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 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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