Since its passage in 1990, the Americans with Disabilities Act has been perceived as a law that would level the workplace playing field for qualified people with disabilities, placing disabled Americans on an equal footing with others in employment or promotion decisions.

But in a recent U.S. Court of Appeals decision, 10 federal judges slugged it out over a crucial ada question: Must an employer accommodate the disability of a qualified incumbent employee by non-competitively reassigning that employee to a vacant position?

The case before the District of Columbia Circuit Court of Appeals in which this question was raised, Aka v. Washington Hospital Center, No. 96-7089 (decided Oct. 9, 1998), involved Etim Aka, a 19-year orderly at Washington Hospital Center in Washington, D.C. In 1991, a year after the ada was signed into law, Aka underwent a heart-bypass operation and was told by his doctors that he couldn't go back to work as an orderly.

Aka approached his employer with a request for a transfer to a job that involved a "light or moderate level of exertion." In 1993, Aka applied for a job as a "central pharmacy technician." Although Aka was considered qualified for that job, another hospital employee with less seniority (but believed by the employer to be better-qualified) was hired instead.

Aka next applied for one of four file clerk positions. Although two of the four people ultimately hired were from outside Washington Hospital Center's workforce, and despite the fact that Aka was considered qualified for a file clerk's position, he was selected for none of the four vacant positions.

Aka filed a grievance under the terms of the collective bargaining agreement between Washington Hospital Center and its employees. The grievance went to arbitration. The arbitrator ruled in favor of the hospital; while Aka met the minimum qualifications for the jobs, was a "highly intelligent and motivated man" with "excellent" evaluations, the cba authorized the employer to hire less-senior applicants, or other applicants from outside the hospital workforce, if they were more qualified.

Aka continued to apply for jobs in the hospital, but was unsuccessful in landing any of them. (Ironically, since his heart surgery, Aka had not only continued working at whc as a volunteer, but had completed a master's degree in hospital finance.) In June 1994, Aka filed suit against Washington Hospital Center, alleging discrimination based on age (he was 56) and his status as a "qualified person with a disability" under ada.

Among other arguments, he noted that the ada's "reasonable accommodation" provision required his employer to accommodate his disability by assigning him to either the central pharmacy technician job or the file clerk job, regardless of seniority or cba considerations. Washington Hospital Center argued that the ada didn't require, and had never required, placing a qualified incumbent employee with a disability in a vacant position on a non-competitive basis.

(Although Aka's case raised issues under the Age Discrimination in Employment Act, and although the D.C. Court of Appeals also dealt at length with technical burden-of-proof issues, neither of these issues played a role in the court's decision on the ada "preferential placement" argument, so I won't be discussing those issues here).

If you were to ask the typical human-resources or personnel director about Aka's preferential-placement argument, you'd probably get a two-word answer: "Aka loses." Over the nine years since the ada became law, most folks would apply the statement made by a Congressman at the time the law was under consideration in the House of Representatives: "[T]he employer has no obligation under this legislation to prefer applicants with disabilities over other applicants on the basis of disability."

In this case, the experts didn't prevail. Aka won his case in the D.C. Circuit Court of Appeals; his preferential-placement argument persuaded six of the 10 Circuit Court judges who heard the case.

Those six judges based their majority opinion on two points:

1) Aka wasn't an "applicant" within ada's definitions.

The majority agreed that "applicants" were entitled to no preference in hiring. But, according to the court, Aka was not an applicant. Rather, he was seeking "reassignment," which, the majority argued, was an accommodation issue, based on the ada's definition of "reasonable accommodation."

"The term 'reasonable accommodation' may include:

(A) Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and

(B) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities." (emphasis added by the court)

To support its interpretation, the majority opinion cited Congressional testimony: "If an employee, because of disability, can no longer perform the essential functions of the job that he or she has held, a transfer to another vacant job for which the person is qualified may prevent the employee from being out of work and the employer from losing a valuable worker."

Finally, the majority pointed out that such reassignment or transfer wasn't automatic. It wouldn't occur when the disabled employee is in fact not qualified for the vacant position, or if such reassignment works an undue hardship on the employer. (The ada's "reasonable accommodation" provisions define "reasonable" as not working an undue hardship on the operation of the employer's business.)

2) The collective bargaining agreement didn't prohibit such assignment.

While the arbitrator who heard Aka's original grievance relied on the part of the cba that regulated hiring, the appeals court majority looked to a different provision:

Section 14.5 "An employee who becomes handicapped and thereby unable to perform his job shall be reassigned to another job he is able to perform whenever, in the sole discretion of the Hospital, such reassignment is feasible and will not interfere with patient care or the orderly operation of the Hospital."

When Aka argued that this provision applied in his case, Washington Hospital Center disagreed, arguing in response that this provision only applied after the seniority-and-qualification provision of the agreement had been complied with. In other words, reassignment required application for a vacant position, so the cba's application rule had priority.

The majority threw out Washington Hospital Center's argument, stating that "... collective bargaining agreements are interpreted whenever possible so as to be consistent with federal labor law. Thus, an interpretation of section 14.5 which allows whc to implement its ada obligations is distinctly preferred."

The four-judge minority disagreed, citing an opinion from the 5th Circuit Court of Appeals: "(W)e do not read the ada as requiring affirmative action in favor of individuals with disabilities in the sense of requiring that disabled persons be given priority in hiring or reassignment over those who are not disabled." Daugherty v. City of El Paso, 56 F.3d 695, 700 (1995).

The 5th Circuit Court of Appeals and the D.C. Circuit Court of Appeals have equal status in the American court system, so the 5th Circuit's statement is law only in the 5th Circuit. The D.C. Circuit minority in the Aka case used Daugherty for purposes of persuasion, but the majority was not persuaded.

What does this mean to fire service managers?

* First, they have every right to feel somewhat confused. Once again, as in sexual-harassment cases, there's no uniformity of interpretation of the law across the United States.

It took U.S. Supreme Court intervention in Faragher v. City of Boca Raton, 141 L.Ed.2d 662, to bring uniformity to sexual-harassment law, and it will take Supreme Court action to establish the same uniformity in ada interpretation. (Regarding Faragher, see Lex de Incendiis, Sept. 1998, available at .)

* Second, chief fire executives should consult their department or jurisdiction attorneys to find out whether the reassignment question has ever been raised, and, if it has, whether the applicable rule of law is that of Aka or Daugherty.

* Third, fire managers should review their job specifications to make sure that minimum requirements are clearly spelled out, and develop strategies on handling a reassignment request from an incumbent employee who becomes disabled.

* Finally, fire service managers should review collective bargaining agreements and/or local ordinances and state laws to see if there's a conflict between department reassignment policy and the ada definition of "reasonable accommodation."

In Aka, the majority pointed out that Congress had recommended that employers incorporate provisions into cbas "permitting the employer to take all actions necessary to comply with this legislation." If such a provision is in place, either in a cba or in a local ordinance or state law, and an incumbent employee with a disability requests reassignment, that provision may dictate the result.

Another side of accommodation Although U.S. District Courts don't make law outside the cases they deal with, a District Court ruling can signal a trend. That's why a Pennsylvania case, Hoppes v. Pennsylvania, 32 F.Supp.2d 770, should be of interest to fire service managers.

Hoppes applied for a job as a water conservation officer. He was turned down because he was color-blind, and the minimum qualifications for the job included the ability to recognize color-coded channel markers, boat running lights and color-coded pollutant tests.

Hoppes sued, arguing under the ada that he was a qualified person with a disability that could be accommodated if the prospective employer would let him wear a single red contact lens. The prospective employer argued that, even with the lens, Hoppes could distinguish red from green, but couldn't recognize red or green.

The District Court ruled that Hoppes wasn't protected by the ada. Under the ada, "disabled" is defined as having an impairment of a "major life activity," like work. The court ruled that color-blindness doesn't limit eyesight to the point of interference with a "major life activity," since Hoppes could take other jobs that didn't require red-green color recognition.

Liability for retaliation widens Finally, in the wake of last summer's U.S. Supreme Court rulings on sexual harassment, the 10th Circuit Court of Appeals recently ruled that co worker hostility and retaliation against an employee who filed a harassment complaint can result in employer liability.

In Gunnell v. Utah Valley State College, 152 F.3d 1253 (1998), a woman filed a sexual-harassment complaint with her employers, and alleged that, after she'd filed the complaint, she was harassed by her co-workers for doing so.

Her employer took responsibility for retaliation by management and supervisors, but argued that it shouldn't be responsible for retaliation by peers. Tenth Circuit judges didn't buy this argument. They ruled that if the retaliation was serious enough to constitute hostile-environment retaliation, the employer could be held liable for failing to act to stop the retaliatory action, thus "condoning" the retaliatory actions of the woman's peers.

What's the lesson of this case for fire service managers? Include a "zero-retaliation-tolerance" provision in your department's sexual-harassment policy, and make sure all members are familiar with it.