January 1, 1900

by Tiffanie C. Benfer

Under the Americans with Disabilities Act (ADA) an employer cannot discriminate against a qualified individual with a disability. The courts collectively agree that a qualified individual with a disability is someone who with or without a reasonable accommodation can perform the essential functions of the position the individual holds or seeks. In order to determine whether a function is essential a number of factors are examined on a case-by-case basis. Examples of reasonable accommodations include modified work schedules and reassignment to a vacant position.

The 3rd Circuit has determined when an employee brings a failure-to-transfer claim against his/her employer the employee has the burden of establishing:

1.  there was a vacant, funded position;
2. the position was at or below the level of the employee’s former job; and
3. the employee was qualified to perform the essential duties of the job with reasonable accommodations.

Should an employee set forth all three elements, then the employer must show that the reassignment would impose undue hardship. Otherwise, failure to reassign could be a violation of the ADA.

Failure to make a reasonable accommodation to an individual with known physical or mental limitations for an otherwise qualified employee is an act of discrimination unless the accommodation would impose an undue hardship on the operation of the employer’s business. Should the accommodation be unreasonable or impose an undue hardship then the employer is not obligated to accommodate the employee. This leaves the courts faced with the responsibility of defining what constitutes an unreasonable accommodation and what accommodations result in undue hardship for an employer.

A job reassignment is an accommodation commonly requested by disabled employees. The courts have determined that the ADA does not require an employer to create a new position for a disabled employee seeking a reassignment. In U.S. Airways, Inc. v. Barnett, the Supreme Court concluded that a reassignment is unreasonable if it violates the employer’s established policy of a seniority system. However, an employee is not left out in the cold simply because an employer has an established seniority system. The Supreme Court adopted an exception to this rule. In certain circumstances, “special circumstances” can trump an employer’s seniority policy.

Neither the Supreme Court nor the 3rd Circuit have squarely addressed whether placing a qualified, but not the most qualified candidate, in a vacant position is a reasonable accommodation. It has been suggested that if a disabled employee is not required to compete equally with the rest of the applicants, this would convert the ADA, a non-discriminatory statute, into a mandatory preference statue that places an “unreasonable imposition on the employers and coworkers of disabled employees.” EEOC v. Humiston- Keeling, Inc. While this line of reasoning makes a strong argument, it has the high probability of leaving a disabled employee out of a job. One can only hope that the court would recognize once again that in certain circumstances, “special circumstances” should trump the employer’s policy.

Most recently, the 8th Circuit in Huber v. Wal-Mart considered whether a reasonable accommodation includes giving a current disabled employee preference in filling a vacant position even though the employee is not the most qualified candidate for the job. In this particular case the employer, Wal-Mart, asserted that it had a nondiscriminatory policy to hire the most qualified applicant, and therefore, the employee was not entitled to be reassigned to the vacant position without competing with the other applicants.

The court agreed with Wal-Mart that the ADA does not require an employer to turn away a superior applicant in order to accommodate the disabled employee. In essence, Wal-Mart did not have to show that the disabled employee did not qualify for the job, but rather, was not the best candidate for the job to establish the accommodation as unreasonable.

However, in AKA v.Washington Hospital, the 10th Circuit reached a very different conclusion on this very issue. The court concluded that under the ADA when a disabled employee asks for a reassignment the employer must award a vacant position to the disabled employee even though the pool of applicants includes more qualifi ed individuals.

In EEOC v. Humiston-Keeling, Inc., the 7th Circuit suggests that the ADA does not require an employer to give a disabled employee priority over a more qualified applicant as long as the employer has an established policy to hire the most qualified applicant.

What Does This Mean?

It is safe to say that an employer does not have to violate an established seniority system to accommodate a disabled employee’s request for a job reassignment. The question that remains is whether the Court is willing to extend this theory so that employers are required to turn away superior candidates. It appears that it is a legitimate possibility that the Supreme Court will consider this issue given the fact that the lower courts have been unable to reach a consensus. Should the Court adopt the decision in Wal-Mart, an employer will simply have to show that the employee was not the best candidate in order to avoid liability under the ADA.

How Does This Affect an Employer?

Should an employer decide to assert this position when a disabled employee requests a reassignment, the employer should at the very least be prepared to demonstrate that it has an established non-discriminatory policy to hire the most qualified applicant. Otherwise, the court may find this assertion pretextual, leaving the employer vulnerable for liability under the ADA.

How Does This Affect an Employee?

Should the Supreme Court agree with the court’s decision in Wal- Mart, a disabled employee will face additional hurdles in order to make a successful claim against an employer for a failure to accommodate. An employee will have to be prepared to challenge an employer’s contention that it has established non-discriminatory policy to hire the most qualified applicant.

One potential way to pierce the employer’s policy is the argument that the employer has failed to consistently implement its policy, therefore, a departure from this policy would not impact the employer’s business. Another response could be the policy contains exceptions, and therefore, another is unlikely to matter. Should the decision in Wal-Mart be adopted by the high court, the prospect that a reassignment will deemed unreasonable will enhance.

Before making critical decisions about or affecting a potentially disabled employee’s employment status, consultation with legal counsel can assist the employer in making the right decision and avoid liability. Hill Wallack has a team of employment attorneys who have handled these issues and counseled their client- employers with such difficult employment decisions.

Tiffanie C. Benfer is an associate of Hill Wallack LLP in the Newtown office where she is a member of the Employment & Labor Law Practice Group.