Employment Law: Recent legal precedents impact employment law

Over the last two years, decisions from the United States Supreme Court and other courts have dramatically impacted the employment law landscape.

First, an employer's liability under sexual harassment was broadened in 1998.

Last summer, the Supreme Court narrowed the scope of the Americans With Disabilities Act (ADA), according to some commentators. In Sutton v. United Airlines, Inc., the Supreme Court determined that mitigating measures should be considered in evaluating a disability. In that case, two employees with vision impairments were not considered to be disabled because, with glasses or contact lenses, both employees had vision of 20/20 or better.

In another decision, the Supreme Court concluded that an employee with high blood pressure was not disabled because his condition was controlled with proper medication.

Therefore, the ADA now requires an evaluation of an individual's conditions or impairments in their corrected states to determine if that individual is disabled.

The Eighth Circuit Court of Appeals, which includes Missouri, has also wrestled with the evolving ADA law. On June 7, the court discussed an employer's duty to reassign disabled employees to vacant jobs within the company.

In Cravens v. Blue Cross & Blue Shield of Kansas City, the employer argued that Ms. Cravens was not a "qualified individual with a disability" since the employer could not accommodate her with respect to her current position.

Therefore, the employer argued it had no obligation to reassign her to another position. Cravens was an 18-year employee of Blue Cross. Her last position was as a senior operations specialist, which required her to spend a substantial part of her time typing information into her employer's computer system. In 1995, Cravens was diagnosed with carpal tunnel syndrome and permanently restricted to no keyboard activity.

Subsequently, she met with her supervisor and a human resource representative to discuss her employment alternatives. Her employer told her she had 10 to 12 weeks to find another position through the company's internal application process, which was available to all employees.

Although Cravens requested assistance from the company, she was eventually terminated in 1995. In overturning a decision in favor of the employer, the court made several important findings about accommodations under the ADA.

The court noted a "qualified individual with disability" includes a disabled employee who cannot do his or her current job, but who desires and can perform, with or without reasonable accommodation, the essential functions of a vacant job within the company to which he or she could be reassigned. However, the disabled employee must be seeking an existing position within the company. The employer is not required to create a new position as an accommodation.

Further, an employer is not required to "bump" another employee in order to reassign a disabled employee to that position. Finally, promotion is not required; the employer can reassign an employee to a lower grade and lower paid position if that employee cannot be accommodated in the current position and a comparable position is not available.

The court further stated, though, that an employer is required to engage in an interactive process with the employee concerning a possible reassignment. Simply directing the employee to an internal application procedure was not sufficient.

The court emphasized that although an employee is required to show that he or she can perform the essential function of an open position, an employee does not have the burden of identifying open positions without the employer's assistance.

The employer has some duty to assist the employee in order to identify vacant positions. Interestingly, the court did not cite the Equal Employment Opportunity Commission's Enforcement Guidance concerning reasonable accommodations under the ADA issued in March 1999, which supports the court's decision.

Despite the recent guidance from the courts, many practical questions still remain unresolved when interpreting the various federal employment statutes.

For example, as one commentator recently noted in the Missouri Lawyer's Weekly, after reviewing the Cravens case, is an employer required to identify vacant positions at its other locations or facilities? Also, is a qualified, disabled employee to be automatically awarded a vacant position over other applicants?

(Bob Lawson Jr. practices labor and employment law representing management with the law firm of Blackwell Sanders Peper Martin LLP in Springfield.)