Rourk v. Oakwood Hospital Corp.

Cavanagh, J.

(dissenting). I write separately because I believe that under the Handicappers’ Civil *37Rights Act, MCLc 37.1101 et seq.; MSA 3.550(101) et seq., an employer has a duty to transfer an employee to a vacant position for which the employee is qualified and which imposes no undue hardship on the employer. For those reasons, I dissent from the majority’s reasoning and result.

DUTY TO TRANSFER UNDER THE HCRA

I cannot agree with the majority that under either the pre-1990 or the 1990 version of the Handicappers’ Civil Rights Act, an employer is not required to accommodate a handicapped individual by transferring her to a vacant position for which she is qualified. On the basis of the language contained in the HCRA, I would hold that an employer has such a duty. The only limitation the HCRA places on the duty to accommodate is that the accommodation may not impose an undue hardship on the employer. The employer has not alleged undue hardship.

Whether an employer must transfer an employee to a vacant position for which the employee is qualified relates to the employer’s specific duty to accommodate handicapped individuals. This is the second stage of the burden-shifting approach under the act. The act provides:

[A] person shall accommodate a handicapper for purposes of employment, public accommodation, public service, education, or housing unless the person demonstrates that the accommodation would impose an undue hardship. [MCL 37.1102(2); MSA 3.550(102)(2).]

The majority relies on a 1986 Michigan Court of Appeals case to hold that the duty to accommodate does not include a transfer to a vacant position for which the employee is qualified. Ante at 29, citing *38Rancour v Detroit Edison Co, 150 Mich App 276; 388 NW2d 336 (1986). However, Rancour's limitation of the duty to accommodate does not find any support in the language of the hcra itself. Indeed, Rancour is a judicial limitation of a broadly defined act, where the act states that an employer “shall accommodate a handicapper . . . unless the person demonstrates that the accommodation would impose an undue hardship.” Under the express terms of the statute, the only limitation on the range of possible accommodations are those that, because of their financial costs, impose an undue hardship on the employer.1

Once the prima facie case is proven, the burden shifts to the employer to prove that accommodation would impose an undue hardship. However, instead of focusing on whether the accommodation imposes an undue hardship on the employer, the majority concludes that a transfer is not a reasonable accommodation. There is no provision in the act defining “reasonable accommodation”; the only limitation on an accommodation contained within the act is the requirement that the accommodation may not impose an “undue hardship” on the employer.

The majority has incorrectly implied in its holding that § 210 of the HCRA expressly lists only those accommodations required of an employer.2 Ante at 32-33. In fact, the majority goes so far as to state that “[a]bsent a requirement expressly stated within the *39statute . . . the duty to accommodate includes job transfers, we decline to impose such a requirement.” Id. at 36.3

However, a careful reading of § 210 reveals no express list of required accommodations. Indeed, § 210 does not even contain a suggested list of required accommodations. Rather, § 210 relates to the burden of proof and cost of accommodation as undue hardship. MCL 37.1210; MSA 3.550(210). Section 210 lists nineteen different provisions relating to the amount of money an employer must expend before accommodation is deemed an undue hardship. The language contained in § 210 contains examples like, “if the person ... is required ... to purchase any equipment or device to accommodate . . . the total cost required to be paid ... is limited to an amount equal to the state average weekly wage.” MCL 37.1210(2); MSA 3.550(210)(2) (emphasis added). Or “if the person ... is required to hire . . . readers or interpreters . . . the cost required to be paid ... is limited to ... 7 times the state average weekly wage . . . .” MCL 37.1210(8); MSA 3.550(210)(8) (emphasis added).

For the majority to state that only those suggestions listed in § 210 are required for accommodation is completely contrary to the act itself. Furthermore, it is incorrect to imply that § 210 contains an exhaustive list of possible accommodations. It would be entirely impossible for the Legislature to compile a *40list of possible accommodations, where there are literally hundreds of actionable handicaps, each with its unique set of circumstances requiring accommodation.

Rather, the language of the act speaks for itself. The act requires “accommodation” unless there is an “undue hardship.” It does not define accommodation; therefore, any accommodation is required unless it imposes an undue hardship on the employer.4 *In Rourk, the employer did not claim that the requested transfer was an “undue hardship.” Indeed, it would be quite difficult to make such a claim, because in each case the position was vacant and the handicapped individual was qualified to do the work.5

In further support of my position, not only does the act fail to affirmatively exclude reassignment as a possible accommodation, it specifically contemplates limited job restructuring. MCL 37.1210(14); MSA 3.550(210)(14).6 While I understand that job restructuring and job reassignment are separate concepts, the point is that the employer must change or modify job duties under either approach, unless it shows hardship.

*41Finally, the majority’s holding not only strikes against the duty to transfer an individual to a vacant position for which the individual is qualified, it also precludes all other reasonable accommodations that impose no undue hardship on the employer that are not expressly contained in the cost provisions of § 210. If the Legislature had intended an express list, it would have included such a list in the language of the HCRA. It clearly has not done so. Therefore, this Court should not limit the scope of the hcra beyond what the Legislature expressly intended.

The types of reasonable accommodations that now may be precluded because of the majority’s narrow reading of the statute include: reserving parking spaces close to a work site; making restrooms accessible; removing raised thresholds; rearranging office furniture and equipment; providing an “accessible path of travel” to equipment and facilities; allowing diabetics to eat at varying times; modifying examinations, training materials, or policies; permitting use of accrued paid leave or unpaid leave for necessary treatment; making transportation provided by employer accessible; providing a personal assistant for certain job-related functions, such as a page turner for a person with no hands, or providing a sighted guide to assist a blind employee on an occasional business trip. While these accommodations may not cause an “undue hardship” on the employer, they do not neatly fit into the majority’s four types of accommodation: (1) purchasing equipment or devices, (2) routine maintenance or repair of such equipment or devices, (3) hiring readers and interpreters, and (4) restructuring jobs and altering schedules for minor and infrequent duties. Perhaps this is so because the *42cost requirements of § 210 are not intended to be an exhaustive list of accommodations.

For these reasons, I believe that the hcra requires an employer to accommodate a handicapped employee by transferring her to a vacant position for which she is qualified. Therefore, I believe plaintiff has stated a claim under the HCRA.

Kelly, J., concurred with Cavanagh, J.

Of course, I do not mean to imply that a plaintiff is not required to meet the qualification requirements for a particular job or that an employer must give preferential treatment to a handicapped individual. The act clearly places these limitations on a handicapped individual.

We note that subsections 210(2) through (16) do not apply to public employers. MCL 37.1210(17)(a); MSA 3.550(210)(17)(a).

While the majority states that it “expressly recognize[s] that § 210 does not provide an exhaustive list of accommodations,” id. at 36, n 5, it contradicts its own holding that “[ajbsent a requirement expressly stated within the statute that the duty to accommodate includes job transfers, we decline to impose such a requirement.” Id. at 36.

Subject, of course, to the prima facie requirements contained in subsection 210(1).

The majority apparently recognizes that “[a]ccommodations beyond those listed in § 210” may be required by the act if they do not “impose an undue hardship on the employer.” Ante at 36. However, after recognizing that the duty to transfer is something “beyond these provisions,” the majority fails to engage in an “undue hardship” analysis. Perhaps this is so because, at least in these two cases, a transfer to a vacant position does not pose any financial hardship on the employers. Id.

Under the provisions of MCL 37.1210(14); MSA 3.550(210)(14), a person who employs fewer than fifteen employees is not required to restructure a job.