Numerous questions arise. Must an employer create a new position for a disabledemployee if none exists? May the employee demand that another employee -- perhapsless senior -- be "bumped" from a position in order to create a vacancy?And, most significant, does the ADA require preferential treatment, or affirmativeaction, for disabled employees seeking reassignment? Stephen Sonnenberg,a partner at Paul, Hastings, Janofsky and Walker LLP in Los Angeles who hasexpertise in the ADA, offers some guidance.
- Under what circumstances should an employer reassign a disabled employee?
- Although this area of the law is in flux, courts and the U.S. Equal EmploymentOpportunity Commission agree on some general rules. First, assuming an employeeis disabled within the meaning of the ADA, reassignment may be appropriatewhen the employee is unable to perform the essential functions of his or herjob despite other reasonable accommodations. While some courts have said thatreassignment is an accommodation "of last resort," most agree thatit is one of a variety of accommodations potentially available to disabledemployees.
- Second, employer and employee are free to mutually agree to reassignmentbefore it is clear that the employee cannot remain in her current position.
- Third, an employer's reassignment obligation extends only to vacant positionsthat are comparable in terms of pay and status. If the only available vacantposition pays less, the disabled employee and the employer may agree to sucha reassignment as an accommodation, but the employer is not obligated to compensatethe employee at his prior higher rate of pay. And, courts have held that anemployer need not create a new position or promote an employee if a comparableposition is not vacant. Nor must an employer "bump" another employeealready occupying a position just because a disabled employee requests itas an accommodation.
- Is a "vacant" position one that is presently open or one thatyou know will be open in the future, and must an employer search everywhereand anywhere for such a position?
- A vacant position is one that is presently open or one that will soon be available.According to the EEOC, one month is "soon" but six months is not.As to how widely an employer must search for a vacancy, the EEOC and some courtsdisagree. Nowhere within the organization is too far to look for a vacancy,according to the EEOC, unless undue hardship would result. And while employerscan argue that reassignment should be limited to a specific business unit, location,or department, courts will look to the employer's regular practice regardingtransfer of employees from one facility to another. Before you conclude thata nationwide or worldwide search is necessary, however, consider a practicaltip: identify the disabled employee's self-imposed geographic limitations andconfirm them in writing. Afterwards, limit the company's search in accord withthe employee's wishes.
- Does a disabled employee have to meet the same qualification standards forthe vacant position as non-disabled employees? If so, must an employer providethe disabled employee with training to become qualified?
- The disabled employee must meet the same qualification standards for the vacantposition as a non-disabled employee. However, if an employer does not imposethose qualifications on all non-disabled employees, it risks a discriminationlawsuit by imposing them on disabled employees. For example, requiring all employees,disabled or not, to possess a particular technical certification in order toapply for transfer to a computer-repair position would be entirely legitimate.Imposing the requirement on all disabled applicants while occasionally exemptingnon-disabled applicants could be problematic. Consistency counts. As for training,an employer is not required to train a disabled employee to meet the qualificationsof the vacant position unless it does so for non-disabled employees. Equal trainingopportunities are the key.
- Assume that a disabled employee seeks reassignment to a vacant positionbut can perform the essential job functions of the position only with anotheraccommodation. Must an employer provide the additional accommodation as well?
- Most courts would say yes, as long as the accommodation does not impose an undue hardship on the employer. Keep in mind that for mid- to large-sized companieswith ample resources, establishing undue hardship by relying on cost alone willbe an uphill battle. Remember also that courts tend to evaluate each accommodationrequest on its own merits. Many courts will not be receptive to an employer'sargument that because it already extended multiple accommodations, it does nothave to extend another. Also keep in mind that if a disabled employee asks foran accommodation in order to apply for a vacant position, the employer shouldengage in the interactive process and consider the request like any other.
- A non-disabled employee applies for a vacant position, as does a disabledemployee seeking reassignment as an accommodation. The disabled employee hasless experience, less education, and less-impressive performance reviews,but still meets the minimal qualifications for the position. Must the employergive the job to the disabled employee, rather than the better-qualified non-disabledemployee?
- Employment lawyers and a variety of courts have been hotly debating thisissue. There is much disagreement. The EEOC says yes, reasoning that the ADArequires more of an employer than to merely allow a disabled employee to applyand compete for a vacant position. Without preferential treatment, says theagency, reassignment as an accommodation is inadequate. Some federal courtsof appeal have agreed, such as the Tenth Circuit in Smith v. Midland Brake.But other courts have adamantly disagreed. The Seventh Circuit Court of Appeals,in EEOC v. Humiston-Keeling, rejected the EEOC's position. The courtcharacterized the requirement to hire inferior but minimally qualified applicantsmerely because they are disabled as "affirmative action with a vengeance."
- Employers are truly caught between a rock and a hard place. They can extendpreferential treatment to disabled employees at the expense of non-disabledemployees, regardless of their comparative qualifications. The best-qualifiedindividuals will not necessarily end up in vacant positions, and non-disabledemployees may claim that their purported rights have been infringed. Or, employerscan assist disabled employees in identifying vacant positions for which theyare qualified, accommodate them as necessary in the application process, butinsist in the final analysis that the best-qualified individual, regardlessof disability, be selected for the position. Employers choosing the latteroption will retain their historic right to assign the best-qualified personto the job, but risk failure to accommodate claims by disabled employees.
- So what is an employer to do?
- It is crucial to check with legal counsel to find out how courts -- bothfederal and state -- have ruled on this issue in your area. Currently, theapplicable standard varies, depending on jurisdiction. In fact, it is entirelyconceivable that employers with operations in multiple states will be subjectto contradictory rules, depending on geography. For example, the CaliforniaCourt of Appeal, in Jensen v. Wells Fargo Bank, recently adopted theEEOC's position, but the Seventh Circuit, which includes Illinois, Wisconsin,and Indiana, has not. All employers, and nationwide employers in particular,should carefully weigh the advantage of adopting a uniform practice that passesmuster under the EEOC's standard against the disadvantage of surrenderingtheir right to select the best-qualified person for the job.
- Because this is an area of disability law that is changing literally frommonth to month, be sure to keep up-to-date. This is an issue that will undoubtedlybe the focus of further decisions by appellate courts.
The information contained here is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.
Workforce, October 2001, pp. 90-92 -- Subscribe Now!