Disability Law Clarified

Three Denver police officers injured in the line of duty. While recuperating from their injuries, they were assigned and were successfully performed various limited-duty or light duty work within the Denver Police Department. It was ultimately determined that they were unable to perform certain functions required of all police officers, such as shoot a gun and make a forcible arrest and they had to retire.

The officers were not informed about or reassigned to other positions with in the city government even though a number of vacant positions existed. The city of Denver had a policy that prohibited disabled police officers from transferring into other vacant positions. Because of the policy, one of the officers alleged that it was "futile" to pursue employment with the city after she was forced to retire.

The officers sued the city of Denver, claiming that it violated the Americans with Disabilities Act (ADA) and a jury awarded all three officers $800,000.00 in compensatory damages.

What the Court Said - Tenth Circuit's Decision

Relying on a recent decision called the Midland Brake case, the court affirmed that Denver violated the ADA because a "qualified individual with a disability" need only to be able to perform the essential functions of the job to which he or she wishes to be reassigned, not the position he or she currently holds.

In the ruling, the court explained that if a disabled employee cannot be reasonably accommodated to his or her existing position, that employee must be reassigned to a vacant position for which he or she is qualified. The employee does not have to be reassigned to a position that would be a promotion or would constitute an undue burden on the employer. A position for the employee does not have to be created.

If the reassignment is a reasonable accommodation under all the circumstances, however, the disabled employee has a right to the reassignment. The employee is not required to compete equally with the "rest of the world" for a vacant position. Thus, a failure to reassign a disabled employee can constitute discrimination under the ADA.

The court also extended its earlier decisions by holding that the "futile gesture doctrine" applies in ADA cases. Typically, an employee must express a desire for reassignment if no reasonable accommodation is possible at the existing job. That is not the case if a disabled employee actually knows about an employer's discriminatory policy against reasonable accommodation. The court held that an employee need not engage in the "futile gesture" of requesting accommodation just to have his or her request denied.

Thanks to Colorado Employment Law Letter, Dave Powell and Catherine Cran of Holland and Hart, LLP., Vol. 9, No. 2., February 2000.