3. The employer discharged, failed to hire or promote, etc., the individual because of the disability.  UNITED STATES COURT OF APPEALS, FIRST CIRCUIT, 1998.

   The U.S. Circuit Court of Appeals for the First Circuit started by carefully noting the state hospital’s written job description for an institutional attendant.

   The essential functions of the position included performing personal hygiene, transferring and lifting patients, administering minor treatments, bathing, dressing and grooming patients, cleaning bed pans and other equipment, exercising and walking patients to various locations and participating in food service to patients at meal times.

   The hospital’s written job description listed critical demands for the position. These included that the attendant be able to lift fifty pounds maximum, be able to lift patients from a bed to a chair or stretcher, assist in bathing patients, be able to reach above and below shoulder level frequently, lift and stand frequently and frequently push and pull up to fifty pounds.

   The attendant in question had residuals from an on-the-job back injury and claimed she was restricted from lifting more than twenty to thirty pounds and from prolonged standing and walking. She asked for a power lift to help her in the lifting tasks associated with her job.

   Her supervisors believed her physical limitations were genuine, but were unwilling to allow her to return to work on any basis but full-duty status. She was terminated when she refused to return to full duty after the date set in her worker’s compensation case as the end of her time-loss payments.

   She sued for disability discrimination citing the Americans With Disabilities Act. A District Court judge dismissed her case based on a magistrate’s findings. The Circuit Court of Appeals affirmed.

   The Court of Appeals ruled that a mechanical power lift would not be a reasonable accommodation. Physically and mentally incapacitated patients are usually unable to position themselves correctly on a power lift to be lifted safely. And this attendant had once before injured herself trying to position a patient on a power lift. Lifting a patient safely with a power lift is basically a two-person operation, the court believed, which in light of the institution’s budgeting and staffing constraints would defeat the whole purpose of the lift as an accommodation to one employee who could not perform essential lifting tasks alone.

   The court pointed out the lift offered no held with certain patient transfers or with patient ambulation, during which the attendant’s strength and lifting capacity are critical to the patient’s safe care.

   In sum, the court ruled a mechanical power lift is not a reasonable accommodation to a full-care staff member with lifting restrictions from a back injury. But that was not the end of the legal analysis.

   The employee claimed she should have been given a clerical position as a receptionist or ward clerk. She was qualified for either of these positions.

   The court agreed in general terms that the duty of reasonable accommodation requires an employer to re-assign a disabled employee to a physically less demanding position, if such a position exists, is vacant, the employee is qualified and the employee takes steps to notify the employer he or she wants the position.

   However, in this case the court noted that the receptionist and ward clerk positions were filled based on seniority, bargaining unit membership and current job classification.

   Reasonable accommodation under the Americans With Disabilities Act does not mean that a physically non-demanding position is automatically to be given to a disabled employee, the court pointed out.

   The court said the employer’s duty to reassign a disabled employee to a lighter position is subject to the employer’s more important obligation to uphold other employees’ seniority rights or rights which are based on a collective bargaining agreement or other non-discriminatory job selection processes. Feliciano v. State of Rhode Island, 160 F.3d 780 (1st Cir., 1998).

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