Reorganizing Away the Duty of Reasonable Accommodation?

 Under the ADA, a qualified individual whose disability required easy access to restrooms might typically have to be accommodated by assignments to places with such access.  For example, a court reporter suffering from incontinence might have to be accommodated by giving her work that could be performed without disrupting court sessions, even if that meant assigning other reporters more frequently to live courtrooms.

But suppose the employer simply eliminates the job in question, creating another job description whose duties include rotating through numerous places, some of which have no convenient access to a bathroom?  Is rotation an essential function of the job such that the formerly qualified person is now not qualified, and therefore need not be accommodated?

That was the situation in Gratzl v. Office of Chief Judges, 601 F.3d 674 (7th Cir. 2010). Illinois eliminated plaintiff’s “specialist job,” in which she was assigned to a particular site; instead, it merged all of the reporters in one "new" position to balance the workload among them. There was no reason to believe that there was any discriminatory intent in the reorganization, but in Gratzl’s new position, she was required to work in live courtrooms, leading her to request reasonable accommodations for her incontinence problem. Although the employer suggested a number of accommodations, Gratzl rejected them all and demanded to be reinstated to her former position. That made her a pretty unsympathetic plaintiff, and the court in fact criticized her for rejecting the proposed accommodations and being responsible for "terminating the interactive process and hence not entitled to relief." 

But the opinion's main thrust is not merely that the employer had provided reasonable accommodations and plaintiff had no right to her preferred one.  Rather, the Seventh Circuit suggested that her employer had an unlimited ability to change Gratzl’s job functions so long as it was not discriminatorily motivated. It did not need to maintain her position when it no longer found it appropriate, and it could change her job description whenever and however it wanted without regard to her disability. One moral of the story: so long as there's not discriminatory intent, an employer has a free pass to redefine the essential functions of  a job, even if that means the individual will not be able to perform the new tasks.

Nor is this the first time a court has approved a reorganization that eliminated what might have been an irksome duty of accommodation. The Tenth Circuit, in Hennagir v. Utah Dep’t of Corr.,587 F.3d 1255 (10th Cir. 2009), came to a similar conclusion, holding that, for ADA purposes, a job’s essential functions should be viewed from the date the tasks were assigned to the employee, not from the employee’s hire date. Part of the problem might be the 1992 EEOC ADA Technical Assistance Manual, which explicitly stated “The ADA does not limit an employer's ability to establish or change the content, nature, or functions of a job.”

This seems like a pretty big loophole, especially given the difficulty of showing intent to discriminate, and, after the ADAAA’s expansion of the definition of “disabled,” employers will be looking for more ways to avoid the accommodation duty. This one seems tailor-made:  change job descriptions and thus, essentially, eliminate disabled employees from any jobs they want – and they won’t be held liable for disability discrimination!

Granted, employers need to make decisions to effectively run their companies and sometimes employees get the short end of the stick. And arguably the decision is consistent with the ADA's recognition that, to be qualified, an employee must be able to perform the essential functions of the job, with or without accommodation. Still, there seems something troubling about Gratzl 'sendorsement of what is, in effect if not intent, an end run around the duty of accommodation.

Thanks to Caitlin Petry

CAS