Disability, Leave & Health Management Blog : Attorneys & Lawyers for Employer Legal Protections in Businesses Nationwide

Recall the incontinent court reporter. She had a steady assignment compatible with her medical condition until the chief judge required court reporters to rotate through all courtrooms.  In the lawsuit challenging the court reporter’s termination, the court held that rotating was an essential function of the court reporter’s job and because she could not do this with or without an accommodation, she was not a qualified individual with a disability. Gratzl v. Office of the Chief Judges of the 12th, 18th, 19th and 22nd Judicial Circuits (April 7, 2010).

Now consider the bridge worker for the Illinois Department of Transportation, Miller, who developed acrophobia, or fear of heights. Bridge workers have various responsibilities, some of which are performed at significant heights. Initially, the employer allowed other members of his team to do the bridge work at heights.  Assigned to change a bulb while standing on a bridge beam wearing a lifeline, Miller had a panic attack. IDOT denied his request that he be excused from working on bridge beams and other extreme places over 20-25 feet. When discharged for an unrelated reason, Miller sued, claiming that IDOT failed to accommodate his disability. The district court granted IDOT’s motion for summary judgment, holding that working at heights above 25 feet was an essential function of Miller’s job. The Seventh Circuit reversed and remanded the case for trial. Miller v. Illinois Dep’t of Transportation (May 10, 2011).

Why did the acrophobic bridge worker fare better than the incontinent court reporter? The key is how work was assigned. The court required all court reporters to rotate through all positions and the ability to do so was an essential function. But the bridge workers worked as a team, reassigning tasks among themselves according to abilities, preferences, and limitations. The court held that a reasonable jury could conclude that while some members of the bridge crew needed to be able to work at heights in exposed or extreme positions so that that bridge crew—as a unit—could do its job, each member of the bridge crew did not have to be able to do every task.

The message from this case is clear: if an employer believes that an employee’s ability to do all of the tasks involved in a position is essential, the employer should communicate this requirement, and then enforce it.  Conversely, if employees work as a team, it may not be essential that each member of the team be able to perform each assignment.

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Recall the incontinent court reporter, hired as a control room specialist, a position compatible with her medical condition, but whose job changed when the chief judge decided to evenly distribute the workload, and required all court reporters to rotate through all courtrooms. In ADA parlance, the court changed the essential functions of the court reporter’s job. The court reporter did not claim that the court’s decision to reorganize had anything to do with her disability. When she rejected the accommodations offered her, the court terminated her employment, The Seventh Circuit affirmed summary judgment for the employer, holding that she was not a qualified individual with a disability because she was “unable to sit in the courtroom during proceedings without disrupting court.” The Seventh Circuit rejected her “circular” argument that was qualified because she was qualified for her previous job, which did not require rotating.

An employer’s ability to change the essential functions of an employee’s job “seems like a pretty big loophole [in the ADA],” according to the Workplace Prof Blog, commenting on this same case in a piece entitled "Reorganizing Away the Duty of Reasonable Accommodation." . The Prof opines that “[a]fter 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!”

So is the employer’s right to reorganize and change employees’ essential functions for reasons unrelated to any employee’s disability a “loophole” in the ADA? Webster defines “loophole” as “an ambiguity or omission in the text through which the intent of a statute, contract, or obligation may be evaded.” I vote “no” because the ADA was never intended to limit an employer’s ability to reorganize its operation for reasons unrelated to an employee’s disability. Despite this, the Workplace Prof Blog notes that “there seems something troubling” about the Seventh Circuit’s “endorsement of what is in effect, if not intent, an end run around the duty of accommodation.” “Something troubling” about an employer’s exercising a right for legitimate non-discriminatory reasons which affects all employees in the job description? A fundamental principle underlying our anti-discrimination laws is that employers must make decisions based on legitimate non-discriminatory reasons. To hold otherwise would require Webster to revise the definition of “discrimination.”

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 Many reasonable accommodation cases are resolved in court but a court is not usually the defendant. But such was the case when a court reporter sued the Office of the Chief Judges of various Illinois circuit courts for failing to accommodate her incontinence. 

In Gratzl v Office of the Chief Judges of the 12^th, 18^th, 19^th and 22^nd Judicial Circuits, decided on April 7, 2010, the plaintiff had suffered from incontinence since approximately 1991. When the OCJ hired her in 2001, they agreed in writing that she would work in the control room only, a position which was compatible with her medical condition. Five years later, the chief judge decided that, to evenly distribute the workload, all court reporters must rotate through all courtrooms, including the control room.

The plaintiff asked that she be allowed to continue working in the control room only as an accommodation. Her doctor told the court that she needed access to a restroom on a moment’s notice. In response, the court proposed that she not be assigned to any courtrooms in which a trial was scheduled or to juvenile courtrooms, which were farther from the restrooms, and that she use a “high sign” to signal the judge that she needed a break. Plaintiff rejected all of these  offers and continued to request to work in the control room only, arguing that such an assignment was feasible because she had had it previously, that other courts have specialists assigned to the control room only, and that her using the “high sign” would be embarrassing.

The Seventh Circuit affirmed summary judgment for the OCJ on plaintiff’s ADA and Rehabilitation Act claims, holding that she was not a qualified individual with a disability because she was “unable to sit in the courtroom during proceedings without disrupting court”  and that her “control room only” request was not a request for a reasonable accommodation.  The court rejected the plaintiff’s “circular” argument that she is qualified for her current job because she was qualified for her previous job with different essential functions. The court said an employer need not maintain a position or structure that, for legitimate reasons, it no longer believes is appropriate and may change an employee’s essential functions.

This case illustrates numerous “reasonable accommodation” principles employers must master.  Presented with a request for a reasonable accommodation, the court engaged appropriately in the “interactive dialogue” to explore options, and offered a series of accommodations which would have enabled plaintiff to perform her responsibilities despite her medical condition. A plaintiff who rejects such accommodations and merely insists on her preferred accommodation is not a qualified individual with a disability and loses the protection of the ADA.

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