During our coaching sessions, clients often ask “do we have to offer a disabled employee a different position if she can no longer perform her essential job duties?” This is quite a hot-button topic for the courts and a vexing issue for employers. That is because, over the years, the courts have split over whether or not job reassignment is required as a reasonable accommodation under the ADA.
There are essentially two different camps. In one, some federal appellate courts applied what has been called the “competitive reassignment” standard. Competitive reassignment means that, according to these courts, the ADA does not require employers to provide employees with a comparable position as a reasonable accommodation, even if the employee is qualified for the alternative role. Instead, the employee must apply for the position and be considered on equal footing with other candidates. In EEOC v. Methodist Hospital of Dallas, for example, the Fifth Circuit Court of Appeals ruled that the employer’s decision to hire the most qualified candidate did not violate the ADA, even though the employee, who was disabled and unable to perform her current job duties, had requested reassignment to a vacant position.
In contrast, the other camp follows what is often referred to as the “preferential treatment” standard that requires employers to place a qualified employee into a vacant position without a competitive process. This approach was applied recently by the Eleventh Circuit Court of Appeals in EEOC v. Shelby Baptist Medical Center where the employee sued the employer for disability discrimination and retaliation after they failed to offer her a different position as a reasonable accommodation. Other courts have also applied the “preferential treatment” standard and, in this case, the employer settled.
In Shelby, the lawsuit alleged that the hospital system illegally discriminated against a behavioral health technician with degenerative disc disease, which impaired her ability to perform her existing job functions. The technician requested reassignment to a vacant position for which she was qualified. Instead of accommodating her through reassignment, the hospital denied the accommodation and fired the technician. Here, the lawsuit was settled in a consent decree requiring Shelby Baptist to pay the technician $60,000 in lost earnings and compensatory damages. Additionally, the two-year decree requires the hospital, along with four others in their health system, to take steps to prevent future discrimination by improving their policies and practices and training their employees on the ADA.
In the meantime, the issue of “job reassignment” as an accommodation will continue to be a jumble and a challenge depending upon which court decides the matter. It is paramount for employers to consider whether they can reasonably accommodate the employee. For employers with our ADA workplace service, connect with your ADA Coach to determine how best to address situations where reassignment should be considered. We will be sure to keep you posted as the courts continue to develop this area of the law!
