E. Reasonable Accommodation
1. General Principles
Assuming, arguendo, that no causal connection between the disabling
limitation and the requested accommodation is needed to invoke ADA
protection, the reasonableness of the requested accommodation must be
determined. "It is well established that under the ADA, the employer's
duty reasonably to accommodate a disabled employee includes reassignment
of the employee to a vacant position for which she is qualified." Dalton
v. Subaru-Isuzu Auto., Inc., 141 F.3d 667, 677 (7th Cir. 1998) (citing
42 U.S.C. § 12111(9)(B)). See also Norville v. Staten Island Univ.
Hosp., 196 F.3d 89, 99 (2d Cir. 1999) ("[W]here a comparable position is
vacant and the disabled employee is qualified for the position, an
employer's refusal to reassign the employee to that position —
absent some other offer of reasonable accommodation — constitutes a
violation of the ADA."). Furthermore, "[t]he option of reassignment is
particularly important when the employee is unable to perform the
essential functions of his or her job. . . ." Dalton, 141 F.3d at 677
(citing 29 C.F.R. § 1630.2(o)). See also Norville, 196 F.3d at 98
("An individual is `otherwise qualified' under the statute if she can,
`with or without reasonable accommodation, . . . perform the essential
functions of the employment position that such individual holds or
desires.") (citing 42 U.S.C. § 12111(8)).
While the ADA places a duty on employers to ascertain whether there are
some jobs that the employee might be qualified for, see Dalton, 141 F.3d
at 677 (internal quotation marks and citation omitted), this rule is not
without limitation. First and foremost, an "employer is not obligated to
provide an employee the accommodation [she] requests or prefers, the
employer need only provide some reasonable accommodation." Gile v. United
Airlines, Inc., 95 F.3d 492, 499 (7th Cir. 1996). "Nothing in the ADA
requires an employer to abandon its legitimate, nondiscriminatory company
policies defining job qualifications, prerequisites, and entitlements to
intra-company transfers." Dalton, 141 F.3d at 678. In addition, employers
are not required to create new jobs or reassign disabled employees if no
positions are vacant. See Norville, 196 F.3d at 99. Nor are employers
required to retrain and assign disabled employees to entirely different
positions. See, e.g., Mitchell, 190 F.3d at 9; Parisi v. The Coca-Cola
Bottling Co. of New York, 995 F. Supp. 298, 303 (S.D.N.Y. 1998) (transfer
required only when an equivalent similar position exists), aff'd,
172 F.3d 38 (2d Cir. 1999) (unpublished).
According to the NYCTA, Felix could not have been transferred. to an
office duty Railroad Clerk position as she could not have fulfilled all
of the position's essential functions given her inability to work in the
subways. Whether an exception to this policy for Felix would have
converted "a nondiscrimination statute into a mandatory preference
statute," Dalton, 141 F.3d at 679, depends on what one considers the
essential functions of an office duty Railroad Clerk to be.
2. Essential Functions
Although a qualified individual with a disability must be able to
perform the essential functions of a position, "`that inquiry is not
limited to the employee's existing job. Rather, the plain language of the
statute includes an employee who has the ability to do other jobs within
the company that such disabled person `desires'.'" Connolly v. Biderman
Indus. U.S.A. Inc., 56 F. Supp.2d 360, 366 (S.D.N.Y. 1999) (quoting Smith
Brake, Inc., 180 F.3d 1154, 1160-61 (10th Cir. 1999)).
The term "essential functions" has been defined by the EEOC to mean the
"fundamental" duties to be performed in the position in question, as
opposed to functions that are merely "marginal." See.
29 C.F.R. § 1630.2(n)(1). A function may be essential if there are a
limited number of employees who can perform that function. See
29 C.F.R. § 1630.2(n)(2)(ii). Other factors that are relevant to this
inquiry include: the employer's judgment as to which functions are
essential; written job descriptions; the amount of time spent on the job
performing the function; the consequence of not requiring the transferee
to perform the function; and the work experience of past incumbents. See
29 C.F.R. § 1630.2(n)(3)(i)-(iv), (vi).
The Second Circuit analyzed the essential functions issue in Stone.
There, the plaintiff, a firefighter who was rendered paraplegic after an
off-duty accident, brought suit against the City of Mount Vernon for
failing to assign him to a light-duty position. See 118 F.3d at 93. The
Fire Department had two light duty bureaus: the Fire Alarm Bureau ("FAB")
and the Fire Prevention Bureau ("FPB"). See id. The City refused to
reassign Stone to either of these bureaus because it was the Fire
Department policy that all active firefighters must be able to perform
fire-suppression duties, regardless of the bureau to which they are
assigned. See id. at 94. Stone argued that the Department could have
accommodated him as fire suppression was not an essential function of an
FAB or FPB position. See id.
The Second Circuit vacated the lower court's grant of summary judgment
in defendants' favor, stating:
proper analysis of a claim under the federal
disability statutes must be focused on "the
fundamental job duties of the employment position the
individual with a disability. . . desires,"
29 C.F.R. § 1630.2(n)(1) (emphasis added), rather
than solely on the title held by a person occupying
that position or the other positions occupied by most
persons holding that title. The court should have
focused more closely on the job duties of firefighters
assigned to FAB or FPB.
Id. at 99. The court further noted that "as a matter of practice,
firefighter assigned to FAB or FPB simply have not been called upon to
fight fires." Id. at 99-100. Given this historical practice, the court
found it "entirely permissible for a factfinder to infer that the ability
to engage in firesuppression activities is marginal to the positions in
FAB and FPB." Id. at 100.