Labor & Employment Law

7th Circuit Holds No Duty To Create a Job Under The ADA

7th Circuit Holds No Duty To Create a Job Under The ADA
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/

Reproduced with permission. Copyright © 2008, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Dargis v. Sheahan, ___F.3d___(7th Cir. May 16, 2008) is an important ADA case that, once again, demonstrates how narrow ADA protections really are. In Dargis, a correction officer suffered a stroke. He admitted that he could not perform traditional correction officer duties, but asserted that he could perform other duties that did not involve direct inmate contact. Stated another way, he claimed he was qualified to have a desk job.

The court rejected this argument for essentially two reasons. First, it accepted the employer's argument that was an essential function of a correction officer?s job to be able to perform a wide range of functions; and second, the employer had no duty to create a job for the plaintiff. As the court reasoned:

This necessary ability to respond to emergencies was the exact reason provided by Lyles for why Cook County correctional officers must be able to rotate through all positions. Like the Illinois Department of Corrections in Miller, it is the position of the Sheriff?s Office that the ability to rotate through all positions, including the majority of them that involve inmate contact, is a prerequisite for someone being qualified to perform the essential functions of a correctional officer.

Additionally, Dargis did not request placement in another position in the Sheriff?s Office, but rather sought accommodation in order to retain his position as a correctional officer. Because the Sheriff?s Office need not ?manufacture a job that will enable the disabled worker to work despite his disability,? Hansen v. Henderson, 233 F.3d 521, 523 (7th Cir. 2000), Dargis? inability to rotate through the various positions of a correctional officer means that he cannot perform the essential functions of that job. Carving out a job that included very few of the duties all other correctional officers were expected to perform would have the effect of creating a new position for an employee who would not be otherwise qualified.

The 7th Circuit decision is technically correct. However, it demonstrates the limits of the ADA. We are all human and we will all suffer from a disability at some point. If there is a job that we can realistically do, then why should an employer not be required to transfer the employee? Wouldn't that better serve the public interest and further the goal of equal opportunity??

Mitchell H. Rubinstein

Full post as published by New York Public Personnel Law on May 28, 2008 (boomark / email).