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7th Circuit Approves Well-Constructed Lateral Transfer As a Reasonable Accommodation

The Seventh Circuit Court of Appeals recently determined that an Illinois Sheriff’s Department did not violate the Americans with Disabilities Act (ADA) by declining to provide a deputy his requested accommodation, an SUV, and instead transferring him to a position that did not require driving. The deputy had alleged the Department’s failed to accommodate him by refusing to provide him with an SUV, then retaliated against him by transferring him to a courthouse duty position.

Here are the facts. A sheriff's deputy requested a squad car with more legroom to accommodate a hip condition substantiated by two doctor's notes. The second note requested that the deputy be accommodated by providing "a squad car with more legroom, like an SUV" if available. The Sheriff's Department measured the legroom in one of its SUV squads and the plaintiff's squad car, a Crown Vic. The measurements were the same. The Sheriff's department denied the request.

The deputy responded with an EEOC charge alleging violations of the American's with Disabilities Act and a third doctor's note stating "a squad car with more legroom, like an SUV, [was] necessary" to alleviate his hip pain. The next day, the Sheriff's Department reassigned the deputy to courthouse duty where he would not need to drive at all. In that move, it also removed him from active special operations duty. After undergoing corrective surgery, the deputy returned to courthouse duty. Shortly thereafter, he returned to his original position, but was assigned to the midnight shift. Despite being fully restored, the deputy sued in federal court, alleging the Sheriff's Department failed to accommodate him when it denied his request for an SUV, then wrongfully retaliated against him for making EEOC complaints when it transferred him to the courthouse, removed him from active duty, returned him to courthouse duty following his surgery, and placed him on the midnight shift .

The 7th Circuit held the deputy did not qualify as "disabled" under the ADA because his hip condition did not affect a "major life activity." The plaintiff identified only one restriction, the ability to drive a specific vehicle. The court held this was not sufficient, distinguishing between the inability to drive altogether and the inability to drive a particular vehicle. While the former may affect a major life activity, the latter could not.

Regarding the retaliation claim, the court focused on at whether the Department's response to his EEOC charge and accommodation request was an adverse employment action, finding it was not. The court held the transfer could not be deemed adverse because the Department accommodated the deputy's hip pain, something the deputy asked it to do. The court reminded us that it is the "employer's prerogative to choose a reasonable accommodation."

The court also rejected the deputy's contention that removing him from active special operations duty during his courthouse duty, that returning him to courthouse duty after his return from surgery, and assigning him to the midnight shift when he returned to his law enforcement duties were retaliatory acts. The Appeals Court found it significant that even during regular duty the deputy only occasionally participate in special operations assignments. On courthouse duty he may have missed a few training exercises but he failed to show this amounted to anything like a career setback. Ultimately, the Appeals Court found that even if some of the county's or Sheriff's department's actions were adverse to the deputy, he did not show that the Department's explanation that they the "logical effects" of accommodating the deputy's hip pain was pretextual.

This case serves as an example of the need to engage in the interactive process even when an employer doubts the employee is disabled within the meaning of the ADA. The Department showed it met its obligations by confirming its SUV did not in fact have the additional leg room requested by the deputy through his physician. Instead the county found a lateral position for the applicant that did not decrease his salary, set back his career, or otherwise adversely affect his employment.

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