Reasonable Accommodation: Reassignment
The ADA requires covered employers to provide “reasonable accommodation” to qualified applicants and employees with disabilities, and the statute specifically includes “reassignment to a vacant position” as an example of an accommodation. The U.S. Equal Employment Opportunity Commission (EEOC) further outlines their interpretation of reassignment in their regulations and guidance material.
According to the EEOC:
Reassignment is generally an accommodation of last resort, and is usually considered only when no other type of reasonable accommodation would enable a worker to continue in his current job.
A job must exist and be vacant to be considered for reassignment; an employer does not need to create a job or displace another worker.
Reassignment should be to a position that is as equivalent as possible in terms of pay, benefits, status, location, and other working conditions.
If there is no vacant job that is equivalent to the worker’s current job, an employer may offer a lower-level job if one is available; an employer does not have to offer a promotion. If a worker is reassigned to a lower-level job, the employer does not have to maintain a higher rate of pay, better benefits, or other more favorable conditions that were associated with the old position, except to the extent the employer routinely does so for workers without disabilities being moved into such positions.
A worker must be qualified for the new position; that is, she must meet the minimum job-related requirements, and be able to perform the essential functions of the job, with or without other types of reasonable accommodation in the new position. However, she does not need to be the best qualified candidate for the job; she does not need to compete with other applicants. She doesn’t need to compete with other employees seeking transfers, either, unless another employee has seniority in a workplace that has a consistently applied seniority system.
An employer does not need to provide training or other assistance to enable a worker to become qualified for a job, except to the same extent that such training or assistance is typically provided to others being hired or transferred.
Many employers have challenged the EEOC’s view that reassignment should be non-competitive. Employers have argued that implementing reassignment as outlined by the EEOC – giving preference to workers with disabilities over others who may be more qualified – amounts to affirmative action, which the ADA does not generally require.
Additionally, some employers have asserted that giving preference in reassignment to workers with disabilities imposes an undue hardship, because not being able to place the best possible job candidates undermines the employers’ ability to function at optimal levels.
The EEOC and the Department of Justice have argued that while giving preferential treatment to individuals with disabilities is not required in most employment situations, reasonable accommodation is different by its very nature and definition. Reasonable accommodation means doing unique things for workers with disabilities.
The ADA lists a number of examples of reasonable accommodation along with reassignment, including making existing facilities accessible, job restructuring, modifying work schedules, acquiring equipment or devices, providing readers or interpreters, and making appropriate adjustments to tests, training materials, or policies.
These and other forms of accommodation are intended to be implemented on an individualized basis. If an employer, for example, can reasonably adjust the work schedule of an employee with a disability to enable him to continue performing his job, it doesn’t mean the employer changes all employees’ schedules or allows employees to work whatever schedules they like.
If some preference were not given in implementing reassignment for a worker with a disability, then the reassignment would not really be a form of accommodation. Allowing an individual to compete for a vacancy is merely non-discrimination. Without preference, “reassignment would be of little value and would not be implemented as Congress intended.”1
The Courts Split
Several federal circuit courts (which hear appeals from district courts) have agreed with employers and held that reassignment simply requires employers to allow employees with disabilities to compete with other applicants. The 11th Circuit Court (encompassing the states of Florida, Georgia, and Alabama), the 8th (Arkansas, Missouri, Iowa, Minnesota, Nebraska, South Dakota, and North Dakota), the 6th (Kentucky, Tennessee, Ohio, and Michigan), and the 5th (Mississippi, Louisiana, and Texas) have all issued similar rulings.
On the other hand, the 10th (Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah), 7th (Indiana, Illinois, and Wisconsin), and the District of Columbia circuit courts have agreed with the government’s position and held that reassignment, like other forms of reasonable accommodation, must often entail more than mere equal treatment to ensure equal opportunity. Taking positive steps, making adjustments, or providing things not typically provided to all workers (or “preference”) is inherent in the concept of reasonable accommodation.
Other than in the District of Columbia, no appeals court in our Mid-Atlantic region has yet tackled this issue. However, within the 4th Circuit (which includes Maryland, Virginia, West Virginia, North Carolina, and South Carolina) at least two district courts have addressed the question, and each has held that preference is not required in reassigning employees with disabilities where an employer has non-discriminatory policies related to hiring, transfers, and assignments.2
A case may eventually make its way to the Supreme Court and resolve this split among the lower courts, but meantime we may continue to see debate and conflicting rulings on this issue.
1 Equal Employment Opportunity Commission (EEOC) Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA
2 Eastern District of Virginia in United States v Woody (Richmond City Sheriff’s Office), and Western District of North Carolina in Elledge v Lowe’s Home Centers, LLC