Refusal to Promote Correctional Officer with Back Injury Upheld

​Because a correctional officer with a back injury could not respond to inmate violence in emergencies, he could not perform an essential function of a lieutenant position, a federal appeals court ruled. Therefore, the court said, the sheriff's department did not violate the Americans with Disabilities Act (ADA) by refusing to consider the officer for promotion to the lieutenant job.

In his third year as a correctional officer for the sheriff's department, the officer had a back injury. He returned to work under medical restrictions that required him to "avoid situations in which there is a significant chance of violence or conflict." After he was promoted to sergeant, the sheriff's office agreed to accommodate this medical restriction by allowing him to work in the classification unit, where the possibility of violence or physical conflict was relatively remote.

But when the officer sought a promotion to lieutenant, he was told that the sheriff could not accommodate him in that position. Correctional lieutenants had to be able to manage and defuse regular, violent situations involving inmates. Because the officer's medical restrictions would prevent him from performing this essential function, the sheriff's department said, he would remain a sergeant. The officer sued under the ADA. The trial court dismissed the lawsuit before trial, and the officer appealed.

Essential Functions Under the ADA

The ADA prohibits discrimination, including denial of promotions, against a qualified individual on the basis of disability. A qualified individual is someone who, with or without reasonable accommodation, can perform the essential functions of the employment position. An employer must therefore make reasonable accommodations that will allow a qualified individual to perform the essential functions of the job, the court explained.

The sheriff's office argued that the ability to respond physically to emergencies involving inmate violence was an essential function for all lieutenants in the department, and that the officer's medical restrictions prevented him from performing that essential function. The officer argued that the ability to respond physically was not a truly essential function of all lieutenant jobs.

The court then noted that while the statutory text of the ADA provided little guidance on how to determine whether a particular job function was essential or not, regulations implementing the ADA identified several categories of evidence to consider, including:

• The employer's judgment as to which functions are essential.
• Written job descriptions prepared before advertising or interviewing applicants for the job.
• The amount of time spent on the job performing the function.
• The consequences of not requiring the incumbent to perform the function.
• The actual work experience of others holding the same job.

The employer's judgment is an important factor, but it is not necessarily decisive, the court said. Careful attention to the regulation's other evidentiary factors can counter the employer's judgment.

The sheriff argued that the ability of a lieutenant to respond to dangerous situations was essential to maintaining the safety and security of the jail, as well as those working in it, and was therefore an essential job function.

In addition, the written job description supported the finding that responding physically to violent emergencies was an essential function of the lieutenant position. According to the description, a lieutenant ensures the safety and security of inmates, staff and citizens through the enforcement of proper detention policies and procedures. Key responsibilities include defusing and controlling disruptive behavior through the appropriate use of physical force, if necessary.

Here, the job description reinforced the sheriff's judgment, the court noted. Lieutenants are always ensuring safety through enforcement, and although some assignments involve less frequent need for the use of physical force, none of the assignments require no use of force.

And, although, as a general rule, the more time an employee spends performing a function, the more essential the function is likely to be, there are exceptions to this rule, particularly when the job includes emergency response duties. A function that is performed only rarely may still be essential, the court said.

As to the impact of not requiring the employee to perform the function, the court noted that, in the prison context, if the officer were unable to respond as needed to a violent emergency, the consequences could be grave.

Finally, as to the actual experience of those holding the lieutenant position, some former and current lieutenants stated that they had less physical contact with inmates than sergeants, and some lieutenants had rarely, if ever, needed to counter inmate violence with physical force. However, undisputed data showed that, during a two-year period, there were 114 incidents when correctional lieutenants were required to use force to control inmates, the court noted.

There was no way to predict when a lieutenant would need to use force, the court said, and the need could arise anywhere in the jail.

Therefore, considering all the relevant factors, the court concluded that the ability to respond physically to violent emergencies was an essential function for correctional lieutenants. Under his medical restrictions, the officer could not fulfill that essential function, so he was not a qualified individual for the correctional lieutenant position he sought, the court concluded.

Tate v. Dart, 7th Cir., No. 21-2752 (Oct. 25, 2022).

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.