Recently the 7th Circuit Court of Appeals out of Chicago, in Brigid Ford v. Marion County Sheriff’s Office, ruled in favor of the Marion County Sheriff’s Department, holding that demoting an employee can be a reasonable accommodation under the ADA.
Plaintiff, Brigid Forbes, was a deputy sheriff in Marion County when she was involved in a car accident on duty which severely injured her hand. After a year on light duty, her doctor reported that she would never fully recover the use of that hand, always have some degree of pain and would have permanent restrictions which would prevent her from performing all the essential functions of her job as a deputy sheriff.
The Sheriff’s HR Department met with the plaintiff and offered her three choices, to resign, quit or be demoted to a job that she could perform. The demoted position paid less than she was currently making. The plaintiff chose demotion and the parties worked out reasonable accommodations for her chronic pain and related disabilities.
After taking her new position, the plaintiff filed suit claiming that a demotion is not a reasonable accommodation under the ADA as it included a pay reduction. The court noted that the Sheriff’s Department, in fact, fulfilled its ADA obligations because it offered her another position which had a vacancy when it became clear that she could never perform the essential functions of her current position. The court reiterated that sometimes a reasonable accommodation is a placement in another position where a vacancy exists and in which the employee is qualified to perform the duties, even if it pays less. The court noted that it is inconsistent with the intent of the law that by complying with its obligations, an employer could also violate the law.
Employers should note a few things from this case. First, if an employee, like the plaintiff here, is permanently restricted from performing one or more essential functions of their job, with or without reasonable accommodation, they are no longer qualified for their position. Secondly, the obligations of the ADA do not end at that first determination. The employer must look at vacant positions to determine whether the employee can perform and is qualified for those jobs, with or without reasonable accommodation. If the employee is qualified and can perform any of those jobs, the employer should offer them as a reasonable accommodation, even if they pay less, and reasonable accommodation is required to do the new job. In the present example, the plaintiff still needed additional breaks and other reasonable accommodations in her new position to minimize her chronic paid. The employer wisely went the extra step to not only look at vacant positions into which they could transfer the plaintiff but also looked at whether that new job would require reasonable accommodation as well.
