In spite of “clear evidence” that an employer went “well beyond” the requirements of the Americans with Disabilities Act in trying to accommodate a poorly performing clinical lab assistant, the Equal Employment Opportunity Commission persisted in litigating the case under the ADA, and so must pay the employer $140,571.62, the Tenth Circuit rules, affirming a lower court decision holding the EEOC accountable.

The EEOC had conceded that the disabled employee could not perform the essential functions of her job, the Court notes. However, despite her inability, the Court says the employer continued her employment without reduction of pay or benefits but required only that she perform one portion of the job, an accommodation that was not required under the law: “In essence, it created a new job for her. Creating a new job by eliminating or modifying essential job functions instead of accommodating the job’s essential functions is not required under the ADA.”

As a matter of law she was not a qualified individual with a disability under the ADA because she could perform the essential functions of her job with or without reasonable accommodation, the Court says, further pointing out that the reason she was terminated was due to “repeated errors threatening patient safety.” EEOC v. Tricore Reference Laboratories