An unreasonable accommodation: Americans with Disabilities Act does not require employers to create new part time position
By: Lily Crespo Esq.
Quick takeaway: The 4th circuit decided “job sharing” a single full-time position DID NOT qualify as a reasonable accommodation. If the job share in question did not exist at the time it was proposed as an accommodation, the ADA does not require the employer to create the new position to accommodate a disabled employee.
The ruling: A U.S. appeals court on Tuesday ruled that Sanofi-Aventis U.S. LLC was not required to allow a pharmaceutical sales representative with an autoimmune disease to share her job duties with a coworker in order to accommodate her disability.
What happened: A unanimous three-judge panel of the 4th U.S. Circuit Court of Appeals said that because the job-sharing arrangement proposed by Janet Perdue did not exist at the time, it did not amount to a reassignment to a vacant position that is required under the Americans with Disabilities Act.
- A unanimous three-judge panel of the 4th U.S. Circuit Court of Appeals said that because the job-sharing arrangement proposed by Janet Perdue did not exist at the time, it did not amount to a reassignment to a vacant position that is required under the Americans with Disabilities Act.
- Perdue was backed by the Equal Employment Opportunity Commission, which in an amicus brief last year said the case should have survived summary judgment because a jury could have found that job sharing was a “feasible, plausible, and effective” way to accommodate her medical condition.
- Perdue, who was originally based in South Carolina, was hired by Sanofi in 2001 and in 2013 was diagnosed with an autoimmune disease and underwent surgery to remove a brain tumor, which affected her vision and ability to walk.
- When Perdue returned to work, Sanofi allowed her to split her job duties with another employee. She eventually returned to a fulltime position, and in 2017 was transferred to Asheville, North Carolina.
- Perdue began experiencing pain and stiffness related to her medical condition shortly after the transfer, and requested another job-sharing arrangement. Sanofi denied the proposal, citing concerns about the other employee and tensions within the company after a round of layoffs, according to court filings.
- Sanofi then claimed that no reasonable accommodation would allow Perdue to perform the essential functions of her job, and fired her.
- Perdue in a 2018 lawsuit in Asheville federal court accused Sanofi of failing to accommodate her disability in violation of the ADA.
- Both sides moved for summary judgment and U.S. District Judge Martin Reidinger in 2019 sided with the company. The ADA requires employers to reassign workers to vacant positions when possible, the judge said, but the job share proposed by Perdue was not a “vacancy” because it never existed in the first place.
The ADA does not require employers to create entirely new positions to accommodate employees. In this case, a part-time job-share position did not exist unless and until the Area Business Leader approved an employee’s proposal. Such a proposal asked the employer to create a new part-time position. And that was an accommodation the ADA did not mandate. So the employer prevailed here.
The case is Perdue v. Sanofi-Aventis U.S. LLC, 4th U.S. Circuit Court of Appeals, No. 19-2094.
As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Kevin, Megan, Beth, and Lily by email or at 406-542-1300 to discuss these issues.