IN THE
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_______________________________________
No. 96-3018
_______________________________________
ROBERT W. SMITH,
Plaintiff-Appellant,
v.
MIDLAND BRAKE, INC.,
Defendant-Appellee.
________________________________________
On Appeal from the United States District Court
for the District of Kansas
________________________________________
BRIEF AMICUS CURIAE OF THE
EQUAL EMPLOYMENT ADVISORY COUNCIL
AND THE CITY AND COUNTY OF DENVER
IN SUPPORT OF DEFENDANT-APPELLANT
ON REHEARING EN BANC
_________________________________________
Daniel E. Muse
City Attorney
J. Wallace Wortham, Jr.
Ass’t City Att’y Supervisor
Sybil R. Kisken
Assistant City Attorney
1445 Cleveland Place
Room 303
Denver, CO 80202
(303) 640-2931
Ann Elizabeth Reesman*
McGUINESS & WILLIAMS
1015 Fifteenth Street, N.W.
Suite 1200
Washington, D.C. 20005
(202) 789-8600
Attorneys for Amicus Curiae
EQUAL EMPLOYMENT ADVISORY
COUNCIL
Attorneys for Amicus Curiae
CITY AND COUNTY OF DENVER
June 26, 1998
*Counsel of Record
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................................................................................... ii
STATEMENT OF ISSUE........................................................................................................... 1
INTEREST OF THE AMICI CURIAE ....................................................................................... 1
STATEMENT OF THE CASE ................................................................................................... 4
SUMMARY OF ARGUMENT ................................................................................................... 5
ARGUMENT.............................................................................................................................. 6
THE ADA STOPS SHORT OF IMPOSING UPON NON-FEDERAL EMPLOYERS A DUTY
TO FIND A JOB FOR EVERY EMPLOYEE UNABLE TO PERFORM THE FUNCTIONS OF
HIS OR HER CURRENT POSITION DUE TO A DISABILITY ............................................... 6
A.
An Employer Is Required To Make Only Reasonable Accommodation ................. 6
B.
By Definition, The ADA Contemplates Only “Reasonable”
Accommodation .................................................................................................. 9
1.
The Mandatory Reassignment Obligation Applicable to Federal Sector
Employers Does Not Apply to Private Sector or Local Government
Employers .............................................................................................. 10
2.Reassignment Is an Option Circumscribed by the
Word “Reasonable” ................................................................................ 14
C.
“Considering” Reassignment Is An Accommodation In Itself ............................. 17
D.
The Decision Below Should Be Affirmed Because Reassignment Was Not A
“Reasonable” Accommodation for Smith ........................................................... 18
CONCLUSION......................................................................................................................... 19
CERTIFICATE OF SERVICE ................................................................................................. 20
TABLE OF AUTHORITIES
CASES
Benson v. Northwest Airlines,
62 F.3d 1108 (8th Cir. 1995) ............................................................................................ 14, 16
Bragdon v. Abbot,
1998 U.S. LEXIS 4212 (June 25, 1998) ................................................................................... 3
Carrozza v. Howard County,
45 F.3d 425 (4th Cir. 1995) ...................................................................................................... 3
Cassidy v. Detroit Edison Co.,
138 F.3d 629 (6th Cir. 1998) .................................................................................................... 8
Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984) ...................................................................................................... 12
Dalton v. Subaru-Isuzu Automotive, Inc.,
No. 96-2920, 1998 U.S. App. LEXIS 5990
(7th Cir. Mar. 26, 1998) ................................................................................................... 14, 15
Daugherty v. City of El Paso,
56 F.3d 695 (5th Cir. 1995), cert. denied,
516 S. Ct. 1172 (1996) ........................................................................................................... 15
Eckles v. CONRAIL,
94 F.3d 1041 (7th Cir. 1996), cert. denied,
117 S. Ct. 1318 (1997) ........................................................................................................... 16
Gaul v. Lucent Technologies,
134 F.3d 576 (3d Cir. 1998) ................................................................................................... 14
Gonzagowski v. Widnall,
115 F.3d 744 (10th Cir. 1997) .................................................................................................. 8
Hiatt v. Union Pacific Railroad,
65 F.3d 838 (10th Cir. 1995) .................................................................................................... 4
Hudson v. MCI Telecommunications Corp.,
87 F.3d 1167 (10th Cir. 1996) .................................................................................................. 8
Kennedy v. Applause, Inc.,
90 F.3d 1477 (9th Cir. 1996) .................................................................................................... 3
ii
Kralik v. Durbin,
130 F.3d 76 (3d Cir. 1997) ..................................................................................................... 16
Manard v. Fort Howard Corp.,
47 F.3d 1067 (10th Cir. 1995) .................................................................................................. 4
Matthews v. Commonwealth Edison Co.,
128 F.3d 1194 (7th Cir. 1997) .................................................................................................. 3
Milton v. Scrivner Inc.,
53 F.3d 1118 (10th Cir. 1995) ...........................................................................................15-16
Monette v. Electronic Data System Corp.,
90 F.3d 1173 (6th Cir. 1996) .................................................................................................... 7
Sharpe v. American Telegraph & Telegraph Co.,
66 F.3d 1045 (9th Cir. 1995) .................................................................................................. 18
Simmerman v. Hardees Food System,
118 F.3d 1578 (3d Cir. 1998) ................................................................................................... 3
Smith v. Midland Brake,
138 F.3d 1304 (10th Cir. 1998) .......................................................................................... 5, 12
Smith v. Midland Brake,
911 F. Supp. 1351 (D. Kan. 1995) ....................................................................................... 4, 5
Sutton v. United Air Lines,
130 F.3d 893 (10th Cir. 1997) ................................................................................................ 12
Vande Zande v. Wisconsin Department of Administration,
44 F.3d 538 (7th Cir. 1995) ...................................................................................................... 7
Walders v. Garrett,
956 F.2d 1163 (4th Cir. 1992) .................................................................................................. 3
Woodman v. Runyon, 132 F.3d 1330 (10th Cir. 1997) .......................................................passim
DOCKETED CASES
Davoll et al. v. City and County of Denver,
Nos. 97-1381 and 97-1406 (10th Cir.)....................................................................................... 2
United States v. City and County of Denver,
Nos. 97-1403 and 97-1431 (10th Cir.) ...................................................................................... 4
iii
STATUTES
Americans with Disabilities Act (ADA),
42 U.S.C. § 12101 et seq., ................................................................................................... 1, 5
42 U.S.C. § 12111(8) ........................................................................................................ 6, 8
42 U.S.C. § 12111(9) ............................................................................................................ 9
42 U.S.C. § 12112(a) ............................................................................................................ 6
42 U.S.C. § 12112(b)(5) ........................................................................................................ 6
42 U.S.C. § 12112(b)(5)(A) ................................................................................................... 6
Section 501 of the Rehabilitation Act of 1973,
29 U.S.C. § 791 ..................................................................................................................... 10
29 U.S.C. § 791(b) ................................................................................................................. 10
Section 503 of the Rehabilitation Act of 1973,
29 U.S.C. § 793 ....................................................................................................................... 2
Section 504 of the Rehabilitation Act,
29 U.S.C. § 794 ..................................................................................................................... 10
REGULATIONS
29 C.F.R. § 1614.203(g) .................................................................................................... 11, 13
29 C.F.R. § 1630.2(o) (Appendix) ............................................................................................ 11
56 Fed. Reg. 8578 (1991) (codified at 29 C.F.R. Part 1630) ....................................................... 3
LEGISLATIVE HISTORY
H.R. Rep. No. 101-485, pt. 2 (1990)..................................................................................... 9, 17
S. Rep. No. 101-116 (1989) ................................................................................................. 9, 17
MISCELLANEOUS
EEOC Enforcement Guidance: Psychiatric Disabilities and the
Americans with Disabilities Act No. 915.002 (Mar. 25, 1997),
reprinted in 3 EEOC Compl. Man. (BNA) No. 224 ................................................................ 12
EEOC Enforcement Guidance: Workers Compensation and the ADA,
No. 915.002 (Sept. 3, 1996), reprinted in 3 EEOC Compl. Man.
(BNA) No. 216 ...................................................................................................................... 12
iv
2 H.R. Series: Policies and Practices, “Poor Job Performance,”
41:3511 (Warren, Gorham & Lamont 1997)............................................................................ 17
The Oxford English Dictionary (Compact Ed. 1971) .................................................................. 7
Norman J. Singer, Sutherland Stat. Const. (5th ed. 1992) ........................................................... 7
A Technical Assistance Manual on the Employment Provisions
(Title I)of the Americans with Disabilities Act
(EEOC, 1992) ........................................................................................................................ 12
v
The Equal Employment Advisory Council and the City and County of Denver respectfully
submit this brief amici curiae with the consent of both parties. The brief urges this Court to affirm
the judgment below, and thus supports the position of Defendant-Appellee Midland Brake, Inc.
before this Court.
STATEMENT OF THE ISSUE
Whether the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., which requires
employers to provide reasonable accommodation to qualified individuals with disabilities, imposes
a duty on employers to reassign an employee to a vacant position.
INTEREST OF THE AMICI CURIAE
The Employment Advisory Council (“EEAC” or “Council”) is a nationwide association of
employers organized in 1976 to promote sound approaches to the elimination of employment
discrimination. Its membership includes over 300 major U.S. corporations. EEAC’s directors
and officers include many of industry’s leading experts in the field of equal employment
opportunity. Their combined experience gives the Council a unique depth of understanding of the
practical and legal considerations relevant to the proper interpretation and application of equal
employment policies and requirements. EEAC’s members are firmly committed to the principles
of nondiscrimination and equal employment opportunity.
All of EEAC’s members, and the constituents of its association members, are employers
subject to the Americans with
Disabilities Act (ADA or the Act), 42 U.S.C. § 12101 et seq., and
other equal employment statutes and regulations. In addition, many are federal contractors
subject to Section 503 of the Rehabilitation Act of 1973, 29 U.S.C. § 793. The City and County
of Denver (“Denver”) is itself a local government employer, and is a party to two appeals
currently pending in this Court raising issues similar to those presented in the instant case.1
As employers, and potential respondents to ADA charges, EEAC’s members and Denver
are concerned about the scope of an employer’s responsibility to make reasonable accommodation
for an individual with a disability who is unable to perform the essential functions of his or her
current job. EEAC members and Denver routinely make reasonable accommodations to ensure
that qualified applicants with disabilities have equal opportunity to compete for jobs, and to allow
employees with disabilities to perform essential job functions. In some cases, however, neither the
employee nor the employer can identify a reasonable accommodation that will allow an employee
to perform the essential functions of the employee’s current job.
Thus, the issues presented in this appeal are extremely important to the nationwide
constituency that EEAC represents, as well as to Denver as a public employer. A majority of the
panel ruled that the ADA does not obligate a private employer to find a new job for an employee
who is unable to perform the essential functions of his or her current position even with
reasonable accommodation. In contrast, Plaintiff-Appellant Smith and amicus curiae Equal
Employment Opportunity Commission broadly assert that every employer covered by the ADA
has a duty to reassign any employee who is prevented by disability from performing his or her
current job. This expansive view of the ADA’s prohibition against disability discrimination is
unsupported by the Act and would impose on employers a burden never intended by Congress.
Because of its interest in the application of the nation’s civil rights laws, EEAC has, since
its founding in 1976, filed over 430 briefs as amicus curiae in cases before the United States
Supreme Court, the United States Circuit Courts of Appeals and various state supreme courts.
As part of this amicus activity, EEAC has participated in cases in the Supreme Court,2 in this
1
Davoll et al. v. City and County of Denver, Nos. 97-1381 and 97-1406 (10th Cir.); United
States v. City and County of Denver, Nos 97-1403 and 97-1431 (10th Cir.).
2
Bragdon v. Abbott, 1998 U.S. LEXIS 4212 (June 25, 1998).
2
Circuit,3 and in other Circuits,4 involving the proper interpretation of the Americans with
Disabilities Act, as well as numerous cases involving the proper interpretation of the
Rehabilitation Act of 1973, the predecessor to the ADA.5 EEAC also filed extensive comments in
response to the Equal Employment Opportunity Commission’s Notice of Proposed Rulemaking
on its substantive regulations implementing the employment provisions of the ADA. 56 Fed. Reg.
8578 (1991) (codified at 29 C.F.R. Part 1630). In addition, EEAC has briefed a number of other
employment issues in this Court.6
Thus, EEAC and Denver have an interest in, and a familiarity with, the issues and policy
concerns presented to the Court in this case. Indeed, because of its significant experience in these
matters, EEAC is uniquely situated to brief this Court on the importance of the issues beyond the
immediate concerns of the parties to the case.
STATEMENT OF THE CASE
Defendant-Appellee Midland Brake, Inc. (“Midland Brake”), employed Plaintiff-Appellant
Robert W. Smith from September 1984 until March 1993. Smith v. Midland Brake, 911 F. Supp.
1351, 1355 (D. Kan. 1995). At the time of his discharge, Smith was a “light assembler.” Id.
In May 1992, Smith’s treating physician removed him from work due to work-related
dermatitis. Id. Smith filed for and received Social Security disability benefits. Id. In March 1993,
Smith and Midland Brake settled Smith’s workers’ compensation claim, and Midland Brake
terminated Smith’s employment because it could not accommodate Smith’s skin sensitivity. Id.
Smith sued Midland Brake under the ADA.
3
EEAC filed a brief before the panel in the instant case, and, jointly with the City and County of
Denver, on the Petition for Rehearing and Suggestion of Rehearing en banc.
4
E.g., Matthews v. Commonwealth Edison Co., 128 F.3d 1194 (7th Cir. 1997); Kennedy v.
Applause, Inc., 90 F.3d 1477 (9th Cir. 1996); Carrozza v. Howard County, 45 F.3d 425 (4th Cir.
1995); Simmerman v. Hardee’s Food Sys., 118 F.3d 1578 (3d Cir. 1998).
5
E.g., Walders v. Garrett, 956 F.2d 1163 (4th Cir. 1992).
6
E.g., Hiatt v. Union Pac. R.R., 65 F.3d 838 (10th Cir. 1995); Manard v. Fort Howard Corp., 47
F.3d 1067 (10th Cir. 1995).
3
The trial court granted Midland Brake’s motion for summary judgment on Smith’s ADA
claim. Noting that Smith may be prevented from bringing his ADA claim due to his repeated
representations to the federal Social Security Administration that he was “totally disabled and
unable to work,” id. at 1356, the trial judge nevertheless concluded that this issue need not be
resolved, since Smith had failed to state a prima facie case. Id. at 1361. Smith was never released
by his treating physician to return to any job at Midland Brake. Id. at 1361. Accordingly, the
court below concluded, “[i]n light of [Smith’s] representations to the SSA that he was totally
disabled and unable to work, and the fact that the plaintiff never provided Midland Brake with a
medical release for him to return to work, in any capacity, . . . we conclude that no reasonable
jury could find that Mr. Smith was a qualified individual with a disability under the ADA.” Id. at
1362-63.
On appeal, a panel of this Court affirmed the lower court’s decision. Smith v. Midland
Brake, 138 F.3d 1304 (10th Cir. 1998). Responding to Smith’s claim that Midland Brake should
have reassigned him to another job, a majority of the panel concluded that “Midland Brake is not
obligated under the ADA to transfer plaintiff to another position,” id. at 1309, because “after the
plaintiff’s doctor ordered him to stop working in May 1992, no amount of accommodation would
have made him qualified for his job in the light assembly department.” Id.
Smith petitioned for rehearing en banc.
SUMMARY OF ARGUMENT
The Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., requires employers to
provide reasonable accommodations for a qualified individual with a disability. 42 U.S.C.
§12111(8); §12112(b)(5). Accordingly, any potential accommodation, including that of
reassignment to a vacant position, must pass an objective test of reasonableness. Unlike the
federal sector, where reassignment is mandatory for employees who cannot perform their current
jobs due to a disability, the obligations imposed on the private sector are somewhat less stringent.
Woodman v. Runyon, 132 F.3d 1330 (10th Cir. 1997). Contrary to the EEOC’s position in this
4
case, reassignment is not required merely because it may be a last resort. Accordingly, the district
court’s decision should be affirmed.
ARGUMENT
THE ADA STOPS SHORT OF IMPOSING UPON NON-FEDERAL EMPLOYERS A
DUTY TO FIND A JOB FOR EVERY EMPLOYEE UNABLE TO PERFORM THE
FUNCTIONS OF HIS OR HER CURRENT POSITION DUE TO A DISABILITY
A.
An Employer Is Required To Make Only Reasonable
Accommodation
The Americans with Disabilities Act (ADA) of 1990 prohibits discrimination in
employment on the basis of a disability. 42 U.S.C. 12112(a). “Discrimination” under the ADA
includes “not making reasonable accommodations to the known physical or mental limitations of
an otherwise qualified individual with a disability who is an applicant or employee, unless [the
employer] can demonstrate that the accommodation would impose an undue hardship on the
operation of the [employer’s] business . . . .” 42 U.S.C. § 12112(b)(5)(A) (emphasis added).
Under well-accepted principles of statutory construction, the word “reasonable, “ like
every other word in the statute, must be presumed to mean something. 2A Norman J. Singer,
Sutherland Stat. Const. § 46.06 (5th ed. 1992).7 The word “reasonable” clearly limits the scope
and degree of accommodation that the ADA obligates any employer to provide. The relevant
dictionary definition of “reasonable” includes “(1) Endowed with reason; rational; (2) Having
sound judgment; sensible, sane. Also, not asking for too much. . . . (5) Not going beyond the
limit assigned by reason; not extravagant or excessive, moderate.” 2 The Oxford English
Dictionary, at 2432 (Compact Ed. 1971). As the Seventh Circuit has observed, “[R]easonable
may be intended to qualify (in the sense of weaken) “accommodation,” in just the same way that if
one requires a “reasonable effort” of someone this means less than the maximum possible effort,
or in law that the duty of “reasonable care,” the cornerstone of the law of negligence, requires
7
According to Sutherland, “[i]t is an elementary rule of construction that effect must be given, if
possible, to every word, clause and sentence of a statute.” 2A Norman J. Singer, Sutherland Stat.
Const. §46.06 (5th ed. 1992) (quoting State v. Bartley, 39 Neb. 353, 58 N.W. 172 (1894)).
5
something less than the maximum possible care.” Vande Zande v. Wisconsin Dep’t of Admin., 44
F.3d 538, 542 (7th Cir. 1995). Cf. Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 118384 n. 10 (6th Cir. 1996) (noting that the determination of whether a proposed accommodation is
generally “reasonable” is analytically distinct from the question of whether implementing the
accommodation would impose an undue
hardship on the specific employer).
Thus, the ADA does not require an accommodation that is not objectively “reasonable.”
E.g., Gonzagowski v. Widnall, 115 F.3d 744, 747-48 (10th Cir. 1997) (“it is unreasonable to
require an employer to create a work environment free of stress and criticism.”); Hudson v. MCI
Telecoms. Corp., 87 F.3d 1167, 1169 (10th Cir. 1996) (plaintiff “failed to present evidence from
which a reasonable jury could find that the accommodation she urges, unpaid leave of indefinite
duration, was reasonable”); Accord Cassidy v. Detroit Edison Co., 138 F.3d 629 (6th Cir. 1998)
(“proposing an accommodation and showing that accommodation is objectively reasonable” is
part of a plaintiff’s prima facie case).
In tandem with Section 12112(b)(5), the ADA definition of “qualified individual with a
disability” as “an individual with a disability who, with or without reasonable accommodation, can
perform the essential functions of the employment position that such individual holds or desires,”
42 U.S.C. § 12111(8) (emphasis added), also incorporates the concept of a “reasonable”
accommodation. Thus, an employer owes no duty to an individual who could do the job only
with an unreasonable accommodation Cthat person would not be “qualified” under the law.
Accordingly, the statutory definition of “reasonable accommodation” is a list of possibles
rather than absolutes.
The term “reasonable accommodation” may include (A) making existing facilities
used by employees readily accessible to and usable by individuals with disabilities;
and (B) job restructuring, part-time or modified work schedules, reassignment to a
vacant position, acquisition or modification of equipment or devices, appropriate
adjustment or modifications of examinations, training materials or policies, the
provision of qualified readers or interpreters, and other similar accommodations
for individuals with disabilities.
6
42 U.S.C. § 12111(9) (emphasis added). As the legislative history indicates, the list is meant to
be illustrative:
The definition includes illustrations of accommodations that may be required in
appropriate circumstances. The list is not meant to be exhaustive; rather, it is
intended to provide general guidance about the nature of the obligation.
Furthermore, the list is not meant to suggest that employers must follow all of the
actions listed in each particular case. Rather, the decision as to what reasonable
accommodation is appropriate is one which must be determined based on the
particular facts of the individual case.
H.R. Rep. No. 101-485, pt.2, at 62 (1990); S. Rep. No. 101-116, at 31 (1989). Thus, no
particular accommodation is ever individually mandated. Rather, the Section 12111(9) definition
of discrimination as including a failure to make “reasonable accommodation” controls.
B.
By Definition, The ADA Contemplates Only “Reasonable”
Accommodation
There is no absolute requirement for a private sector or local government employer to
reassign any employee as an accommodation. While it is true that “reassignment to a vacant
position” is included in the statutory list of possibles, this cannot be read to impose an absolute
duty to find a job for every disabled employee who cannot be accommodated in his or her current
position, any more than any other potential accommodation on the list is always required.
1.
The Mandatory Reassignment Obligation Applicable to Federal
Sector Employers Does Not Apply to Private Sector or Local Government
Employers
As this Court has recognized, the rules are different when the employer is the federal
government. “[F]ederal employers are charged with a greater duty to ensure the employment of
disabled workers than are federal grantees or private employers.” Woodman v. Runyon, 132 F.3d
1330, 1338 (10th Cir. 1997). In Woodman, this Court found that Section 501 of the
Rehabilitation Act of 1973,8 29 U.S.C. § 791, imposes a duty on the federal government to
8
Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791 (b), requires federal departments
and agencies to take affirmative action to hire, place and advance individuals with disabilities.
Section 504 of the Rehabilitation Act, 29 U.S.C. §794 (as amended), prohibits discrimination on
the basis of disability by federal government employers and federal grantees.
7
attempt to reassign a disabled employee.9 Id. at 1341. In so doing, however, this Court relied on
the higher standards of “accommodation” imposed on the federal government as opposed to other
employers. This Court based its finding of a duty to reassign in “the affirmative action duties
contemplated by section 501, the latter of which do not apply to private employers under the
Americans with Disabilities Act . . . .” Id. at 1344 (emphasis added). As the Court noted, “The
factors that must be considered in determining what is “reasonable” obviously differ as between
federal and private employers.” Id. at n. 14.
This dichotomy likewise is reflected in the variance between the EEOC regulations
applicable to federal employers under ' 501 and those applicable to private and local government
employers under the ADA. As this Court observed in Woodman, the EEOC’s regulations
applicable to federal sector employers, adopted in October 1992, require federal sector employers
to reassign:
Reassignment. When a nonprobationary employee becomes unable to perform the
essential functions of his or her position even with reasonable accommodation due
to a handicap, an agency shall offer to reassign the individual to a funded vacant
position located in the same commuting area and serviced by the same appointing
authority, and at the same grade or level, the essential functions of which the
individual would be able to perform with reasonable accommodation if necessary
unless the agency can demonstrate that the reassignment would impose an undue
hardship on the operation of its program.
29 C.F.R. § 1614.203(g) (1997) (emphasis added).
No similar provision appears in the EEOC’s regulations interpreting the private sector
requirements of the ADA. The EEOC’s Interpretive Guidance explaining its private sector ADA
regulations states in pertinent part that “[r]eassignment to a vacant position is also listed as a
potential reasonable accommodation. In general, reassignment should be considered only when
9
As this Court explained in Woodman, prior to the 1992 amendments to the Rehabilitation Act, a
majority of courts had held that the federal government was not required to reassign a disabled
employee as a reasonable accommodation. Woodman, 132 F.3d at 1339 n. 9. In 1992, Congress
amended the Rehabilitation Act to add “reassignment” to the list of possible accommodations.
Woodman, 132 F.3d at 1339.
8
accommodation within the individual’s current position would pose an undue hardship.” 29
C.F.R. § 1630.2(o) (Appendix).
As the panel in the instant case found, this language fairly could be read to mean that in
the EEOC’s view, any duty an employer may have even to consider reassignment of a disabled
employee arises only in the limited circumstance in which a reasonable accommodation would
allow the employee to perform the current position, but implementing the accommodation would
impose an undue hardship on the employer. See Smith, 138 F.3d at 1323. At most, the
Interpretive Guidance suggests merely a duty to consider reassignment, far short of the clear
mandate the EEOC has given to the federal sector. See also A Technical Assistance Manual on
the Employment Provisions (Title I)of the Americans with Disabilities Act (EEOC, 1992) at III24 (explaining when and for whom, reassignment should be “considered”).
In the instant case, the EEOC seeks to apply the heightened federal requirement to the
private sector.10 The Government contends that this Circuit already has done so, arguing that that
“the obligations under the Rehabilitation Act and the ADA are the same,” and relying on this
Court’s decision in Woodman. (Br. Amicus Curiae of the EEOC at 15). In fact, however, this
Court in Woodman explicitly distinguished the federal sector and private sector standards under
the Rehabilitation Act:
Cases decided under section 504 of the Rehabilitation Act are therefore applicable
to cases brought under the ADA and vice versa, except to the extent the ADA
expressly states otherwise. The same is true of section 501 in some instances.
However, as we have already discussed and will discuss further infra, section 501
of the Rehabilitation Act applies only to federal employers, imposes affirmative
10
The agency also has tried to do so in unofficial “enforcement guidance.” EEOC Enforcement
Guidance: Workers’ Compensation and the ADA, No. 915.002 at 17 (Sept. 3, 1996), reprinted in
3 EEOC Compl. Man. (BNA) No. 216, at N:2271, N:2275; EEOC Enforcement Guidance:
Psychiatric Disabilities and the Americans with Disabilities Act, No. 915.002 at 28(Mar. 25,
1997), reprinted in 3 EEOC Compl. Man. (BNA) No. 224, at N:2331, N:2340. As this court has
observed, while the EEOC’s regulations interpreting the ADA are entitled to deference,
interpretive guidance “does not carry the force of law and is not entitled to any special deference
under Chevron [U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)].”
Sutton v. United Air Lines, 130 F.3d 893, 899 n.3 (10th Cir. 1997).
9
action duties, and may therefore entail heightened duties of “reasonable
accommodation” not applicable to private employers under the ADA.
Woodman, 132 F.3d 1330, 1339 n. 8 (citation omitted).
Accordingly, as this Court already has stated, the federal government is held by the
Rehabilitation Act to at least the minimum standards applied to the private sector by the ADA, but
the reverse is not necessarily true. Instead, federal employers are held to a higher standard
because of the affirmative action provisions of Section 501 of the Rehabilitation Act, and the
heightened obligation under the “reassignment” provision is one example. Woodman, 132 F.3d at
1344.11
2.
Reassignment Is an Option Circumscribed by the
Word “Reasonable”
For non-federal employers, reassignment as a reasonable accommodation is properly
addressed as an option, subject to objective standards of reasonableness, not the virtually absolute
duty advocated by the Government in this case.12 In Benson v. Northwest Airlines, 62 F.3d 1108
(8th Cir. 1995), the Eighth Circuit identified reassignment as “another possible accommodation
under the ADA,” id. at 1114, found a fact question as to “whether reassignment [to vacant
positions Plaintiff had identified] would be a reasonable accommodation, id. (emphasis added),
and noted that “the proposed accommodations may prove unavailable or unreasonable once the
circumstances of the case are fleshed out”). Id. at 1115 (emphasis added). See also Gaul v.
Lucent Techs., 134 F.3d 576, 581 (3d Cir. 1998) (holding that plaintiff’s requested
11
Indeed, even the federal government’s obligation to reassign is not unlimited. First, the
obligation extends only to “a funded vacant position located in the same commuting area and
serviced by the same appointing authority, and at the same grade or level...” 29 C.F.R. §
1614.203(g). Second, the regulation specifically exempts any position for which “the agency has
already posted a notice or announcement seeking applications. . . .” Id. For those positions, the
individual with a disability must compete with nondisabled applicants. Id.
12
The Government recognizes few limits on the duty to reassign that it advocates: that an
employee must be qualified for the position, that an employer need not create a new position,
promote the employee, or wait indefinitely for a vacancy, that only existing employees are eligible,
and that contractual rights of other employees may take precedence. (Br. Amicus Curiae of the
EEOC at 16).
10
accommodationCtransfer away from stress-inducing coworkersCwas “unreasonable as a matter
of law.”
More specifically, courts have recognized rational limits on the circumstances under which
reassignment may be a reasonable accommodation in the non-federal context. In Dalton v.
Subaru-Isuzu Automotive, Inc., No. 96-2920, 1998 U.S. App. LEXIS 5990 (7th Cir. March 26,
1998), the Seventh Circuit concluded that an employer need not “reassign a disabled employee to
a position when such a transfer would violate a legitimate, nondiscriminatory policy of the
employer . . .” Id. at *34. The Seventh Circuit collected examples of such legitimate policies
from other Circuits, including, for example, a requirement that the individual be neither underqualified nor over-qualified for the job; choosing to prefer full-time over part-time employees for
internal transfers; an “up or out” policy under which employees who do not progress at the
expected pace are terminated, or a “non-demotion” policy under which employees who are
removed from their jobs for performance or business reasons are not entitled to a lower position.
Id. at *33-4.
Similarly, the Fifth Circuit has stated, “we do not read the ADA as requiring affirmative
action in favor of individuals with disabilities, in the sense of requiring that disabled persons be
given priority in hiring or reassignment over those who are not disabled.” Daugherty v. City of El
Paso, 56 F.3d 695, 700 (5th Cir. 1995) (holding that ADA did not require City to override
existing policy giving full-time employees priority in filling vacancies), cert. denied, 516 S. Ct.
1172 (1996).
As the Government admits, the rights of other employees also figure into whether
reassignment would be required in a particular situation. This and other Circuits have ruled that
the ADA does not require an employer to reassign a disabled employee if doing so would violate
the rights of other employees, such as those arising under a collective bargaining agreement.
Milton v. Scrivner Inc., 53 F.3d 1118, 1125 (10th Cir. 1995) (reassignment not required because
“plaintiffs’ collective bargaining agreement prohibits their transfer to any other job because
plaintiffs lack the requisite seniority.”) Eckles v. CONRAIL, 94 F.3d 1041 (7th Cir. 1996)
11
(employer not required to violate collectively-bargained seniority rights of other employees by
reassigning disabled employee), cert. denied, 117 S. Ct. 1318 (1997); Benson v. Northwest
Airlines, Inc., 62 F.3d 1108, 1114 (8th Cir. 1995) (employer not required to reassign employee to
permanent position where doing so “might implicate the rights of more senior union members”);
cf. Kralik v. Durbin, 130 F.3d 76, 83 (3d Cir. 1997) (employee’s request to be excused from
forced overtime is not reasonable accommodation because it may require employer to force
another employee, with more seniority, to work overtime, violating that person’s rights under the
collective bargaining agreement).
In contrast, the EEOC’s argument suggests that when an employer has exhausted all
reasonable possibilities for accommodating a disabled employee in his or her current position,
reassignment to a vacant position is mandatory because it is the only option left. This
construction pushes the ADA’s “reasonable accommodation” obligation beyond its boundaries.
Reassignment is subject to the “reasonableness” requirement like any other possible
accommodation on the list.
Indeed, the legislative history of the ADA’s “reassignment” provision hardly supports a
mandatory rule:
Reasonable accommodation may also include reassignment to a vacant position. If
an employee, because of disability, can no longer perform the essential functions of
the job that she or he has held, a 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.
H.R. Rep. No. 101-485, pt.2, at 63 (1990); S. Rep. No. 101-116, at 31-32 (1989).
Accordingly, this Court should recognize the significant limitations on reassignment as a
reasonable accommodation for a non-federal employer.
C.
“Considering” Reassignment Is An Accommodation In Itself
In the context of the typical private sector workforce, it is not surprising that the courts
and the agency talk in terms of “considering” reassignment as a reasonable accommodation. With
most employers, transfer to another job is not an option that is available to an employee who is
12
not performing his current job satisfactorily. On the contrary, that employee is likely to be
disciplined and ultimately terminated if the performance does not improve. 2 H.R. Series:
Policies and Practices., “Poor Job Performance,” at 141:3511 (Warren, Gorham & Lamont 1997).
Accordingly, for the typical private sector employer, allowing an employee the
opportunity to be considered for a transfer to another position when he or she cannot perform the
current job because of a disability is an alteration of the employer’s usual and customary
procedures. This special consideration, which would not be allowed absent the disability, in and
of itself is an accommodation.
Thus, helping a disabled employee search for another job, and giving him fair
consideration, may meet any obligation the employer may have had to make reasonable
accommodation, even if the employee does not find a job as a result of the search. E.g., Sharpe v.
American Tel. & Tel. Co., 66 F.3d 1045 (9th Cir. 1995) (company met its obligation by helping
plaintiff search for a position and considering him for the three positions for which he applied,
even though he was not ultimately offered any of the positions because he was not the most
qualified candidate). Thus, it is quite possible for an employer to terminate an employee with a
disability who cannot be accommodated in his or her current job, without violating the ADA, even
if the employer has vacant positions that the employee is facially “qualified” to do, because
reassigning the employee to that position would not be a reasonable accommodation. Perhaps the
employee is not the best qualified candidate for the open job. Perhaps the job by rights belongs to
someone else under a collective bargaining agreement or non-union seniority or merit system.
Perhaps the employer has some legitimate, nondiscriminatory policy that prevents the
reassignment. Perhaps reassignment would be unreasonable for some other reason.
D.
The Decision Below Should Be Affirmed Because Reassignment Was
Not A “Reasonable” Accommodation for Smith
The district court reached the correct result. The court below found that Smith never
provided Midland Brake with a release from his physician that would allow him to return to work
in any capacity. 911 F. Supp. at 1362. Indeed, while Smith’s physician completed a number of
13
“Employer’s Referral and Treatment Authorization” forms that would have allowed the doctor to
place Midland Brake on notice that Smith could return to work, he never did so. Id. On the
contrary, the information available to the Company indicated that Smith was unable to perform
any work. Thus, the only conclusion the Company could have reached was that reassignment was
not a reasonable option in this case.
CONCLUSION
For the foregoing reasons, the amici curiae Equal Employment Advisory Council and the
City and County of Denver respectfully submit that the decision below should be affirmed.
Respectfully submitted,
Daniel E. Muse
City Attorney
J. Wallace Wortham, Jr.
Ass’t City Att’y Supervisor
Sybil R. Kisken
Assistant City Attorney
1445 Cleveland Place, Rm. 303
Room 303
Denver, CO 80202
(303) 640-2931
Ann Elizabeth Reesman*
McGUINESS & WILLIAMS
1015 Fifteenth Street, N.W.
Suite 1200
Washington, D.C. 20005
(202) 789-8600
Attorneys for Amicus Curiae
EQUAL EMPLOYMENT ADVISORY
COUNCIL
Attorneys for Amicus Curiae
CITY AND COUNTY OF DENVER
June 26, 1998
*Counsel of Record
CERTIFICATE OF SERVICE
This is to certify that two true and correct copies of the Brief Amici Curiae of the Equal
Employment Advisory Council and the City and County of Denver in Support of Defendant-
14
Appellee on Rehearing en Banc were served today on counsel of record for the parties by sending
two copies of same via Federal Express, postage-prepaid, and addressed as follows:
Less E. Diehl, Esq.
Goodell, Stratton, Edmonds
& Palmer LLP
515 S. Kansas Avenue
Topeka, KS 66603-3999
James Allen Smith
Daniel M. Shea
Robert Haderlein
Smith, Currie & Hancock LLP
2600 Harris Tower
Peachtree Center
233 Peachtree Street, N.E.
Atlanta, GA 30303-1530
June 26, 1998
Mary Kathleen Babcock
Foulston & Siefkin Law Offices
700 Fourth Financial Center
Broadway at Douglas
Wichita, KS 67202
C. Gregory Stuart, Esq.
Philip B. Sklover, Esq.
Lorraine C. Davis
Equal Employment Opportunity
Commission
1801 L Street, N.W.
Washington, DC 20507
__________________________
Ann Elizabeth Reesman
MCGUINESS & WILLIAMS
1015 Fifteenth Street, N.W.
Suite 1200
Washington, D.C. 20005
Attorneys for Amicus Curiae
Equal Employment Advisory
Council
15