The last thing an employer wants to do is play workplace favorites. It’s certain to stir up trouble and resentment, and in some cases, it’s a direct path to a lawsuit. But some courts are pushing employers in that direction, telling them that the rights of disabled employees trump those of nondisabled coworkers who are better qualified.
Here’s the problem. Two years ago, a California Court of Appeals ruled that under California law, employers must prefer disabled employees over more qualified coworkers when the disabled workers seek reassignment as a "reasonable accommodation." In another case, a federal appeals court rightly dubbed that policy "affirmative action with a vengeance" under the Americans with Disabilities Act. Other courts in the federal system, meanwhile, can’t agree on this principle, either.
So as jurists continue arguing, employers have no clear and geographically uniform answer to rely on. You can only hope that the courts in your jurisdiction ultimately will see one thing clearly: that antidiscrimination laws should guarantee disabled individuals an opportunity to compete equally, with or without accommodation. They shouldn’t mandate preferences that infringe upon your right to select the most qualified worker. And they certainly should not sanction the creation of a new class of victims--the nondisabled workers who are more qualified for a position but are passed over in favor of less-qualified disabled people. Preferential treatment for the disabled over more highly qualified persons could result in reverse discrimination in your organization.
Here are some examples of what could happen. These scenarios don’t necessarily reflect the current state of the law, but they are the logical extensions of taking preferential treatment beyond just job-reassignment decisions:
An employer has for years been grooming an African-American candidate for the position of chief accountant. The candidate correctly understands that, after a lengthy stint as second in command, she will eventually take the leadership position. When the job becomes vacant, a disabled employee who no longer can perform her current job and is minimally qualified for the chief accountant position asks for reassignment. If preferential treatment is the rule, the job will go to the less-qualified disabled employee.
Several typists apply for the position of typing supervisor. One is disabled but, as a result of accommodations such as ergonomic office equipment and a voice-recognition word-processing program, meets the minimum job requirements. The others are nondisabled, are better qualified and have more seniority than the disabled employee. But the less qualified typist, with her preferential consideration, must be promoted.
Two graduates of Harvard Law School apply to the Supreme Court to clerk for the Chief Justice. One was first in her class and is not disabled. The other is disabled, with academic credentials that are less impressive but comparable to those of at least some past Supreme Court clerks (that is, she is minimally qualified). The principle of preferential treatment for disabled employees--disability before qualifications--requires that the highest court in the land hire the less qualified applicant.
Two salespeople, one of whom is disabled, work side by side. The disabled employee, whose accommodations include regular time off for physical therapy and a modified work schedule, sells far less than the nondisabled employee. When the economy sours and the employer has to eliminate one sales position, the disabled employee asserts his right to preferential treatment as a reasonable accommodation. Under the principle of preferential treatment, who gets fired? The more productive employee.
There’s no doubt that the reasonable-accommodation requirement should offer some form of special consideration for disabled employees. But there’s a world of difference between consideration, which lets a disabled individual compete on a level playing field with the nondisabled worker, and preferential treatment. The first guarantees equal opportunity. The second erodes the rights of nondisabled workers.
Traditional antidiscrimination principles that underlie laws like Title VII have never questioned the idea that the most qualified applicant has the right to be hired for a vacant position. When disabled employees with inferior qualifications demand preferential treatment to get jobs or promotions, nondisabled employees will claim reverse discrimination. Employers will be stuck, uncertain how to balance the rights of disabled employees against the rights of the nondisabled.
It’s easy to imagine situations in which disabled employees sue their employers because they are not given preferential treatment in reassignment, promotion, hiring and discharge. And it’s just as easy to envision better-qualified employees in other protected categories suing employers for discrimination when they are denied promotion or laid off, their legally protected rights trumped by the purportedly "superior" rights of disabled employees who are, admittedly, less able to do the job.
Here’s what you can do while the law is in flux. Remember that the fundamental rules about disabled employees are not in dispute. Talking to them about their need for possible accommodations remains very important. And continue to consider and implement reasonable accommodations that don’t result in undue hardship. If you are confronted with situations that would require preferential treatment, be sure that you’re up-to-date on the latest rulings in your jurisdiction. That probably means talking to counsel.
But beyond that, schedule some time with legislators, through appropriate organizations and lobbyists. Workplace disability laws afford important protections to disabled applicants and employees, but they shouldn’t guarantee preferential treatment, and lawmakers need to hear that. The law should require a level playing field for all, regardless of disability.
The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.
Workforce Management, August 2003, pp. 15-16 -- Subscribe Now!