March 1, 2000

The ADA Does Not Require "Bumping"

Holland & Knight Newsletter
Kelly-Ann Cartwright

The Seventh Circuit Court of Appeals held in Pond v. Michelin North America, Inc. (7th Cir. 1999) that the Americans with Disabilities Act (ADA) did not require an employer to transfer an employee to an occupied position that the employee had the right to acquire under the provisions of the parties' collective bargaining agreement. The court held that Congress did not intend that other employees lose their positions in order to accommodate a disabled co-worker.

In Pond, the employee was a battery operator who contracted Hepatitis C which rendered her unable to perform her duties. Before expiration of a nine-month disability leave, Michelin informed Pond that its policy required her to return to work or be terminated. Pond's medical condition, however, precluded her from returning to the position of battery operator.

Pond sought another position with Michelin and Michelin identified the Fill-Flip position as one which Pond could perform with her medical restrictions. Pond requested that she be placed in the Fill-Flip position. At the time of Pond's request, however, there were no vacant Fill-Flip positions. Pond argued that her seniority at the plant entitled her to bump an existing employee from the Fill-Flip position as a reasonable accommodation for her work-related disability. Michelin disagreed with Pond's position and terminated Pond for failure to return to work after the expiration of her disability leave.

Pond filed suit under the ADA contending that Michelin failed to reasonably accommodate her disability. In affirming summary judgment for Michelin, the court noted that the ADA required an employer to make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity" 42 U.S.C.

§ 2112(b)(5)(A). The term "reasonable accommodation may include . . . reassignment to a vacant position." Pond argued that since her collective bargaining agreement permitted her to bump a less senior employee, the occupied Fill-Flip position should be considered "vacant" for purposes of the reasonable accommodation requirement under the ADA.

Relying on precedent, the language of the statute, congressional reports and case law under the Rehabilitation Act of 1973, the court concluded that the ADA does not require an employer to bump an employee from an occupied position in order to accommodate a disabled employee. Indeed, the court found that employees "who have a contractual right to bump less senior employee presented a less compelling need for an ADA remedy than those who do not possess such a right." In a footnote, however, the court noted that although the ADA did not provide Pond with a remedy, she may nevertheless pursue whatever rights she had under her collective bargaining agreement in the appropriate forum.

For more information please call Kelly-Ann Cartwright at 1.888.688.8500.

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