An ADA question our clients frequently ask is, “Are job reassignments considered reasonable accommodations even if the new role pays less than the current role?” A recent court case out of Tennessee suggests that YES, lower-paying roles can be reasonable job accommodations if there are no other positions available for which that employee is qualified.
In Cooper v. Dolgencorp LLC (6th Circuit Court of Appeals), a truck driver had a disability (Tourette’s Syndrome) which caused him, at times, to use racist and offensive language involuntarily. The driver was hired to deliver and stock products in stores. The company was aware of the driver’s condition at the time he was hired, but they claimed not to know the full implications of his condition. The driver made deliveries during business hours, which meant he frequently interacted with the store’s customers and associates. As one of the essential functions of his job, the driver was required to provide “excellent customer service” and “foster relationships with account personnel.” However, due to his disability, the driver accumulated several customer complaints after he was heard using offensive language. As a result, the employee met with his boss and a human resource representative, and he decided to take leave under the Family and Medical Leave Act to receive treatment.
After returning from leave, the employee was temporarily placed with another driver to help manage his outbursts by keeping him from interacting with customers and store employees. Once that assignment ended, the employee requested to be put on a specific route as an accommodation under the ADA. However, this alternative route would have also required him to interact with customers and store associates. In response, the company offered him a night-shift position that paid less than the original role into which he was hired but would have alleviated the customer service element of his job. There were no other non-customer facing roles available that paid what he was originally earning at that time. The employee declined the role and left the company. He subsequently sued the company under the ADA for “failure to accommodate, constructive discharge, failure to engage in the interactive process, and retaliation.”
Upon review, the court sided with the employer. Under the ADA, accommodations are considered reasonable if they help the employee complete the essential functions of their job. Here, the employee was unable to provide “excellent customer service” with or without an accommodation. As an alternative, the company offered him another position he was qualified for with a lower pay rate, which he refused. Employers are not required to create new positions for an employee, nor are they required to move them to a new position for which they are otherwise unqualified. Employers are also not required to remove essential functions of the job to accommodate an employee.
Always remember to engage in the interactive process with the employee. If an employee requests an accommodation that you cannot provide, make sure to explore all alternatives in good faith. If you have more questions about job reassignment as an accommodation, and you have our ADA solution, feel free to reach out to your ADA Coach! If you don’t and would like to talk to us about how we can help with the ADA, let us know!
