One of our ongoing themes has been the extent of an employer’s obligation to accommodate disabled employees. A recent unpublished court of appeal decision – Swanson v Morongo Unified – illustrates this point.
Swanson, an elementary school teacher, had recently been treated for breast cancer. She asked to be assigned to teach 2nd grade, as she had recently done, instead of being assigned to work with 5th graders. Her fragile health, she said, made it difficult to do the added work a new assignment entailed.
But the school district assigned someone else to teach 2nd grade and assigned Swanson to teach kindergarten. She had not taught kindergarten in 30 years and expressed concern that, since the cancer treatments depleted her immune system, it would be dangerous for her to work with kindergarteners and the various illness they carried. The district, however, refused to change the assignment.
Swanson sued claiming the district failed to accommodate her disability. The district argued that it fulfilled its obligation to offer reasonable accommodation, even if it wasn’t Swanson’s preferred accommodation.
While the trial court granted the employer’s summary judgment motion, the appellate court reversed. It said that the district violated the Fair Employment and Housing Act by not giving Swanson preference for the 2nd grade position and not going far enough to find a workable accommodation. You can read the decision, which was reported in the BNA Labor and Employment Report (subscription), here: Swanson v Morongo (pdf).
Here are your takeaways:
- Disabled employees get preference for open positions, as long as they’re qualified and it doesn’t violate an established seniority system. This is true even if a nondisabled candidate may be more qualified.
- In the vast majority of cases, an employee will be viewed more sympathetically than an employer. If the employee is a cancer survivor, that advantage can be huge.
- The obligation to reasonably accommodate a disabled employee is an ongoing one. If an accommodation proves ineffective, the employer needs to resume the interactive process to identify other possible accommodations. Getting qualified legal guidance on this process is a lot cheaper than getting sued.