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PJC Leads Coalition of Employment and Disability Rights Advocates on Behalf of Elementary School Art Teacher

Austine Fink was an elementary school art teacher when she was diagnosed with a pre-cancerous condition of the esophagus. As a result of her condition and treatment, Ms. Fink could not bend over to work with small children, but she could still teach art. She requested that her employer, a public school district, transfer her to a vacant art teaching position in a high school for which she was qualified. However, the school district made no attempt to reassign her to that position, or to another similar position that opened up several weeks later. Instead, the school district relegated Ms. Fink to an inferior substitute teaching role, where she remained for months.
 
Ms. Fink filed suit in federal district court, asserting that she had a right to reassignment as a form reasonable accommodation under the Americans with Disabilities Act (ADA).  The district court ruled for the school district, finding that Ms. Fink had no right to reassignment. Ms. Fink appealed to the Court of Appeals for the Fourth Circuit (Fink v. Richmond, Nos. 09-2216, 09-2269).
 
On April 15, 2010, the Public Justice Center led a coalition of employment and disability rights advocates, including the Disability Rights and Education Defense Fund, American Cancer Society/American Cancer Society Cancer Action Network, Maryland Disability Law Center, and the Legal Aid Society – Employment Law Center, to file a friend-of-the-court brief in support of Ms. Fink. The brief, written by Murnaghan Appellate Advocacy Fellow Monisha Cherayil, first urged the Fourth Circuit to join the majority of federal Courts of Appeals and hold that reassignment is one statutorily-mandated form of reasonable accommodation. Additionally, the brief argued that an employer cannot merely require an employee with a disability to compete for a vacant position for which the employee is qualified; pursuant to the duty to reasonably accommodate, the employer must offer the position to the employee before considering other applicants. Only through this approach can courts advance Congress’ goal of avoiding unnecessary exclusion of individuals with disabilities from the workplace.

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