No Reasonable Accommodation Required to Help Disabled Teacher Become “Qualified Individual” Under the ADA
In Johnson v. Board of Trustees of the Boundary County School District No. 101 (9th Cir., Dec. 8, 2011, No. 10-35233) __F.3d__ [2011 WL 6091313], the Ninth Circuit Court of Appeals held that a disabled teacher was not a “qualified individual with a disability” under the Americans with Disabilities Act (“ADA”) and the teacher was not entitled to a reasonable accommodation to enable her to become qualified.
Johnson was a special education teacher with the Boundary County School District No. 101 (“District”) for ten years, during which time she suffered from mental illness including major depressive disorder and bipolar disorder. In May 2007 Johnson entered into a teaching contract with the District for the 2007-2008 school year. The contract required her to have “the legal qualifications” required to teach special education, which, in Idaho, meant a certificate from the State Board of Education.
Johnson’s certificate expired and she failed to obtain the necessary professional development credits to receive a new certificate. As a result, the District terminated Johnson’s employment.
Johnson filed suit against the district alleging disability discrimination. Title I of the ADA forbids “discriminat[ion] against a qualified individual with a disability because of the disability of such individual in regard to…the hiring, advancement, or discharge of employees.” (42 U.S.C. § 12112(a).) In order to make her claim for discrimination, Johnson had to show that she was a “qualified individual with a disability.” The Ninth Circuit adopted the two-step inquiry contained in the federal regulations implementing the ADA.
Under this two-step inquiry, a qualified individual with a disability is one who (1) “satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires,” and (2) “with or without reasonable accommodation, can perform the essential functions of such position.” (29 C.F.R. § 1630.2(m).) It is well-established that employers are required to provide reasonable accommodations to enable an otherwise qualified applicant/employee to perform the essential functions of a job. However, Johnson claimed that the ADA required the District to provide a reasonable accommodation to allow her to meet the job qualifications in the first place and become an otherwise qualified individual. Interestingly, the Equal Employment Opportunity Commission (“EEOC”), the agency charged with implementing the ADA, filed an amicus curiae brief alleging the same interpretation as Johnson—that an employer is required to provide a reasonable accommodation to an applicant if doing so would allow the applicant to become qualified for the job.
However, the Ninth Circuit determined that the statutory language regarding reasonable accommodations only applies to the second step in the analysis, related to performing the essential functions of the job. Reasonable accommodations are only required to be provided to an individual who already “satisfies all the skill, experience, education and other job-related selection criteria.” (29 C.F.R. Pt. 1630, App. to § 1630.9(a).) Here, Johnson did not possess the teaching certificate that was a legal qualification for employment as a teacher.
Under the court’s holding, the ADA does not require an employer to provide an accommodation to help an applicant or employee become qualified for a position. It is unclear if this ruling will affect employer obligations under the California Fair Employment and Housing Act (“FEHA”). FEHA requires employers to make reasonable accommodations for the known physical or mental disabilities of applicants and employees. FEHA does not have an express requirement that the employee or applicant satisfy all job-related requirements in order to be protected under that law, and California courts of appeal have issued inconsistent opinions regarding whether such a requirement exits under FEHA. However, FEHA has historically been construed more broadly than the ADA. As a result, should a question arise whether the employer has a duty to provide an accommodation so that an employee can meet or perform the job qualifications and duties, we recommend consulting legal counsel.
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F3 NewsFlash prepared by Paul Thompson and Becky Feil.
Paul is a partner in the F3 Sacramento office.
Becky is an associate in the F3 Sacramento office.
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 This section of the ADA has since been amended to read “…against a qualified individual on the basis of disability…” (42 U.S.C. § 12112(a).)