The ADA’s “Reassignment” Provision: A Suggestion Or A Requirement?
Employers are often confronted with scenarios in which a disability prevents an employee from continuing to perform his or her essential job duties, but the employer has another position available that the employee is able and qualified to perform. In these circumstances, is the employer required to offer the employee the new position, or need it merely give the employee an opportunity to interview for the job along with other candidates?
For employers in Massachusetts and elsewhere in the First Circuit, the answer could well be the former. In a recent decision, Audette v. Town of Plymouth, 858 F.3d 13 (1st Cir. 2017), the First Circuit suggested – without actually holding -- that, in such circumstances, the Americans With Disabilities Act (“ADA”) generally requires an employer to give a disabled employee preference over other candidates for a vacant position that the employee is qualified to perform.
The ADA protects “qualified individual[s]” from discrimination in employment based on disability. A qualified individual under the ADA is anyone “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C., §§ 12111(8), 12112(a).
If a disabled employee meets the definition of a “qualified individual,” the employer is required to provide the employee with a reasonable accommodation for his or her known limitations. (This includes both physical and mental limitations.) The employer’s obligation to provide an accommodation, however, is not absolute. Employers are not required to accommodate employees where an employee’s requested accommodation would impose an undue hardship on the employer’s business.
Under the ADA, a reasonable accommodation “may include … reassignment to a vacant position …” 42 U.S.C., § 12111(9). As indicated by the word “may,” the ADA does not expressly state whether an employer must automatically offer a disabled employee reassignment to a vacant position as a reasonable accommodation, or must simply give the employee an opportunity to apply and compete for the position along with other candidates.
The EEOC’s And Courts’ Positions
In a 2002 decision, U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 406 (2002), the Supreme Court held that if automatically offering an open, alternative position to a disabled employee would be inconsistent with an employer’s established seniority system, the employer “ordinarily” is not required to offer the employee the open position. The Court, however, did not reach the issue of a disabled employee’s reassignment rights where no such seniority considerations are involved.
In the absence of clear guidance from Congress or the Supreme Court on this issue, the Equal Employment Opportunity Commission (“EEOC”) and federal courts have reached conflicting conclusions.
The EEOC takes the position, in its Enforcement Guidance, that a qualified disabled employee who can no longer perform the essential functions of his or her current position is entitled to be offered a suitable, vacant position. The EEOC stresses that the disabled employee does not have to be the best qualified candidate for the position in order to be entitled to reassignment.
Further, the EEOC interprets the ADA as placing an affirmative obligation on an employer to inform a disabled employee about vacant positions that he or she may be qualified to fill. The EEOC indicates that an employer should ask a disabled employee about his or her qualifications and interests to help identify vacant positions that might be a fit.
Courts of Appeal.
Some federal circuit courts have adopted the EEOC’s position that an employer must offer a suitable, vacant position to a qualified disabled employee. For instance, in Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999), the Tenth Circuit held that “reassignment” under the ADA means more than allowing a disabled employee the same opportunity as anyone else to apply for a vacant position. Rather, if a disabled employee is no longer able to perform the responsibilities of his or her current position, but is qualified for a vacant position, the opportunity for reassignment must be offered to the employee.
Similarly, the D.C. Circuit has held that an employer must do more than simply permit a disabled employee to compete for a job opening with other candidates. See, e.g., Aka v. Washington Hosp. Ctr., 156 F.3d 1284 (D.C. Cir. 1998). Indeed, and in agreement with the EEOC, a D.C. federal district court judge opined that an employer has an affirmative responsibility to search for open positions that would be suitable for a disabled employee. Alston v. Washington Metro. Area Transit Auth., 571 F. Supp. 2d 77 (D.D.C. 2008).
The Seventh Circuit has also followed the EEOC’s lead, holding that “the ADA requires employers to appoint disabled employees to vacant positions, provided that such accommodations would not create an undue hardship (or run afoul of a collective bargaining agreement).” E.E.O.C. v. United Airlines, Inc., 693 F.3d 760, 765 (7th Cir. 2012). See also Brown v. Milwaukee Board of School Directors, 855 F. 3d 818, 820 (7th Cir. 2017) (“A disabled employee need not be the most qualified applicant for a vacant position, but she must be qualified for it.”)
Conversely, other federal circuit courts, including the Eighth and Eleventh Circuits, have held that while an employer may simply reassign a disabled employee to a vacant position, the employer is not required to do so if there is a better qualified candidate for the position. The Eighth Circuit reached this conclusion in Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 483 (8th Cir. 2007), holding that “[t]he ADA is not an affirmative action statute and does not require an employer to reassign a qualified disabled employee to a vacant position when such a reassignment would violate a legitimate nondiscriminatory policy of the employer to hire the most qualified candidate.”
Similarly, the Eleventh Circuit recently held that a hospital was not required to reassign a disabled nurse to another unit without having to compete against other candidates, as this would have violated the hospital’s best-qualified applicant policy. E.E.O.C. v. St. Joseph’s Hospital, Inc., 842 F.3d 1333, 1346 (11th Cir. 2016). The court stated that “[t]he ADA does not require reassignment without competition …” Id. at 1345.
The First Circuit has not yet directly confronted this issue. However, a footnote in the recent Audette decision suggests that if the First Circuit were to visit this specific question, it would rule in favor of mandatory reassignment.
In Audette, the First Circuit held that an injured police officer’s requested reassignment to a new position was not a reasonable accommodation under the ADA because the officer failed to show that any suitable vacancies existed. However, the court stated in a footnote that “accommodating disabled employees who can no longer perform the essential functions of their current job, with or without a reasonable accommodation, by allowing them to transfer to a vacant position whose essential functions they can perform” is “one of the purposes of the ADA.” Audette, 858 F.3d at 22 n. 10. The court went on to observe that “a number of our sister circuits have held that the ADA requires such an interpretation.” Id. (emphasis added).
Accordingly, while this portion of the Audette decision is dictum, employers in Massachusetts and elsewhere in the First Circuit should anticipate that, in an appropriate case, the First Circuit might well conclude that an employer is obligated to allow a disabled employee to transfer to another suitable, vacant position, without having to compete against other candidates.
Implications For Employers
Until the Supreme Court issues a definitive ruling on the issue, employers’ obligations under the ADA concerning reassigning disabled employees are likely to remain murky. However, in light of the EEOC’s position, the majority trend among the circuit courts, and the First Circuit’s dictum in Audette, employers would be wise to proceed with caution in refusing a disabled employee an opportunity to transfer into an available, suitable position.
Employers are encouraged to consult experienced employment counsel to assist them in determining whether a disabled employee is qualified for a vacant position, and, if so, whether the employee should be offered the position outright or simply given an opportunity to apply and interview for it.
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A previous version of this article appeared in New England In House (NEIH). The Firm is grateful to NEIH for its support.