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 offered several justifications for its refusal to transfer Aka into any of these vacant positions. First, the hospital argued that Aka's inability to perform the duties of his orderly job meant that he was not a qualified individual with a disability and, thus, was not entitled to any accommodation.¹⁴ Relying on several Seventh Circuit decisions, guidance from the Equal Employment Opportunity Commission (EEOC), and the ADA's legislative history, the court rejected this argument. Reassignment must be an option for disabled employees who cannot remain in their current positions.

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.

Practical Considerations

Any time an employer is faced with a disabled employee who can no longer remain in his or her current position, the employer should ask two questions: a) Is there any accommodation that would allow this employee to stay in his or her current position? and, if not, b) is there any vacant position this employee is qualified and able to do with or without an accommodation?

Reassignment should be considered only after every avenue of accommodating the employee in his or her current position has been exhausted. To determine if a disabled employee can be accommodated in his or her current position, the employer should review all relevant medical information. The employer should meet with the employee to agree on the essential functions of the employee's current job; the physical, mental, or emotional demands of that position; and the way in which the employee's condition creates challenges or barriers to performing those essential functions. Depending upon the circumstances, health-care providers and outside consultants may need to be consulted to discuss possible accommodations.

After possible accommodations have been identified, the employer should analyze whether any of these accommodations would create an undue hardship. Those accommodations can be eliminated. Employers are free to choose among any remaining accommodations, even if the chosen accommodation is not the disabled employee's first choice.

If there is no accommodation that allows a disabled employee to remain in his or her current position without undue hardship, the employer and employee should discuss the employee's qualifications for any vacant position. There also may be an obligation to analyze the employee's qualifications for positions that will become vacant within a reasonable time. For example, assume a collective bargaining agreement creates an entitlement to a 12-month medical leave of absence. If an employee is on a medical leave of absence because of an inability to perform the essential functions of his or her position, and the disabled employee is not qualified for any currently vacant position, there may be an obligation to consider transferring the disabled employee into a position that becomes vacant during the medical leave of absence. The EEOC has taken this approach in its interpretive guidance.³¹

The EEOC's new guidance also addresses the situation in which an employer already has posted a vacant position for which a disabled employee is qualified. The ADA requires employers to consider reassignment to any vacant position.³²In its guidance, the ommission has stated: "A position is considered vacant even if an employer has posted a notice or announcement and is seeking applications for that position."³³ Even if the posting process has begun, the position is vacant and an employer must consider the disabled employee for the opening. If the disabled employee is capable of filling the position, the employer has an obligation to place the disabled employee in that position, even if the disabled employee has not signed the posting and/or the employer considers another nondisabled candidate to be better qualified.

Conclusion

The ADA's goal is to eliminate those barriers that prevent disabled people from fully participating in society. To achieve this goal in the employment context, the ADA compels employers to consider reassigning disabled employees as a preferable alternative to their unemployment. The obligation to reassign is an affirmative obligation that may, in some cases, entitle disabled employees to "special privileges." However, based on the ADA's legislative history, judicial interpretation, and the EEOC's interpretation, employers must reassign qualified disabled employees, even at the expense of a more qualified, nondisabled applicant, if the duty to reassign is to mean anything.

Endnotes

¹Dalton v. Isuzu-Suburu Automotive Inc., 141 F.3d 667, 676 (7th Cir. 1998); Gile v. United Airlines, 95 F.3d 492, 498 (7th Cir. 1996); Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 693 (7th Cir. 1998). See also, Benson v. Northwest Airlines Inc., 62 F.3d 1108, 1114 (8th Cir. 1995); Daugherty v. City of El Paso, 56 F.3d 695, 698-99 (5th Cir. 1995).

²Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1305 (D.C. Cir. 1998); Baert v. Euclid Beverage Ltd., 149 F.3d 626, 633 (7th Cir. 1998); Dalton, 141 F.3d at 678; Gile, 95 F.3d at 499.

³Aka, 156 F.3d at 1305; Baert, 149 F.3d at 633; Dalton, 141 F.3d at 678; Eckles v. Consolidated Rail Corp., 94 F.3d 1041, 1047 (7th Cir. 1996); Gile, 95 F.3d at 499; McCreary v. Libbey-Owens Ford Co., 132 F.3d 1159, 1165 (7th Cir. 1997).

⁴Aka, 156 F.3d at 1305; Baert, 149 F.3d at 633; Benson, 62 F.3d at 1114; Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 809 (5th Cir. 1997); Gile, 95 F.3d at 499; McCreary, 132 F.3d at 1165.

⁵Malabarba v. Chicago Tribune Co., 149 F.3d 690, 699 (7th Cir. 1998); Dalton, 141 F.3d at 679.

⁶Aka, 156 F.3d at 1305; Barnett v. U.S. Air Inc., 157 F.3d 744, 751 (9th Cir. 1998); Benson, 62 F.3d at 1144; Dalton, 141 F.3d at 678-79; Eckles, 94 F.3d at 1050.

⁷Gile, 95 F.3d at 497-98.

⁸Id.

⁹156 F.3d 1284 (D.C. Cir. 1998).

¹⁰Id. at 1256, 1300, n.22.

¹¹Id. at 1286 n.1.

¹²Id. at 1287.

¹³Id.

¹⁴Id. at 1300.

¹⁵Id. at 1303, 1311-12.

¹⁶Id. at 1311-12.

¹⁷Id. 1302, 1304.

¹⁸Id. at 1304-05.

¹⁹Id. 1304-05.

²⁰Id.

²¹Cochrum v. Old Ben Coal Co., 102 F.3d 908, 913 (7th Cir. 1996); Dalton v. Isuzu-Suburu Automotive Inc., 141 F.3d 667, 676 (7th Cir. 1998); Gile v. United Airlines, 95 F.3d 492, 498 (7th Cir. 1996); and Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 693 (7th Cir. 1998).

²²Dalton, 141 F.3d at 678-79. See also, DePaoli v. Abbott Laboratories, 140 F.3d 668, 674-75 (7th Cir. 1998).

²³S. Rep. 101-116 at 9; H.R. Rep. 101-485 (II) at 32-34.

²⁴S. Rep. 101-116 at 9. See also, H.R. Rep. 101-485 (II) at 32-34.

²⁵Ida L. Castro, Chairwoman, EEOC Policy Guidance on Reasonable Accommodation Under the ADA, 40 Daily Lab. Rep. 1 (March 2, 1999)

²⁶Id. at 71-74.

²⁷Id. at 75.

²⁸Smith v. Midland Brake Inc., ___ F.3d ___, 1999 WL 387498 (10th Cir. June 14, 1999) (en banc).

²⁹Id. at *2.

³⁰Id. at *4-*6.

³¹Id. 29 C.F.R. § 1630.2(o) app.

³²42 U.S.C. § 12112(b)(5)(A).

³³Castro, EEOC Policy Guidance, 40 Daily Lab. Rep. 1, 77.

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