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Analysis Law and Policy

We Don’t Need a Government That Sides With Businesses Over People With Disabilities

Lisa Needham

But right now, it's the government we have.

Things continue to get worse for vulnerable communities under Donald Trump’s Department of Justice (DOJ). Last month, the DOJ dropped an appeal in a disability rights case that could have had far-reaching and beneficial consequences related to workplace accommodations for individuals with disabilities.

This isn’t the first time that the DOJ has reversed course on Obama-era cases. It was clear when President Donald Trump tapped Jeff Sessions to be attorney general that Sessions would be terrible for vulnerable communities, such as LGBTQ individuals, immigrants, and people with disabilities. Sessions signaled this right away by making a 2018 budget request for the DOJ’s civil rights division that cuts personnel and stops prioritizing things like investigations into police misconduct. Under Sessions, the DOJ has also stopped standing up for the rights of transgender students, and it has decided to go after colleges and universities that don’t admit enough white students. It has also sided with Ohio in the state’s attempts to aggressively purge voters from the rolls.

In this latest about-face, the DOJ asked the court to dismiss the case of United States v. Woody—an especially odd move, considering the United States is the party that brought the case. In 2016, the government filed the lawsuit on behalf of Emily Hall, a deputy sheriff in Richmond, Virginia. Hall developed a severe heart condition that required her to get a pacemaker and internal defibrillator and rendered her unable to perform the normal duties of a deputy sheriff, because they were too physically strenuous. After the sheriff’s office terminated her employment following her diagnosis, the United States brought suit on her behalf. A federal district court in Virginia dismissed the case last year, granting judgment for the sheriff. The DOJ initially appealed the case, but has now dropped that appeal.

Under the Americans with Disabilities Act (ADA), employers like the sheriff’s office have to provide “reasonable accommodation” to employees with a disability. This includes reassignment to a vacant job—if one is available and the employee is qualified—if the employee’s disability means they can no longer perform the core functions of the job they currently hold.

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In this case, Hall properly informed her employer that she couldn’t perform the essential functions of a deputy sheriff and requested light duty, basically a modified version of her job that would accommodate her needs. The sheriff’s office declined, so she eventually asked to be transferred to a civilian position. When a payroll technician position became vacant, Hall applied. She had significant relevant experience: She’d been an account manager in the private sector responsible for payroll and scheduling, as well as a convenience store manager, responsible for computing payroll. She also had a two-year degree and the appropriate computer skills, such as Microsoft Word and Excel, and she had been employed by the sheriff’s office for nine years.

However, while Hall was qualified for the position, she wasn’t, according to the sheriff’s office, the most qualified candidate. The district court agreed with that argument, finding that the sheriff’s office was not required, under the ADA, to hire Hall.

The dismissal of the case highlighted a key ADA issue that remains open to interpretation: When an employer is required to make reasonable accommodations for an individual with a disability, does that include reassigning them to a vacant position they are qualified for, even if there are more qualified applicants for that position? Existing cases on this generally only say the employer doesn’t have to disrupt their “seniority system.” In other words, an individual with a disability can’t “jump the queue” ahead of other qualified employees to get to a vacant spot. However, that doesn’t actually address the question here: what if you have an existing employee (who is perfectly qualified) and a new position (so there are no seniority concerns)?

This is an important question that has largely gone unaddressed by courts, including the Fourth Circuit, where the now-dismissed appeal was to have taken place. For that reason alone, it is odd that the DOJ wouldn’t have wanted to pursue this case, simply to get additional clarity—particularly because Hall can no longer pursue this matter on her own behalf.

From a more fundamental standpoint, though, failing to pursue this appeal means that the government is now essentially agreeing with a reading of the ADA that severely limits the accommodations an employer must offer. Under this reading, if you can no longer perform your job because of the limitations of a disability, your employer doesn’t generally need to accommodate you and hire you for a different position as long as they have another candidate with higher qualifications. (There are exceptions if the employee can make a showing of special circumstances that warrant getting this accommodation, but the burden is on the employee to show that—and courts aren’t terribly clear about what constitutes a successful showing of special circumstances.)

In the Obama era, this would have been an important issue that the government likely would have pursued. Obama’s DOJ often had an expansive view of the ADA, pushing movie theaters to better accommodate the visually and hearing impaired, increasing federal employment of individuals with disabilities, and moving towards increasing website accessibility. The Trump administration, however, has refused to adopt that expansive view.

In addition to outright dismissing Hall’s case, the DOJ also filed an amicus brief last month saying that vending machines are not places of public accommodation. A public accommodation is a business that is generally open to the public. Businesses like that have to be accessible in a way that allows individuals with disabilities to be able to use them—things like wheelchair ramps and accessible parking. By arguing that vending machines need not be accessible to, say, blind individuals, the DOJ is declining to regulate those things, instead apparently believing that the private companies that own those vending machines (or the buildings in which those machines are located) are better-suited to decide how to ensure access to them. That is, of course, a very Trumpian view.

The DOJ has also indicated that it is not planning on prioritizing enactment of the Obama-era proposals to ensure greater website accessibility for individuals with disabilities. Right now, non-governmental websites do not need to be accessible. This means that disabled people can be shut out of much of the internet—especially in terms of commerce—if the website doesn’t voluntarily decide to do things like make the website accessible via a screen reader or other tool. At a time when the internet is increasingly central to people’s lives, the current DOJ stance is that expanding access to the web is not a priority.

It appears that, with each action it takes, the DOJ is telling people with disabilities that it doesn’t care if their needs are met and it doesn’t care if they’re able to fully participate in society. This is troubling and lamentable. A government that routinely sides with businesses and employers over individuals with disabilities is not the government we need. But right now, it is the government we have.

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