CA9: No Right to Accommodation of "Job Prerequisites" Like Licensing

Yesterday, the United States Court of Appeals for the Ninth Circuit issued its opinion in Johnson v. Board of Trustees. The case was brought by a teacher (Johnson) whose license lapsed because, due to a major depressive episode, she had not completed her continuing education requirements. State law allowed for a waiver of the continuing education requirement temporarily to permit a teacher to continue working while she makes up the education credits she owes, and Johnson asked her school district employer, as a reasonable accommodation, to request such a waiver. But the district declined to do so and instead discharged her. Johnson sued under the ADA.

The ADA, of course, requires that a plaintiff established that she is a "qualified individual," which the statute defines as an individual "who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8) (emphasis added). Johnson agreed that she could not perform her job without accommodation, because she needed a license to teach and would not have one without a waiver, but that she could perform her job if the district requested and the state granted a waiver.

The Ninth Circuit rejected that claim. In an opinion by Judge O'Scannlain, it did not hold that a waiver would be an unreasonable accommodation. Rather, it held that an individual with a disability is not entitled to reasonable accommodation of "job prerequisites" such as licensing; such an individual, in the court's view, is entitled to accommodation only in her performance of job functions. For example, the court explained, a blind individual hired to be an attorney is not entitled to accommodation of her employer's requirement that she be admitted to the bar, though she is entitled to accommodations on the job to enable her to read and review documents. In reaching this conclusion, the court relied principally on the EEOC's regulations implementing Title I of the ADA, which provide that a qualified individual is one “who satisfies the requisite skills, experience, education and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m) (emphasis added). The court read this regulation as applying the accommodation requirement only to the second step of the inquiry (performance of essential functions), not the first (satisfying job prerequisites). The court concluded:

[A]n individual who fails to satisfy the job prerequisites cannot be considered “qualified” within the meaning of the ADA unless she shows that the prerequisite is itself discriminatory in effect. Otherwise, the default rule remains that “the obligation to make reasonable accommodation is owed only to an individual with a disability who . . . satisfies all the skill, experience, education and other job-related selection criteria.” 29 C.F.R. Pt. 1630, App. to §1630.9(a).

As the court noted, its opinion rejected the position taken by the EEOC and the Department of Justice as amici. (Disclosure: I supervised the DOJ's side of the work on the amicus brief the two agencies filed.) For coverage of the case from Mark Walsh's essential blog on education and the law, see this post.