Enabling the Disabled: Reassignment Under the ADA
ssume your client calls
with a question: The company has a disabled employee who can no longer
continue in her current position, even with an accommodation, because of
a disability. Another job becomes vacant. The disabled employee is
qualified for this job, but the company would prefer to transfer a
nondisabled employee because it believes he is more qualified. What do
you advise?
Most courts, including the Seventh Circuit, have ruled that employers
must consider reassignment for disabled employees who can no longer
remain in their current positions.1 But what
does that mean? This article explores judicial and administrative
interpretations of when the Americans with
Disabilities Act (ADA) requires reassignment. Ultimately, we
conclude that disabled employees should be transferred into any position
for which they are qualified, regardless of whether a nondisabled
employee may be more qualified, provided that the transfer does not
violate a bona fide seniority policy, a transfer policy, or a collective
bargaining agreement.
Employer's Obligation to Reassign
Although most courts agree that employers must consider reassigning
disabled employees, few courts have defined what that means. Several
courts have defined the duty to reassign only in the negative,
explaining what an employer is not required to do. There is a consensus
among federal courts that the obligation to reassign does not
inlude:
- reassigning a disabled employee to a position for which he or she is
not qualified;2
- bumping a nondisabled employee from the position he or she currently
holds;3
- creating a new position for the disabled employee;4
- promoting a disabled employee;5 or
- violating legitimate transfer policies, seniority policies,
provisions of a collective bargaining agreement, or thelegitimate
contract rights of nondisabled employees.6
Fortunately, some courts have given employers a little guidance on
the steps they must take to fulfill their obligation to reassign. The
Seventh Circuit has ruled that the ADA may require reassignment to a
completely different job, including a position in a different
department, office, or facility.7 In fact,
the obligation to reassign conceivably could extend to any lateral or
lower-ranking position for which a disabled employee is
qualified.8
Aka v. Washington Hospital Center
The most comprehensive discussion of reassignment under the ADA comes
from the D.C. Circuit's en bancdecision in Aka
v. Washington Hosp. Ctr.1 Mr. Aka
was an orderly who could no longer perform the essential functions of
his job, even with an accommodation, because of bypass surgery.10 Aka asked the hospital for a transfer, stating
that he wished to remain employed, in any capacity, to maintain his
pension.11 One of the positions to which
Aka sought a transfer was a file clerk job. Even though Aka met the
minimum qualifications of this position, he was not given any of four
vacant file clerk positions.12The hospital
filled each of these vacancies with a nondisabled employee whom it
believed to be more qualified.13
The hospital offered several justifications for its refusal to
transfer Aka into any of these vacant positions. First, the hospital
argued that Aka's inability to perform the duties of his orderly job
meant that he was not a qualified individual with a disability and,
thus, was not entitled to any accommodation.14 Relying on several Seventh Circuit decisions,
guidance from the Equal Employment Opportunity Commission (EEOC), and
the ADA's legislative history, the court rejected this argument.
Reassignment must be an option for disabled employees who cannot remain
in their current positions.
The hospital then argued that it fully complied with the ADA because
it did not deny Aka any of the file clerk positions because of his
disability.15 Both the hospital and the
dissenting judges took the position that an employer satisfies its
obligation to reassign if the employer simply allows disabled employees
to compete equally with nondisabled employees for vacant
positions.16 The majority found several
reasons to reject this interpretation.
First, the court found that the ADA's plain language undermined this
interpretation. The statute specifically mentions reassignment as a
possible accommodation. The court reasoned that an employer who does
nothing more than allow a disabled employee to compete equally with
other employees for position has not "reassigned" that employee: "[T]he
word 'reassign' must mean more than allowing an employee to apply for a
job on the same basis as everyone else."17
Since the ADA already prohibits discrimination against disabled people
in the application process, the inclusion of reassignment as a possible
accommodation is meaningless if reassignment means only that disabled
employees be allowed to compete equally with nondisabled people for
vacant jobs.
The majority also rejected the argument that its interpretation of
reassignment created an impermissible preference for disabled
employees.18 After exhaustively reviewing
the ADA's legislative history, the majority concluded that the ADA
requires employers to do more for employees than they must do for
applicants.19 Because of this, in some
cases the ADA will compel the transfer of a qualified disabled employee
over an arguably more qualified, nondisabled employee.20
Although the Seventh Circuit Court of Appeals has not yet
been asked to address the precise question raised in Aka, the
Seventh Circuit has discussed at some length the scope of an employer's
obligation to reassign, and those decisions are consistent with
Aka. The Seventh Circuit has ruled on several occasions that
reassignment must be an option for disabled employees who can no longer
continue in their current positions.21
The Seventh Circuit also has given employers some guidance on the
range of jobs to which the ADA may require reassignment:
"The employer must first identify the full range of alternative
positions for which the individual satisfies the employer's legitimate,
nondiscriminatory prerequisites, and then determine whether the
employee's own knowledge, skills, and abilities will enable her to
perform the essential functions of any of these alternative positions
with or without reasonable accommodation. The employer's duty to
accommodate requires it to consider transferring the employee to any of
these other jobs, including those that represent a demotion.
"[T]he 'broad range' of jobs to which an employer must look when
considering transfer as a reasonable accommodation for a disabled
employee is bounded from above by the employer's freedom not to offer a
promotion and from below by its legitimate, nondiscriminatory
limitations on lateral transfers and promotions."22
The Seventh Circuit's decisions in this area foreshadowed the
analysis of the D.C. Circuit in Aka.
Is Aka Right?
Aka's interpretation of the ADA is not an aberration. When
Congress enacted the ADA, one of its overriding purposes was to create
employment opportunities for disabled employees who could work and
wanted to work.23 Reassignment was
specifically included as a possible accommodation employers must
consider to make sure that qualified disabled employees remained
employed.24
Aka also is consistent with the EEOC's interpretation of the
ADA. In March 1999 the EEOC issued a Policy Guidance on
Reasonable Accommodation under the ADA.25 In that guidance, the Commission restated its
position that reassignment should be considered for any employee who can
no longer perform the essential functions of his or her position because
of a disability.26The Commission also
explicitly stated that reassignment requires more than simply allowing
disabed employees to compete equally with nondisabled employees for
vacant jobs:
"Reassignment means that the disabled employee gets the vacant
position if s/he is qualified for it. Otherwise, reassignment would be
of little value and would not be implemented as Congress
intended."27
Finally, in June 1999 the Tenth Circuit Court of Appeals, sitting en
banc, relied heavily on Aka and the EEOC's policy guidance to
reverse a panel's decision.28 In Smith v. Midland Brake
Inc. the Tenth Circuit agreed that reassignment must be an
option for disabled employees who cannot remain in their current
positions.29 Quoting from Aka and
the EEOC's policy guidance, the court ruled that reassignment means more
than simply allowing disabled employees to compete equally with the
nondisabled for vacant positions.30 It is
probable that the Seventh Circuit will build on its prior decisions in
this area to follow the lead of Midland Brake and
Aka.
Practical Considerations
Any time an employer is faced with a disabled employee who can no
longer remain in his or her current position, the employer should ask
two questions: a) Is there any accommodation that would allow this
employee to stay in his or her current position? and, if not, b) is
there any vacant position this employee is qualified and able to do with
or without an accommodation?
Reassignment should be considered only after every avenue of
accommodating the employee in his or her current position has been
exhausted. To determine if a disabled employee can be accommodated in
his or her current position, the employer should review all relevant
medical information. The employer should meet with the employee to agree
on the essential functions of the employee's current job; the physical,
mental, or emotional demands of that position; and the way in which the
employee's condition creates challenges or barriers to performing those
essential functions. Depending upon the circumstances, health-care
providers and outside consultants may need to be consulted to discuss
possible accommodations.
After possible accommodations have been identified, the employer
should analyze whether any of these accommodations would create an undue
hardship. Those accommodations can be eliminated. Employers are free to
choose among any remaining accommodations, even if the chosen
accommodation is not the disabled employee's first choice.
If there is no accommodation that allows a disabled employee to
remain in his or her current position without undue hardship, the
employer and employee should discuss the employee's qualifications for
any vacant position. There also may be an obligation to analyze the
employee's qualifications for positions that will become vacant within a
reasonable time. For example, assume a collective bargaining agreement
creates an entitlement to a 12-month medical leave of absence. If an
employee is on a medical leave of absence because of an inability to
perform the essential functions of his or her position, and the disabled
employee is not qualified for any currently vacant position, there may
be an obligation to consider transferring the disabled employee into a
position that becomes vacant during the medical leave of absence. The
EEOC has taken this approach in its interpretive guidance.31
The EEOC's new guidance also addresses the situation in which an
employer already has posted a vacant position for which a disabled
employee is qualified. The ADA requires employers to consider
reassignment to any vacant position.32In
its guidance, the ommission has stated: "A position is considered vacant
even if an employer has posted a notice or announcement and is seeking
applications for that position."33 Even if
the posting process has begun, the position is vacant and an employer
must consider the disabled employee for the opening. If the disabled
employee is capable of filling the position, the employer has an
obligation to place the disabled employee in that position, even if the
disabled employee has not signed the posting and/or the employer
considers another nondisabled candidate to be better qualified.
Conclusion
The ADA's goal is to eliminate those barriers that prevent disabled
people from fully participating in society. To achieve this goal in the
employment context, the ADA compels employers to consider reassigning
disabled employees as a preferable alternative to their unemployment.
The obligation to reassign is an affirmative obligation that may, in
some cases, entitle disabled employees to "special privileges." However,
based on the ADA's legislative history, judicial interpretation, and the
EEOC's interpretation, employers must reassign qualified disabled
employees, even at the expense of a more qualified, nondisabled
applicant, if the duty to reassign is to mean anything.
Endnotes
1Dalton v.
Isuzu-Suburu Automotive Inc., 141 F.3d 667, 676 (7th Cir.
1998); Gile v.
United Airlines, 95 F.3d 492, 498 (7th Cir. 1996); Hendricks-Robinson v. Excel Corp.,
154 F.3d 685, 693 (7th Cir. 1998). See also, Benson v.
Northwest Airlines Inc., 62 F.3d 1108, 1114 (8th Cir. 1995);
Daugherty v. City of El Paso, 56 F.3d 695, 698-99 (5th Cir.
1995).
2Aka
v. Washington Hosp. Ctr., 156 F.3d 1284, 1305 (D.C. Cir. 1998);
Baert v.
Euclid Beverage Ltd., 149 F.3d 626, 633 (7th Cir. 1998);
Dalton, 141 F.3d at 678; Gile, 95 F.3d at 499.
3Aka, 156 F.3d at 1305;
Baert, 149 F.3d at 633; Dalton, 141 F.3d at 678;
Eckles v.
Consolidated Rail Corp., 94 F.3d 1041, 1047 (7th Cir. 1996);
Gile, 95 F.3d at 499; McCreary v.
Libbey-Owens Ford Co., 132 F.3d 1159, 1165 (7th Cir. 1997).
4Aka, 156 F.3d at 1305;
Baert, 149 F.3d at 633; Benson, 62 F.3d at 1114;
Foreman
v. Babcock & Wilcox Co., 117 F.3d 800, 809 (5th Cir. 1997);
Gile, 95 F.3d at 499; McCreary, 132 F.3d at 1165.
5Malabarba
v. Chicago Tribune Co., 149 F.3d 690, 699 (7th Cir. 1998);
Dalton, 141 F.3d at 679.
6Aka, 156 F.3d at 1305;
Barnett v. U.S. Air Inc., 157 F.3d 744,
751 (9th Cir. 1998); Benson, 62 F.3d at 1144; Dalton,
141 F.3d at 678-79; Eckles, 94 F.3d at 1050.
7Gile, 95 F.3d at
497-98.
8Id.
9156 F.3d 1284 (D.C. Cir.
1998).
10Id. at 1256, 1300,
n.22.
11Id. at 1286 n.1.
12Id. at 1287.
13Id.
14Id. at 1300.
15Id. at 1303,
1311-12.
16Id. at 1311-12.
17Id. 1302, 1304.
18Id. at 1304-05.
19Id. 1304-05.
20Id.
21Cochrum v.
Old Ben Coal Co., 102 F.3d 908, 913 (7th Cir. 1996); Dalton v. Isuzu-Suburu Automotive
Inc., 141 F.3d 667, 676 (7th Cir. 1998); Gile v. United Airlines, 95 F.3d 492,
498 (7th Cir. 1996); and Hendricks-Robinson
v. Excel Corp., 154 F.3d 685, 693 (7th Cir. 1998).
22Dalton, 141 F.3d at
678-79. See also, DePaoli v.
Abbott Laboratories, 140 F.3d 668, 674-75 (7th Cir. 1998).
23S. Rep. 101-116 at 9; H.R. Rep.
101-485 (II) at 32-34.
24S. Rep. 101-116 at 9. See
also, H.R. Rep. 101-485 (II) at 32-34.
25Ida L. Castro, Chairwoman,
EEOC Policy Guidance on Reasonable Accommodation
Under the ADA, 40 Daily Lab. Rep. 1 (March 2, 1999)
26Id. at 71-74.
27Id. at 75.
28Smith v.
Midland Brake Inc., ___ F.3d ___, 1999 WL 387498 (10th Cir.
June 14, 1999) (en banc).
29Id. at *2.
30Id. at *4-*6.
31Id. 29
C.F.R. § 1630.2(o) app.
3242 U.S.C. §
12112(b)(5)(A).
33Castro, EEOC Policy
Guidance, 40 Daily Lab. Rep. 1, 77.
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