Does Reasonable Accommodation Include a Promotion? Not Necessarily

July 5, 2017

A recent decision from the U.S. Court of Appeals for the 7th Circuit (whose rulings apply to all Wisconsin employers) addressed the challenge of accommodating an employee whose disability appears to conflict with a fundamental element of the employer’s operations. The decision is a reminder that reasonable accommodations don’t include a promotion for which the employee isn’t the most qualified candidate.

Case Background

Sherlyn Brown was an assistant principal in the Milwaukee public school system. In 2006, she began experiencing severe knee pain while performing her job duties. As a result of her knee injury, her doctor recommended that she be moved to a job with limited mobility requirements. The school district accommodated her disability by moving her and excusing her from breaking up fights and physically intervening with students. She subsequently underwent knee replacement surgery.

In 2009, Brown reinjured her knee while she was restraining an unruly student and had to undergo another surgery. As a result of her second knee injury, her doctor stated that Brown “should not be in the vicinity of potentially unruly students.” Ultimately, this lawsuit arose from the school district’s attempts to accommodate her work limitations.

What Role Did the ADA Play?

The Americans with Disabilities Act (ADA) requires employers to make reasonable accommodations that will allow qualified individuals with disabilities to perform the essential functions of their jobs. The ADA requires that the employer and the disabled worker engage in an “interactive process” when she requests an accommodation. In practice, that means both parties have to engage in back-and-forth communication to develop a reasonable way to allow the employee to perform her job.

Reasonable accommodation includes reassigning an employee to vacant positions for which she is qualified, and the employee doesn’t have to be the most qualified candidate. However, the ADA doesn’t require employers to promote employees to accommodate them.

The school district tried to accommodate Brown with a different job, but she was disqualified from most open positions because of her doctor’s restrictions. Not surprisingly, most of the school district’s open positions for which she was qualified required her to be in the vicinity of potentially unruly students. The school district sought clarification of her limitations, and each time, it either didn’t receive any clarification or was again told that she couldn’t be near students.

After Brown’s three-year leave of absence ended and it still couldn’t find a position for her, the school district terminated her employment. In response, she filed suit, alleging the school district failed to provide a reasonable accommodation because it didn’t retain her as Title I coordinator or employ her in one of four other vacant positions.

How the Courts Responded

After a lower court dismissed Brown’s complaint, the case came before the 7th Circuit. The court of appeals upheld the dismissal, holding that all but one of the positions that Brown believed were a reasonable accommodation required her to be in the presence of students.

The 7th Circuit agreed with the school district’s determination that because all students are potentially unruly, all of its open positions conflicted with the broad restriction on Brown’s job functions. In so holding, the 7th Circuit analogized that “lawn maintenance cannot be performed indoors[, and] a jockey must often work atop a horse.” The court went on to explain that if Brown was less limited than her doctor indicated, it was her responsibility to alert the school district.

Moreover, the 7th Circuit held that the school district wasn’t required to give Brown the final position she argued she should have been given because it was a promotion. Although she was qualified for the job, she wasn’t the most qualified candidate. Accordingly, the ADA didn’t require the school district to give her the promotion as a reasonable accommodation.

The 7th Circuit ended its opinion by observing that this is an unusual case and its holding is narrow. The court went on to explain that the outcome might have been different had the school district determined on its own that Brown couldn’t be near students, failed to communicate its understanding of her restrictions, or failed to seek clarification of that understanding when it received contradictory information. Brown v. Milwaukee Bd. of Sch. Dirs., No. 16-1791 (7th Cir., May 4, 2017).

Bottom Line

This case illustrates some crucial points to remember when you’re discussing reasonable accommodations with an employee. First, you aren’t required to offer a promotion as an accommodation if the employee isn’t the most qualified candidate. Second, it’s essential to remain engaged and communicate clearly with the employee during the disability accommodation process. A breakdown in the interactive process dramatically increases the likelihood of frustration—and litigation.

This article, slightly modified to note recent updates, was featured in the June 2017 issue of the Wisconsin Employment Law Letter, which is co-edited by Axley Brynelson Attorneys Saul Glazer and Michael Modl and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.

For more information about "Does Reasonable Accommodation Include a Promotion? Not Necessarily," contact Jeremy R. Lange at jlange@axley.com or 608.283.6728.