In the context of an employment discrimination lawsuit, when I think about a demotion, I’m also thinking of retaliation.
The plaintiff with a disability was also thinking the same thing in this recent federal court decision. Plus, the plaintiff thought that when her employer offered her three possible accommodations: (1) a demotion with less pay; (2) resignation; or (3) termination of employment, none were reasonable.
Then how did she go zero for two on her ADA failure-to-accommodate and retaliation claims? Let’s find out.
Plaintiff  worked as a deputy [for the Defendant] until her hand was seriously injured in a car accident while on duty. After assigning [Plaintiff] to light duty for about a year, the [Defendant] told [Plaintiff] that she must either transfer to a permanent position with a cut in pay or be terminated. After some back and forth, [Plaintiff] accepted a civilian job as a jail visitation clerk.
The back and forth began with Plaintiff’s formal request for an accommodation under ADA. Defendant provided an ADA form, and the two emailed back and forth over several weeks. This correspondence addressed the request for an accommodation and whether the demotion to a clerk position would enable the Plaintiff to be able to perform the essential functions of that job.
Plaintiff described accommodations that she believed might enable her to perform the clerk job. She requested a hands-free telephone, voice-activated software for her computer, an ergonomic work station, the ability to take breaks when needed to alleviate her pain, and training for her supervisors. Two months later, Defendant responded in a letter granting each of these requests except the voice-activated software. And, eventually, Plaintiff agreed to the demotion rather than lose her job.
Yes, a demotion can be a reasonable accommodation.
Given the circumstances, however, Plaintiff alleged the demotion was not a reasonable accommodation as a matter of law. But, the Seventh Circuit Court of Appeals disagreed, concluding that “[a] demotion can be a reasonable accommodation when the employer cannot accommodate the disabled employee in her current or prior jobs or an equivalent position.”
The demotion is not retaliatory either.
Plaintiff also argued that her demotion was an adverse action that can support additional claims for disability discrimination and retaliation.
But, if the demotion is a reasonable accommodation, how could it also be retaliatory? Hmmm…
Cue the Seventh Circuit:
We do not see how the reassignment could be simultaneously a reasonable accommodation and an adverse employment action. Where both sides agreed that [Plaintiff] could no longer serve as a sheriff’s deputy, reasonable accommodation standards provide the better framework….We have trouble imagining how a demotion that qualifies as a reasonable accommodation required by the ADA can, at the same time, constitute disability discrimination or retaliation prohibited by the ADA.
Wait. Hold up a sec.
Before you tell your HR team that Meyer said it’s cool to accommodate employees with disabilities by demoting them, check this out. The court noted that if an employee with a disability can show that she qualified for a vacant position that more closely matched her previous job (i.e., maybe a lateral move with no reduction in pay or benefits), the ADA would have obliged the employer to offer it to her.
Additionally, make sure that you take the interactive process seriously to determine whether there exists an accommodation that will enable an employee with a disability to perform the essential functions of the job. Too many times, employers will short-circuit that conversation by failing to ask for medical documentation to support an accommodation request or by stereotyping and jumping to knee-jerk conclusions that there are no reasonable accommodations available.