Imagine that you have an employee who becomes disabled and can no longer perform the job’s essential functions. Being the good employer that you are, consistent with the Americans with Disabilities Act, you engage the employee in an interactive dialogue to explore possible reasonable accommodations. After a lot of back and forth, the only possibility is a transfer to another director position.
Except, here’s the thing.
While the disabled employee is qualified for the open position, you’ve already posted it internally and have a more qualified applicant. So, here’s the question:
Does the ADA require that the company accommodate the disabled employee with the transfer? Or can you offer the position to the other candidate?
Hey, before we answer today’s question, how about the results of last week’s Thanksgiving survey? Last Wednesday, I asked you to name your top Thanksgiving foods. Here are the winners:
- The winner was roasted turkey in the protein bracket, with about 63% of the overall vote.
- The winner was stuffing in the starch bracket, with just less than half of the overall vote.
- I judged and eye-rolled the 35.6% that voted green bean casserole number one in the veggie bracket.
- In the dessert/booze bracket, pumpkin pie prevailed with about 1/3rd of the vote.
And your overall champion was stuffing.
As the great Connor MacLeod would say, there can be only one.
And as the Fourth Circuit Court of Appeals said a few weeks ago, the “one” is the more qualified candidate (cue music):
Reassignment … respects core values underlying the ADA and employment law more generally. It recognizes that basic fairness in such a context rests atop an often-rickety three-legged stool, whose legs are the employer, the disabled employee, and — easiest to neglect — the other employees. First, consider the employer. Allowing other reasonable forms of accommodation to take precedence over reassignment protects the employer’s discretion over hiring. This discretion is what makes it possible for the employer to discharge its responsibility to promote workplace stability as its workforce changes over time, and — to the extent appropriate — to reward merit through predictable advancement. Such discretion is also fundamental to the employer’s freedom to run its business in an economically viable way.
Rickety stool, eh? Good thing that I have a standing desk at home. Anyway, let’s fast forward to the court’s crescendo:
Although an employer may accommodate through reassignment at any point, reassignment’s last-resort status encourages employers to take reasonable measures to accommodate their disabled employees in the positions they already hold. The employee is thereby saved from being hurled into an unfamiliar position with a different set of demands; instead, he is allowed to maintain and to grow the investment he has already made in his present job.
Finally, deemphasizing reassignment helps preserve a fair balance in the relationship between a disabled employee and his colleagues. Reassignment is unique in its potential to disrupt the settled expectations of other employees, so much so that no employer is required to reassign where reassignment would “bump” another employee from his position, or block reasonable, long-time workplace expectations. Holding reassignment in reserve for unusual circumstances bolsters the confidence of other employees that the misfortune of a colleague will not unfairly deprive them of opportunities for which they themselves have labored. In this way, not only fairness, but also workplace comity and morale are well served.
In other words, if you have an established pattern or practice of promoting from within, or maybe just a seniority system, that takes priority over reassignment as an ADA reasonable accommodation.
Reassignment may be a measure of last resort, but employers must explore other possible accommodation options with an employee too. Plus, your mileage may vary because not all circuit courts agree with the Fourth Circuit’s rationale. For example, others, like the Tenth Circuit, have concluded that a qualified individual with a disability has a right to the reassignment, even if it means displacing a more qualified candidate. That said, reassignment is only a reasonable accommodation when the disabled employee is qualified to perform the open position’s essential functions. Plus, you don’t have to create a position from scratch if one isn’t already available.
So, yeah, it depends.
[Ducks tomato; bills 0.1].