Of the many contentious accommodation issues under the Americans with Disabilities Act (ADA), perhaps the most hotly debated is whether reassignment to a vacant position is a reasonable accommodation. Although the ADA lists “reassignment” as a possible accommodation and the Equal Employment Opportunity Commission (EEOC) supports that position, many courts have been reluctant to accept this part of an ambiguous statute at face value. The abiding issues are whether disability “trumped” all other work-related factors and whether the disabled had a superior place among protected groups.
It isn’t difficult to imagine the kinds of conflicts reassignment as an accommodation creates. What if:
- The disabled employee is minimally qualified with few hopes of improvement?
- There are better-qualified candidates who had bid for the open job?
- Among the better-qualified candidates are members of other statutorily protected groups (e.g., racial minorities, women, foreign- born workers, or individuals over 40)?
- Among the better-qualified protected employees there are other disabled employees who don’t need an accommodation to do the job?
The possibilities are endless, and the legal liabilities are complicated. In the face of all that, many courts have tried to create a balancing test among the factors that ultimately put disabled employees on par with others seeking the vacant position. The leading case among those (and the one most quoted) is EEOC v. Humiston-Keeling, in which the redoubtable Judge Richard Posner wrote that the reassignment provision of the ADA was nothing less than “affirmative action with a vengeance.”
Supreme Court gets involved
The situation became even more complicated in 2002 when the U.S. Supreme Court tried to balance the rights and obligations under a collective bargaining agreement (CBA) (which contemplated reassignment based on seniority) and the requirements of the ADA in US Airways Inc. v. Barnett. Although the main goal of the holding was to find a way to respect CBAs, along the way, the Supreme Court approvingly noted that reassignment was a legitimate preference established by the ADA and wrote that the standards of “undue hardship” had to be met to evade the reassignment obligation.
At the root of the legal debate was whether an employee who couldn’t perform the essential functions of the job even with an accommodation remained a “qualified individual” under the ADA. After all, the Act was designed to help “qualified individuals with a disability” find and keep jobs they could do; it doesn’t provide a promise of permanent employment regardless of the circumstances.
Does 7th Circuit ruling signal change?
In a recent case involving reassignment, a three-judge panel of the 7th Circuit felt itself bound by the ruling in the Humiston-Keeling case but pleaded for the full court to reexamine its holding in light of the Barnett decision. The plea was answered. In EEOC v. United Airlines Inc., the 7th Circuit overruled the Humiston-Keeling decision, noting: “The Supreme Court [in the Barnett decision] has found that accommodation through appointment to a vacant position is reasonable. . . . Absent a showing of undue hardship, an employer must implement such a reassignment policy.”
It remains to be seen whether the tumbling of this last bastion precedes a wave of requests for reassignment and an ensuing tide of litigation. Past practice indicates that may not happen. There still must be a vacant position at the right time, no employer needs to invent a job just to keep somebody on the payroll, and the employee still must be able to do the job with or without an accommodation and take whatever the new job pays. All those conditions must align before the idea of reassignment can even begin to take shape, and for many employers, that’s like waiting for a solar eclipse.
Burton J. Fishman is an attorney with Fortney & Scott, LLC. He has devoted his practice to developing the “law of the workplace,” an interdisciplinary approach that offers employers counsel and representation on a broad range of matters growing out of government regulation of business. He can be contacted at firstname.lastname@example.org.