The EEOC has filed suit against Miami-based Vitas Healthcare alleging it violated the ADA when it made a disabled employee compete for a vacant position. The case raises a critical question that could carry it all the way to the Supreme Court.
Eveline Chery’s job required her to drive to various locations, which aggravated her hypertension. She asked to be reassigned to a vacant position without so much driving.
Vitas agreed to allow Chery to compete with other applicants for the position, but said it would not give her preference for the opening. The EEOC’s lawsuit claims that’s illegal disability discrimination.
The case mirrors Huber v. Wal-Mart, a case that was settled privately before the Supreme Court could decide it.
In that case, the 8th Circuit Court of Appeals ruled that employers may allow competition for open positions when a disabled employee is involved without violating the ADA. But other federal appeals courts have ruled that employers in this situation must place the disabled employee in the open position.
Because the Huber case was settled, the Supreme Court never resolved the split. The 11th Circuit—which covers Florida—has never addressed the issue.
In a statement on the lawsuit, the EEOC said the ADA Amendments Act (ADAAA) of 2008 requires employers to accommodate employees by reassigning them to open positions. However, documents on EEOC’s web site state that the ADAAA made no changes to the accommodation process other than stating that employees who were merely “regarded as” disabled are not entitled to accommodation.
This could be the case that ultimately goes to the Supreme Court.