Second Circuit Requires Disabilities Act Plaintiff to Demonstrate the Existence of a Reasonable Accommodation
The Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12101 et seq. prohibits discrimination in the hiring, advancement or discharge of a "qualified individual with a disability." A "qualified individual" is one "with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position." On March 3, 2000, the U.S. Court of Appeals for the Second Circuit in New York affirmed the district court's judgment for the employer in a disability discrimination case because the plaintiff, who sought a transfer to a different position as an accommodation of his disability, failed to meet his burden of demonstrating that a vacancy existed in the position he sought. Jackan v. New York State Department of Labor, No. 98-9589, 2000 WL 241648 (2d Cir. March 3, 2000).
Facts of the Case
The New York State Department of Labor ("DOL") hired plaintiff as a Labor Services Representative in 1981. Plaintiff satisfactorily performed this desk job with minor accommodations for his persistent eye condition, arm and leg problems, and back injury. In 1993, plaintiff requested a transfer to a field position, Safety and Health Inspector in the Asbestos Control Bureau. Plaintiff successfully completed the required medical and physical examinations and was granted the position. After spinal surgery in 1995, causing severe neck and back complications and a resultant absence from work, plaintiff requested a transfer to a desk job. Due to the lack of vacancies and provisions of New York civil service laws which bar transfers to positions for which "preferred lists" or "reemployment rosters" exist, plaintiff's transfer requests were denied. Plaintiff's absence from work continued, ultimately resulting in his termination.
After a bench trial, the district court ruled that the plaintiff was not a qualified individual with a disability and dismissed his ADA claim. First, plaintiff failed to demonstrate that an accommodation existed which would permit him to perform the essential function of the field job, because the purpose and function of the job required essential tasks that he was unable to perform. Second, plaintiff was not entitled to a transfer to a desk job because he did not show the existence of a vacancy, and because civil service rules prohibited the transfer. The court placed the burden on the plaintiff to demonstrate that reassignment was an available option.
Appellate Court Decision
On the plaintiff's appeal, the Second Circuit agreed with the district court that the plaintiff failed to meet his burden of proof because he was unable to show the existence of vacant positions to which he could be transferred, therefore, rendering him ineligible for protection under the ADA. The court used a two-step burden shifting process in order to determine whether the employer's failure to accommodate constituted a violation of the ADA. First, the plaintiff must bear the burden of proving that "an accommodation exists that permits him or her to perform the job's essential functions. Next, the burden shifts to the employer to demonstrate that the proposed accommodation (or others) are not reasonable in all of the circumstances. The court described the plaintiff's obligation of demonstrating an effective accommodation as including identification of the existence and availability of the proposed accommodation, not mere speculation of a possible solution. In a case where the employee requests a transfer as an accommodation, therefore, he or she must be able to show that a vacancy existed at the time. Once plaintiff has sufficiently met this burden, the employer will be able to avoid liability only if it demonstrates that the proposed transfer was nevertheless unreasonable.
In the Jackan case, the plaintiff failed to fulfill his initial burden of proof. Jackan claimed that his employer's failure to transfer him to a desk job violated the ADA, but was unable to establish the existence of a vacancy. Therefore, the court found in favor of the employer without reaching the issue of reasonableness.
Jackan presents employees seeking protection under the ADA with a heightened burden of demonstrating that a specific accommodation exists, rather than mere speculation as to possible options. In the case of requests for a job transfer, this threshold burden requires a showing that an appropriate vacancy exists; a request that the employer create a position where none exists will not suffice. If an employee cannot meet this burden, the court will be required to find for the employer, without reaching the question of the reasonableness of plaintiff's proposed transfer.