.[8]

            Under the ADA, an employer may not require an employee to undergo a medical exam unless the exam is job-related and consistent with business necessity.  Specifically, the employer must reasonably believe the employee’s ability to perform an essential job function is limited by a medical condition or that, due to a medical condition, the employee’s performance of an essential job function would pose a direct threat to the safety of the employee or others.[9]  The EEOC appealed summary judgment on the illegal exams claim by arguing that it had provided enough evidence for a reasonable jury to conclude that travelling to the company’s different campuses was not an essential function of Whitten’s job.[10]  McLeod’s description of Whitten’s position did not include travelling to McLeod’s campuses, and Whitten could gather information for the employee newsletter over the phone.  Also, the EEOC argued that McLeod’s belief that Whitten’s falls made her a direct threat was unreasonable because her falls did not cause injury.[11]

            Furthermore, to establish a wrongful-discharge claim a plaintiff must prove (1) she has a disability; (2) she is a qualified individual; and (3) her employer took adverse employment action against her because of her disability.[12]  The EEOC claimed that the first and third elements were clearly met and that it had presented enough evidence on the second element to preclude summary judgment.[13]  A qualified individual must be able to perform the essential functions of the job with or without a reasonable accommodation.[14]  The EEOC argued that a reasonable jury could determine, based on the evidence presented for the illegal-exams claim, that Whitten was a qualified individual because travelling was not an essential function of her job.[15]

McLeod’s Arguments

            On appeal, McLeod argued that summary judgment on both the illegal-exams claim and the wrongful-discharge claim was appropriate.[16]

            Specifically, in regards to the illegal-exams claim, McLeod argued that it did not violate the ADA by requiring Whitten to undergo work-related medical exams because it reasonably believed, based on objective evidence, that Whitten could not perform an essential function of her job without posing a direct threat to herself.[17]  McLeod claimed, and the district court agreed, that one of the essential functions of Whitten’s job was to navigate to and within the medical campuses.[18]  Thus, McLeod argued, the medical exams did not violate the ADA because McLeod believed Whitten’s disability rendered her unable to travel to and within the company’s different campuses without posing a direct threat to herself.[19]

            With respect to the wrongful-discharge claim, McLeod argued that summary judgment was appropriate because Whitten was not a “qualified individual” within the meaning of the ADA.  Specifically, McLeod asked the Court to affirm on the basis that the EEOC had not proven Whitten was a “qualified individual;” the medical exams indicated she could not perform an essential function of her job, regardless of whether she was provided with a reasonable accommodation.[20]

Holding: Summary Judgment Inappropriate as to Both Claims

            The Fourth Circuit reversed summary judgment on both claims and remanded the case to the lower court.[21]  Reviewing the grant of summary judgment on both claims de novo, the Court disagreed with the district court’s determination that McLeod had showed there was no genuine dispute as to a material fact; therefore, summary judgment was inappropriate.[22]

            The Court examined the evidence presented by both parties but disagreed with the district court’s finding that the EEOC failed to produce enough evidence for a jury to rule in its favor.[23] The Court acknowledged that the record contained evidence supporting McLeod’s position that it reasonably believed, based on objective evidence, that Whitten could not navigate to or within its campuses without posing a direct threat to herself.[24]  Based on the testimony of one of Whitten’s superiors, as well as her own testimony agreeing that her job required her to “safely navigate marketing department functions,” the Court found that a reasonable jury court rule in favor of McLeod.[25]

            However, the Court also found that a reasonable jury, based on the evidence presented in the lower court, could rule in favor of the EEOC.[26]  The Court looked at McLeod’s own written description of Whitten’s job, which contained no mention of navigating to and from company events or conducting in-person interviews.[27]  Although Whitten testified that she believed she collected better content by travelling to McLeod’s campus locations, she did not believe it was an “essential” function of her job because she could collect information and conduct interviews over the phone.[28]  Because the Court determined that the EEOC had produced “more than a scintilla of evidence” in support of its position that navigating to and from McLeod’s campus locations was not an essential function of Whitten’s job, the Court reversed summary judgment as to the illegal-exams claim.[29]

            The Court noted that even if the EEOC had failed to produce enough evidence that navigating to and from campus locations was an essential function of her job, McLeod would still not be entitled to summary judgment.[30]  The Court analyzed what McLeod knew before it required Whitten to take the medical exams; specifically, that (1) McLeod knew Whitten had performed the essential function of her job for twenty-eight years, despite her disability; (2) Whitten had recently fallen several times (once at work), none of which resulted in any severe injuries; (3) Whitten missed deadlines, came in late, and struggled with her workload; and (4) Whitten’s supervisor noted she recently appeared winded and groggy.[31]  The Court determined that a reasonable jury, based on the evidence, could have found that McLeod lacked a reasonable, objective basis for requiring Whitten to undergo work-related medical exams.[32]

            As to the wrongful-discharge claim, the question at issue was whether the EEOC had produced enough evidence to convince a jury that Whitten was a “qualified individual” within the meaning of the ADA.[33]  The Court noted that the district court, in analyzing the “wrongful-discharge” claim, relied on its finding that navigating to and from McLeod’s campus locations was an essential function of Whitten’s job.[34]  Because the medical exams had revealed that no reasonable accommodation would permit Whitten to perform that function, the district court concluded that the EEOC had not proven Whitten was qualified to continue her work with the company’s employee newsletter.[35]  However, because the Court had already determined that it was uncertain whether navigating to and from McLeod’s campus locations was an essential function of Whitten’s job, and because the medical exams may have been unlawful, the Court held that McLeod was not entitled to summary judgment.[36]

Conclusion

            Ultimately, the Fourth Circuit held that McLeod was not entitled to summary judgment on either of the EEOC’s ADA claims and remanded for further proceedings.[37]  The Court held that a reasonable jury could conclude that travelling was not an essential function of Whitten’s job.[38]  If a jury made this determination, then there could be sufficient evidence (1) that McLeod’s required medical exams were illegal; and (2) that Whitten was illegally terminated on the basis of her disability.[39]  This case is important because it provides an example of the level of evidence a plaintiff must offer to survive a summary judgment motion on ADA claims.  Also, this ruling sends a message to employers that the Fourth Circuit takes ADA claims very seriously, and it could encourage the EEOC to bring more ADA claims in this circuit.

[1] No. 17-2335, 2019 WL 385654, at *1 (4th Cir. Jan. 31, 2019).

[2] Id.

[3] Id. at *2.

[4] Id. at *3.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id. at *4.

[11] Id.

[12] Id. at *5.

[13] Id.

[14] Id.

[15] Id.

[16] Id. at *3.

[17] Id. at *4.

[18] Id.

[19] Id.

[20] Id. at *5.

[21] Id.

[22] Id. at *3.

[23] Id. at *4–5.

[24] Id. at *4.

[25] Id. at *4.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Id. at *5.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Id. at *4.

[39] Id. at *5.

By Sarah Saint

On April 8, 2016, the Fourth Circuit released its published opinion in the civil case of S.B. v. Board of Education of Harford. S.B., a student with disabilities who attend Aberdeen High School in Harford County, Maryland, by and through his mother, A.L., sued the Harford County Board of Education (the “Board”), alleging that the Board violated § 504 of the Rehabilitation Act by allowing other students to bully and harass S.B. because of his disability. S.B.’s stepfather, T.L., who is a teacher and athletic director at Aberdeen High School, sued in his own right, alleging that the Board violated § 504 by retaliating against him for advocating for S.B. The Fourth Circuit affirmed the district court’s grant of summary judgment to the Board, ruling that neither S.B. nor T.L. provided evidence for their claims.

Facts Presented in the Light Most Favorable to S.B. and T.L.

S.B.’s disabilities included Attention Deficit Hyperactivity Disorder, weak visual-spatial ability, and a nonverbal learning disability. During high school, S.B.’s classmates severely bullied him, insulting him with homophobic slurs, sexually harassing him, physically threatening him, and calling him racist names. S.B.’s parents reported these incidents to the school, which investigated each incident. The school regularly disciplined the offenders and assigned a paraeducator to follow S.B. during school to monitor his safety. Nevertheless, this was not to A.L. and T.L.’s liking, and S.B.’s parents eventually began publicly criticizing the school’s efforts to protect S.B in November 2012.

Around the same time, the school denied T.L. the opportunity to complete a practicum for his master’s degree program at Aberdeen High School. Then, in the spring 2013, the school did not give T.L. tickets to a scholarship banquet for student-athletes and informed him that he would not be teaching the summer physical education classes that year, though he had taught it the previous years.

In April 2013, A.L. and T.L. filed the original complaint. In October 2013, T.L. raised concerns at a parents’ forum about the lack of harassment reporting forms available at the high school.

Despite the bullying, S.B. graduated Aberdeen High School on time in June 2014. He consistently achieved passing grades throughout high school and began taking classes at Harford Community College after graduation.

Procedural History

In June 2013, S.B. and his parents amended their complaints to allege violations of § 504 of the Rehabilitation Act, 29 U.S.C. § 701 et seq.; Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.; and 42 U.S.C. §§ 1983 and 1985. The claims were premised on the fact that the defendants had discriminated against S.B. on his disability by failing to prevent student-on-student bullying and harassment and had retaliated against S.B.’s parents when they advocated for S.B.

In September 2013, the district court dismissed all the individual defendants and S.B.’s claims under §§ 1983 and 1985. A.L. also voluntarily dismissed her retaliation claim. Before the district court at trial and before the Fourth Circuit on appeal were S.B.’s claim of disability-based discrimination in violation of § 504 and the ADA and T.L.’s claim of retaliation under § 504.

After substantial discovery, in April 2015, the district court granted summary judgment to the Board because there was not evidence to support S.B.’s and T.L.’s claims. For one, there was no evidence in the record that the Board had acted with bad faith, gross misjudgment or deliberate indifference in responding to the harassment. Additionally, there was no evidence of a causal link between T.L. advocating for S.B. and any action taken by the Board.

Standard of Review

The Fourth Circuit reviewed the district court’s decision de novo. Summary judgment is proper when there is no genuine dispute to any material fact and the movant is entitled to a judgment as a matter of law. Fact are viewed and inferences are drawn in the light most favorable to the non-moving party, here S.B. and T.L. If no reasonably jury could find for the non-moving party, the appellate court will affirm a grant for a motion for summary judgment.

Fourth Circuit Adopted Davis Standard of Deliberate Indifference for § 504 Claims

Section 504 provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). S.B. claimed that he was subjected to years of sustained and pervasive student-on-student harassment and bullying based on his disability. By the Board failing to prevent the harassment, S.B. alleged that the Board engaged in disability-based discrimination prohibited by § 504.

In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Supreme Court addressed a similar claim under Title IX, which provides for similar protections as § 504 but for gender instead of disability. The Court held in Davis that a school could only be liable for student-on-student harassment when it was “deliberately indifferent” to known acts of such harassment. A negligent failure to learn of or react to student-on-student harassment does not subject a school to liability–only “deliberate indifference to known acts of harassment.” Id. at 642–43.

The Fourth Circuit, in alignment with most other federal courts who have reached this issue, decided that the same reasoning the Davis Court applied to Title IX also applies to § 504 claims arising from student-on-student harassment or bullying because of the statutory parallels. Schools must be on notice of the student-on-student harassment and act with deliberate indifference in order to be held liable for it.

The Fourth Circuit rejected S.B.’s argument that the Fourth Circuit had already adopted a different standard for § 504 liability in 1998: that a school can be liable if the school acted with bad faith or gross misjudgment. The 1998 case that S.B. cited in support of this theory–Sellers v. School Board of City of Manassas, 141 F.3d 524 (4th Cir. 1998)–did not involve school liability for student-on-student misconduct but a school’s own direct conduct. When a school allegedly violates § 504 through it’s own conduct, such as failing to provide a free appropriate public education, the bad faith or gross misjudgment standard applies. However, Sellers said nothing about school liability for student-on-student harassment. Accordingly, the Fourth Circuit found that it is guided by Davis and not Sellers.

S.B.’s Claim of Disability Discrimination in Violation of § 504

To succeed on a § 504 student-on-student harassment claim, a plaintiff must show that he was an individual with a disability; that he was harassed by other students because of his disability; that the disability-based harassment was sufficiently severe, pervasive, and objective offensive that it effectively deprived him of access to educational benefits and opportunities at school; and that the school knew about the disability-based student-on-student harassment and was deliberately indifferent to it.

The Fourth Circuit agreed with the district court that S.B. could not establish that the student-on-student harassment was based on his disability. It was more likely that S.B. was bullied because of his race, which is not actionable conduct under § 504. Further, the Fourth Circuit agreed with the district court that S.B. and his parents never informed the Board that he was being bullied because of his disability, only that he was being bullied. S.B. alleged that the school should have known that the harassment was based on his disability, but the Supreme Court expressly rejected such a standard in Davis.

Finally, the Fourth Circuit agreed with the district court that the Board was not deliberately indifferent under Davis, which is a high standard that requires an official decision by the school no to remedy the student-on-student harassment. The response to the harassment must be clearly unreasonable in light of the known circumstances. Because the school investigated every single incident of harassment of which it was informed, disciplined the offenders, and assigned a paraeducator to accompany S.B., the school acted reasonably. School administrators are entitled to substantial deference when they execute a disciplinary response to student-on-student bullying or harassment, so requests from parents for stronger discipline is not enough to make the school’s chosen actions clearly unreasonable. The Fourth Circuit decided that no reasonable juror could find that the school was less than fully responsive to S.B.’s situation.

T.L.’s Claim of Retaliation in Violation of § 504

Because there was no direct evidence of retaliation, T.L. had to use the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), burden-shifting framework to make a prima facie case of retaliation by showing (1) that he engaged in protected activity, (2) that the Board took an adverse action against him, and (3) that the adverse action was causally connected to his protected activity. The Board did not dispute that T.L. engaged in a protected activity, advocating for S.B., a student with disabilities. The Fourth Circuit found that the Board’s decision not to rehire T.L. to teach the summer physical education class was a materially adverse action. Nevertheless, the Fourth Circuit agreed with the district court that no reasonable jury could find the necessary causal connection between the Board’s adverse action and T.L.’s protected activity. The Board proffered the legitimate, non-retaliatory reason for its decision that they needed one male and one female physical education teacher for the summer, and that another male had more experience than T.L. T.L. attempted to rely on the temporal proximity between the reassignment and the protected activity to show the causal connection, but timing alone cannot defeat summary judgment once an employer offered a legitimate, non-retaliatory reason.

Conclusion

Because the Fourth Circuit agreed with the district court that no reasonable juror could find that the school was deliberately indifferent to the student-on-student harassment of S.B. and no reasonable juror could find that there was a causal connection between T.L.’s protected activity and the adverse action against him, the Fourth Circuit affirmed the judgment of the district court granting the Board’s motion for summary judgment.

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By Taylor Anderson

On November 13, 2015, the Fourth Circuit issued its published opinion regarding the civil case Class v. Towson Univ. The appellant, Towson University (“University”), appealed the district court’s judgment for appellee Gavin Class (“Class”), issuing a permanent injunction prohibiting the University from violating Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act. The Fourth Circuit reversed the district court’s judgment and vacated its injunction because the University reasonably applied its Return-to-Play Policy when determining Class was not “otherwise qualified” to participate fully in the University’s football program.

Class Loses Spot on Football Team

In early August 2013, the University’s football coach informed Class that he had won a starting position as offensive guard. Two days later, however, on August 12, 2013, Class collapsed during drills from an exertional heatstroke and was taken to the Trauma Unit at the University of Maryland Medical Center. Class’ heatstroke resulted in multi-organ failure, including liver failure, necessitating a liver transplant. Additionally, Class was in a coma for nine days and endured more than a dozen other surgical procedures. He was hospitalized for nearly two months, receiving intensive medical care that included chemotherapy to treat post-transplant complications. Class still suffers from the effects of his medical trauma and he is at a heightened risk of subsequent heatstroke.

In January 2014, Class resumed classes as a student at the University and began a lengthy and grueling recovery process. Class expressed his wish to rejoin the team for the 2015-16 football season. The University’s athletic staff directed Class’ request to play to the Team Physician, Dr. Karl E. Kindschi (“Kindschi”).

In the fall of 2014, Kindschi and the physicians on the MedStar medical review team, all of whom were board certified in sports medicine, unanimously concluded that Class could not safely participate fully in the University’s football program. They reached this conclusion after Kindschi conducted a physical examination of Class; reviewed his medical records and his medical history; reviewed the results of a heat tolerance test conducted on August 21, 2014; consulted Class’ liver-transplant physicians; and reviewed medical literature.

The August 2014 heat tolerance test was conducted by the Korey Stringer Institute (“Institute”), a center that researches issues related to heatstroke and heat illness. The Institute first conducted a “low intensity” heat tolerance test on Class and found that Class was unable to complete the test. Class continued to train and on February 6, 2015, the Institute conducted another “low intensity” heat tolerance test on Class. On this second test, Class’ results improved, but the Institute still included restrictions and conditions for Class. After this latter heat tolerance test, Kindschi again refused to clear Class for participation in the football program because he had not shown that he had “sufficient heat tolerance to handle competitive football practices, including scrimmages, and play outdoors in seasonal heat.”

Consistent with NCAA requirements and national best practice, the University applied a written Return-to-Play Policy, which provided that the University’s Team Physician has the final and autonomous authority in deciding if and when an injured student-athlete may return to practice or competition.

A few weeks later, Class commenced this action against the University, alleging that its decision to exclude him from the football program violated the ADA and the Rehabilitation Act. In his complaint, Class alleged that he was disabled in that his “inability to regulate his body temperature and susceptibility to heat stroke substantially limit major life activities, including regulating body temperature, walking, standing and running, when he experiences a heat stroke,” but that he could fully return to football with reasonable accommodations. He claimed that the University’s refusal to allow him to participate in football with these accommodations discriminated against him by reason of his disability.

Following a one-day bench trial, the district court found that Class had a disability within the meaning of the ADA and the Rehabilitation Act. The court determined that the University had discriminated against Class on the basis of his disability by refusing to provide the requested accommodations, particularly an abdominal padding and internal temperature monitoring system that Class requested. On July 17, 2015, the court issued an injunction against the University preventing the University from violating Class’ rights under the ADA and Rehabilitation Act. From the judgment entered, the University appealed to the Fourth Circuit.

Class Not “Otherwise Qualified” to Participate

The main issue before the Fourth Circuit was whether Class was “otherwise qualified” to participate in the University’s football program. In the Fourth Circuit, Class had to show that he was “otherwise qualified” to participate in the University’s football program by establishing (1) that he satisfied the essential eligibility requirements of the program and (2) if not, there were reasonable accommodations that the University could have implemented to enable him to meet the requirements.

(1) Class Did Not Satisfy Essential Eligibility Requirements

When determining whether an educational institution’s eligibility requirement is essential and whether it has been met, the Fourth Circuit accords a measure of deference to the school’s professional judgment. The Fourth Circuit found that the University’s Return-to-Play policy is a legitimate and essential eligibility requirement for participation in its football program and concluded that because Class did not obtain Kindschi’s clearance to return to play under this policy, Class did not satisfy the essential eligibility requirements of the football program.

(2) No Reasonable Accommodations for the University to Implement

Next, the Fourth Circuit considered whether there were reasonable accommodations that the University could have implemented to enable Class to meet the requirements. Class proposed the three accommodations at issue, which were (1) the use of padding to protect Class’ abdominal wall, (2) that Class’ internal temperature be closely monitored in five to ten minute intervals during exercise, and (3) the condition that all exercise be done at the discretion and under the direct observation of the medical professional. In determining this reasonableness, the Fourth Circuit stated that it must determine whether the Team Physician’s decision and, derivatively, the University’s decision was a good-faith application of its policy to protect the safety of student athletes.

The University contended that the requested accommodations are not reasonable because they (1) would not effectively satisfy the University’s safety concerns and (2) would require fundamental changes in the nature of its football program.

Turning to whether the accommodations would effectively satisfy the University’s safety concerns, the Fourth Circuit found that so long as Kindschi’s professional judgment on the accommodations was supported by the record, Kindschi’s professional judgment would prevail. Since Kindschi believed that the accommodations would not satisfy the University’s safety concerns and her position was supported by the record, the Fourth Circuit concluded that Kindschi’s judgment as to the accommodations was not unreasonable.

The Fourth Circuit also determined Class’ proposed accommodations were unreasonable because they would require fundamental changes in the nature of the University’s football program. In particular, the Fourth Circuit held that Class’ proposed accommodations required the University’s Team Physician to allow Class to play football and supervise his participation when, in her medical judgment, she has concluded that he should not be playing at all. Also, during games and practices, it would be unreasonable to have the Team Physician standing on the sidelines waiting to monitor Class’ internal temperature every five to ten minutes, especially since in some games according to the rules of football, the game would not pause for periods extended well beyond that time.

Judgment Reversed

Because Class failed to show that the Team Physician’s judgment and the University’s judgment to reject Class’ proposed accommodations were unreasonable in the context of the risks, the Fourth Circuit reversed the decision of the district court entering judgment in favor of Class.

One judge wrote a dissenting opinion. The dissenting judge believed that the majority incorrectly focused on the subjective good faith of the Team Physician. Instead, the dissenting judge believed that this inquiry should be based on the objective reasonableness of the university’s decision.