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.
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