United States: Court: Employees Seeking Accommodation Must Compete For Reassignment

Last Updated: January 5 2017
Article by Richard R. Meneghello

The 11th Circuit Court of Appeals ruled that a disabled worker forced to leave her position because of her physical impairment must compete for vacant jobs when seeking reassignment, handing a victory to her former employer. By concluding that employers have no obligation to provide preferential treatment to individuals with disabilities when attempting to accommodate them via reassignment, the court decision runs in direct conflict with various other circuits – and the EEOC – which have ruled otherwise. Unless and until the Supreme Court steps in to resolve the circuit split, employers must be sure to carefully navigate the various standards that exist across the country when accommodating their employees.

Here are three things you need to know about the 11th Circuit's decision in EEOC v. St. Joseph's Hospital (December 7, 2016).

1. Jury Concluded That Employer Acted In Good Faith

The case involved a nurse, Leokadia Bryk, who worked in the psychiatric ward of St. Joseph's Hospital in Tampa, Florida. In 2009, after being diagnosed with arthritis and undergoing hip replacement surgery, Bryk began to use a cane to alleviate her constant back pain. Eventually her managers became concerned that a patient could dispossess Bryk of the cane and use it as a weapon. In 2011, her supervisor informed her that she could no longer use the cane in the psychiatric ward because it posed a safety risk to herself and others.

This meant that she was deemed unqualified for her position at the hospital, although the human resources team worked with her to identify possible reasonable accommodations that would allow her to continue to work at St. Joseph's. Upon concluding that the only possible accommodation that might work was reassignment to a vacant, the hospital informed her that she had a 30-day period to identify and apply for other positions. The human resources team informed her that she would be allowed to compete with other internal applicants, but would receive no preferential treatment.

The evidence revealed that over 700 available jobs existed at the hospital during this time period, and Bryk applied for seven of those positions. However, she was not even offered an interview for any of the positions, as she was not determined to be qualified enough to merit the next step in the hiring process. For example, she applied for an Educational Specialist position, but she was deemed not to have enough education experience. The person eventually hired for the job had previously worked as a teacher for several years. Also, she applied for a Home Health Clinician position, which would have required her to care for patients in their homes following discharge from the hospital. She admittedly had limited experience performing post-surgery wound care (because her main experience was in the narrow field of psychiatry), and thus was not the best-qualified candidate.

Therefore, the hospital terminated her employment in November 2011, and the Equal Employment Opportunity Commission (EEOC) filed an Americans with Disabilities Act (ADA) lawsuit against St. Joseph's on her behalf in 2013. The lawsuit alleged, among other things, that the hospital violated the ADA by not reassigning Bryk to a vacant position without requiring her to compete with other applicants for those jobs.

The case eventually went to a federal jury trial. Although the jury agreed that the hospital failed to provide a reasonable accommodation, it also concluded that the hospital sufficiently proved that it made good faith efforts to accommodate Bryk. With that, the jury ruled in the hospital's favor.

2. Appeals Court Ruled That "Affirmative Action" Is Not Required

The EEOC filed an appeal with the 11th Circuit Court of Appeals (which oversees cases arising out of Florida, Georgia, and Alabama), and earlier this month the court affirmed the ruling in favor of the employer. The appeals court said that it agreed with the lower court that "the ADA does not require reassignment without competition for, or preferential treatment of, the disabled."

The court first noted that the language of the statute itself does not require employers to take such steps. The ADA offers a non-exhaustive list of accommodations that "may" be reasonable, including reassignment to a vacant position. The court pointed out that the statute does not say that reassignment is "always" reasonable. "Had Congress understood the ADA to mandate reassignment," the court said, "it could have easily used mandatory language. That it did not do so at least suggests that it did not intend reassignment to be required in all circumstances."

The court then pointed out that the Supreme Court offered a framework for determining whether a job reassignment was reasonable (although under different circumstances). According to the SCOTUS, reassignments are only required under the ADA if they are "reasonable in the run of cases." And according to the 11th Circuit, requiring reassignment to an employee who is not best qualified is not reasonable. As the court stated:

As things generally run, employers operate their businesses for profit, which requires efficiency and good performance. Passing over the best-qualified job applicants in favor of less-qualified ones is not a reasonable way to promote efficiency or good performance. In the case of hospitals, which is this case, the well-being and even the lives of patients can depend on having the best-qualified personnel. Undermining a hospital's best-qualified hiring or transfer policy imposes substantial costs on the hospital and potentially on patients.

For these reasons, the 11th Circuit affirmed the decision of the lower court and preserved the employer's victory.

3. Warning: Other Courts Disagree

While this decision is a complete victory for the employer in this case, and serves as a solid ruling for employers in Florida, Georgia, and Alabama, it is not a cause for celebration across the country. There still remains a large swath of employers in various jurisdictions who face competing obligations under the law.

The 11th Circuit's decision noted that its ruling was in line with cases from the 5th Circuit (Texas, Louisiana, and Mississippi) and the 8th Circuit (Missouri, Minnesota, Arkansas, Iowa, Nebraska, North Dakota, and South Dakota). However, the EEOC contends that several other circuits disagree and mandate the alternate view, requiring reassignment without competition despite any best-qualified hiring party. It points to decisions from the 7th Circuit (Illinois, Indiana, and Wisconsin), 10th Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming), and the D.C. Circuit.  

Therefore, employers should consult with their legal counsel before finalizing any interactive process that includes reassignment as a possible accommodation to determine the proper current standard in your business location. While it is possible that the Supreme Court could took notice of the widening split among the circuits and agree to accept a reassignment case to settle the debate once and for all, until that day occurs, there exists no unifying and consistent standard that would make life more predictable for employers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Richard R. Meneghello
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.