Legal Defense Fund - Case Decisions

* The San Jose Police Department employs about 1,000 police officers and 300 individuals in higher ranks.

* About half of the police officers work in beat patrol assignments; the other half work in “specialized assignments”.

* Specialized assignments are more desirable; the department and the San Jose Peace Officers’ Association have negotiated an Officer Transfer Policy to allocate these assignments.

* Under the Officer Transfer Policy, officers may generally serve in specialized assignments for only three years.

* For over 20 years the department has attempted to develop an appropriate policy for assigning disabled police officers. The current policy, called the “Modified Duty Policy”, is the result of negotiations between the City and the POA.

* Under the Modified Duty Policy, officers “not fit for regular assignment” are assigned to a modified duty pool. The City and the POA have agreed upon a list of modified duty assignments to which officers in the modified duty pool can be assigned. Assignment is usually on the basis of seniority.

* The modified duty positions are non-patrol and are generally viewed as undesirable.

* Under the Modified Duty Policy, officers in the modified duty pool can only be considered for modified duty assignments. They will not be assessed to determine if they can perform the essential functions of a non-modified-duty assignment.

* Officers in the modified duty pool cannot satisfy the experience requirements for promotion to sergeant.

* The six officer plaintiffs had neck and back injuries that prevented them from serving in patrol.

* The six officer plaintiffs contended that the modified duty positions were not real work, were degrading, were subject to ridicule from other officers, were allocated to undesirable shifts, etc.

* The six officer plaintiffs filed suit against the City and the POA. They argued that the Officer Transfer Policy and Modified Duty Policy violated the Americans With Disabilities Act (ADA). The federal district court granted summary judgment in favor of the City on the grounds that the plaintiffs were not “qualified individuals” under the ADA because they could not, even with accommodation, perform the essential functions of their job, which included being able to effect a forcible arrest, control a combative arrestee, and respond to an emergency.

* The Ninth Circuit reversed the district court.

Cripe Analysis

* The ADA protects only “qualified individuals” with a disability. A “qualified individual” with a disability who can, with reasonable accommodation, perform a job’s essential functions is protected from employment discrimination by the ADA. Both the district court and the Ninth Circuit agreed that, for ADA employment discrimination purposes, you look to the essential functions of the assignment, rather than to the essential functions of the job class of police officer.

* The first big question for the Ninth Circuit was to determine if making forcible arrests was really an essential function of specialized assignments. The Ninth Circuit concluded that the plaintiffs had submitted credible evidence that such specialized assignments as fraud investigator, internal affairs investigator, recruiter, and training officers, did not require making forcible arrests. Since this was all that was required to defeat the trial court’s grant of summary judgment in favor of the City, the Ninth Circuit decided against the City on this issue.

* The second big issue for the Ninth Circuit is that, even if making forcible arrests is not an essential function of all specialized assignments, are the Officer Transfer Policy and the Modified Duty Policy non-discriminatory under the ADA. This issue boils down to the question of, even if the two policies do in effect screen out officers with disabilities and so are discriminatory, do the policies come within the ADA’s “business necessity” exception? In other words, are the two policies necessary to effect the specific skills and physical requirements of the assignment?

* The Ninth Circuit noted that “there can be no question that” the two department policies screen out individuals with disabilities, and so the policies would constitute employment discrimination under the ADA, unless the ADA’s “business necessity” exception applied.

* The Ninth Circuit then noted that the “business necessity” exception is a tough one to establish and that the City had failed to do so. The City first defended its Officer Transfer Policy by contending that it wanted all officers to be able to perform patrol assignments. But this rationale cannot ever apply to officers in modified duty positions from serving in specialized assignments, since such officers can never service in patrol. The City’s second defense of the Officer Transfer Policy was that it is an effort to expand the skills of patrol officers and to prevent burnout. The court rejected this rationale, since allowing the 30 officers on modified duty assignments to serve in specialized assignments would not to any significant extent reduce the number of available specialized assignments for patrol officers, given the large size of the department.

* The City then argued that the Officer Transfer Policy had to be upheld because it was part of its collective bargaining agreement with the POA. The Ninth Circuit basically said “so what”. It also stated that it did not matter if disregarding the collective bargaining agreement would generate resentment among other officers.

* The bottom line is that the City failed to show that it came within the “business necessity” exception under the ADA.

* The City also argued that its Modified Duty Policy satisfied the requirements of the ADA, since officers in modified duty assignments received the same pay and benefits as other officers. The Ninth Circuit rejected this argument, stating that the ADA entitles a qualified disabled person to try for any assignments and not just undesirable modified duty assignments.