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Ruling may send ADA fight to Supreme Court

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The issue of whether the Americans with Disabilities Act requires employers to offer disabled employees reassignment to another job if they can no longer do their current job, without having to compete with possibly more qualified workers, is likely to be heard by the U.S. Supreme Court following a recent appeals court ruling, experts say.

The 11th U.S. Circuit Court of Appeals in Atlanta held in December in EEOC v. St. Joseph’s Hospital Inc. that the ADA “does not automatically mandate reassignment without competition.” The ruling conflicts with other appellate court decisions, which makes it an issue likely to be heard by the high court.

Experts say this issue arises frequently, particularly among big employers.

“A large corporation with a thousand or more employees is going to run into this fairly regularly,” said Andrew S. Hament, a partner with FordHarrison L.L.P. in Melbourne, Florida.

The current situation of conflicting appellate court rulings on the issue means employers’ obligations will vary depending on the circuit in which they operate.

“This has been a thorny question that has been percolating in the lower courts for years, and is maybe one of the last big ADA questions that hasn’t been resolved,” said Richard R. Meneghello, a partner with Fisher & Phillips L.L.P. in Portland, Oregon.

The 11th Circuit ruling was “very well-reasoned and very practical in its approach,” said Tasos C. Paindiris, a principal with Jackson Lewis L.L.P. in Orlando, Florida. “Basically, the court said it wouldn’t be proper to require an employer to pass over a better-qualified candidate in favor of a lesser-qualified one just because the lesser-qualified one has a disability.”

The St. Joseph’s ruling’s significance is that, “contrary to the EEOC’s position,” it says the ADA “was never intended to require preferential treatment for individuals with disabilities. It was intended to provide them equal opportunity,” Mr. Hament said.

The 11th Circuit affirmed the ADA does not mandate that employers offer vacant positions to the disabled. Rather, it says a “reasonable accommodation” may include the opportunity for disabled persons “to openly compete for an open position,” said Nicole Eichberger, a partner with Proskauer Rose L.L.P. in New Orleans.

However, “When Congress said that reassignment was an accommodation, then that needed to be taken seriously,” said plaintiff attorney Paul W. Mollica, of counsel at law firm Outten & Golden L.L.P. in Chicago.

“An employer couldn’t just say, ‘Well, there’s somebody better qualified.’ There needs to be a more searching analysis of whether the reassignment would be an appropriate accommodation,” Mr. Mollica said.

“Otherwise, the ADA isn’t accomplishing its purpose of integrating disabled Americans into the workforce. It just becomes one more barrier to integration of the disabled, where the employer can cite a fairly subjective standard to bar them from an open position,” he said.

Having conflicting appellate court rulings means the issue will eventually be considered by the Supreme Court, if not with the St. Joseph’s case then with another, experts say.

“At some point, it will have to be taken up. There’s just too much of a split” on the issue, said Katherine Dudley Helms, office managing shareholder with Ogletree, Deakins, Nash, Smoak & Stewart P.C. in Columbia, South Carolina.

Some observers believe that given the likely appointment of a conservative-oriented justice to the still-vacant ninth spot on the high court, a pro-employer ruling is likely.

If, as expected, the Supreme Court reflects a more conservative bent, “I could really see them coming down in the employer’s favor,” Mr. Meneghello said.

Mr. Hament agreed. “In this case, the EEOC went too far. I think that there’s a very good chance” the high court would uphold the 11th Circuit ruling, he said.

Predicting how the Supreme Court will rule, however, “is a dangerous game,” said William D. Goren, a Decatur, Georgiabased attorney and ADA consultant.

Meanwhile, the 11th Circuit ruling will be influential in other circuits, Mr. Paindiris said. “There’s a lot of good quotes you can get out of this case for a summary judgment motion,” he said.