While the Americans with Disabilities Act (ADA) requires a wide array of accommodations for workers with disabilities, there are a few things that generally are not required because they fail the law’s “reasonableness” test. Among those are a promotion and a new supervisor.
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On May 4, two federal courts of appeals separately issued decisions on these issues, agreeing with the U.S. Equal Employment Opportunity Commission (EEOC) that some accommodations are just per se unreasonable.
Promotion as Accommodation
In Brown v. Milwaukee Bd. of Sch. Dirs., No. 16-1971, the 7th Circuit heard from an assistant principal for Milwaukee Public Schools. She had injured her knee while restraining a student and required surgery. When she returned to work, she presented a doctor’s note stating that she could not be in the vicinity of potentially unruly students.
The ADA requires that employers reassign workers to vacant positions as an accommodation, but whether those transfers must be noncompetitive remains the subject of debate. It is undisputed, however, that the law does not require promotions.
In Brown, the assistant principal was only able to identify one vacant position that would have accommodated her restrictions. But she wasn’t the most qualified candidate and, because the move would have amounted to a promotion, it was not reasonable, the court said.
The employee argued that the transfer would not have been a promotion but the court wasn’t persuaded. The job paid about $20,000 more than hers and included substantially increased responsibility. “A reasonable jury would be, and we are, forced to conclude that the … position would have been a promotion that the Americans with Disabilities Act did not require,” the appeals court said.
New Supervisor as Accommodation
In Roberts v. Permanente Med. Grp., Inc., No. 15-15540, the 9th Circuit reviewed the claims of a lab assistant who suffered from anxiety following an incident at work. After she took time off, her supervisor warned her that continued absences would result in her termination. The employer eventually determined that her time off was protected by the Family and Medical Leave Act, but the supervisor’s admonition itself worsened her anxiety.
The employee’s doctor requested that she not have any verbal or visual contact with her supervisor. When the employer declined her request, she sued. A district court dismissed her claims and the appeals court upheld that ruling.
The employee’s request was effectively a request for a new supervisor, the appeals court found. “That is per se unreasonable under [EEOC] guidelines,” it said.
Employer Takeaway
Few accommodations will ever be per se unreasonable, but it appears that requests for promotions and new supervisors meet that standard.
In the EEOC’s Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, the commission discusses transfers as a reasonable accommodation. While the agency takes the position that employers must offer noncompetitive reassignment as an accommodation, “reassignment does not include giving an employee a promotion,” it says. “Thus, an employee must compete for any vacant position that would constitute a promotion.”
The agency is just as clear about supervisor change requests: “An employer does not have to provide an employee with a new supervisor as a reasonable accommodation,” it says. The guidance cautions, however, that the ADA may require that supervisory methods be altered as a form of reasonable accommodation. Also, an employee with a disability is protected from disability-based discrimination by a supervisor, including disability-based harassment, the EEOC notes.
 Kate McGovern Tornone is an editor at BLR. She has almost 10 years’ experience covering a variety of employment law topics and currently writes for HR Daily Advisor and HR.BLR.com. Before coming to BLR, she served as editor of Thompson Information Services’ ADA and FLSA publications, co-authored the Guide to the ADA Amendments Act, and published several special reports. She graduated from The Catholic University of America in Washington, D.C., with a B.A. in media studies. |