Reassignment as a Reasonable Accommodation
Under the Americans with Disabilities Act
August 24, 2000
Scott M. McElhaney
Reassignment as a Reasonable Accommodation
Under the Americans with Disabilities Act
I.
Introduction.
This paper outlines some of the major issues to consider when determining whether a
disabled employee must be reassigned to another position as a “reasonable accommodation” under
the Americans with Disabilities Act (“ADA”), 42 U.S.C.§ 12101, et seq.
II.
The Statutory Framework.
The general proscriptive rule of Title I of the ADA provides as follows:
No covered entity shall discriminate against a qualified individual with a disability
because of the disability of such individual in regard to job application procedures,
the hiring, advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of employment.
42 U.S.C. § 12112(a). The Act specifies that to “discriminate” includes:
(A) not making reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability who is an applicant
or an employee, unless such covered entity can demonstrate that the accommodation
would impose an undue hardship on the operation of the business of such covered
entity; or
(B) denying employment opportunities to a job applicant or employee who is an
otherwise qualified individual with a disability, if such denial is based on the need of
such covered entity to make reasonable accommodation to the physical or mental
impairments of the employee or applicant.
42 U.S.C. § 12112(b)(5). The definition section of Title I of the Act defines reasonable
accommodation as follows:
The term “reasonable accommodation” may include –
...
(B) job restructuring, part-time or modified work schedules, reassignment to
a vacant position, acquisition or modification of equipment or devices, appropriate
adjustment or modification of examinations, training material or policies, the
provision of qualified readers or interpreters, and other similar accommodations for
individuals with disabilities.
42 U.S.C. § 12111(9).
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III.
The Regulatory Framework.
A.
EEOC Regulations.
The EEOC’s implementing regulations for the ADA generally follow these statutory
commands and definitions. See 29 C.F.R. § 1630.2 (1999). The regulations also provide that:
To determine the appropriate reasonable accommodation it may be necessary for the
covered entity to initiate an informal interactive process with the qualified individual
with a disability in need of the accommodation. This process should identify the
precise limitations resulting from the disability and potential reasonable
accommodations that could overcome those limitations.
29 C.F.R. § 1630.2(o)(3).
B.
EEOC Interpretive Guidance.
The EEOC’s non-binding Interpretive Guidance on Title I of the ADA, 29 C.F.R. pt. 1630,
App., provides a lengthy discussion of reassignment as a reasonable accommodation. Stated briefly,
the Guidance provides that:
·
·
·
·
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Reassignment should be considered only when accommodation within the individual’s
current position would pose an undue hardship.
Reassignment may not be used to limit, segregate, or otherwise discriminate against
employees with disabilities by forcing reassignment to undesirable positions or to designated
offices or facilities.
Employers should reassign the individual to an equivalent position, in terms of pay, status,
etc., if the individual is qualified, and if the position is vacant within a reasonable amount of
time.
An employer may reassign an individual to a lower graded position if there are no
accommodations that would enable the employee to remain in the current position and there
are no vacant equivalent positions for which the individual is qualified with or without
reasonable accommodation.
An employer is not required to promote an individual with a disability as an accommodation.
29 C.F.R. pt. 1630, App., § 1630.2(o) (1999).
IV.
Judicial Analysis of Reassignment as a Reasonable Accommodation.
Courts that have been faced with cases in which reassignment has been advanced as a
possible reasonable accommodation have generally followed the EEOC’s Interpretive Guidance.
These courts have also synthesized those rules with other requirements of the ADA, such as the
obligation to engage in the interactive process, and have begun to develop a fairly standardized
analysis of reassignment as a reasonable accommodation. This analysis is summarized below.
However, as will be discussed, there are still significant differences among the courts about the outer
limits of an employer’s reassignment duty.
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A.
Reassignment is the Accommodation of Last Resort.
The EEOC’s Interpretive Guidance provides that “reassignment should be considered only
when accommodation within the individual’s current position would pose an undue hardship” 29
C.F.R. Pt. 1630, App. §1630.2(o). The federal Courts of Appeals have uniformly followed this rule:
·
Cassidy v. Detroit Edison Co., 138 F.3d 629, 634 (6th Cir. 1998) (“Generally, transfer or
reassignment of an employee is only considered when accommodation within the
individuals’s current position would pose an undue hardship.”).
·
Vollmert v. Wisconsin Dept. of Transp, 197 F.3d 293, 302 (7th Cir. 1999) (reassignment
“should be utilized as a method of accommodation only if a person could not fulfill the
requirements of her current position with accommodation.”).
·
Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1019 (8th Cir. 2000)
(stating that “the very prospect of reassignment does not even arise unless ‘accommodation
within the individual’s current position would pose an undue hardship.’”).
·
Smith v. Midland Brake, Inc., 180 F.3d 1154, 1170 (10th Cir. 1999) (en banc) (“the preferred
option is always an accommodation that keeps the employee in his or her existing job if that
can reasonably be accomplished.”).
·
Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1301 (D.C. Cir. 1998) (en banc) (“Congress
saw reassignment, as the EEOC does, as an option to be considered only after other efforts at
accommodation have failed.”).
B.
Once Triggered, the Interactive Process Requires
The Employer to Substantially Participate in Locating a New Job.
The disabled employee is responsible for initiating the interactive process which identifies a
person’s limitations and attempts to find ways to accommodate those limitations. Once this process
is triggered and reassignment becomes an option, the employer’s obligation to search for a job to
which the employee could be reassigned can be quite broad.
1.
The Employee’s Duty to Trigger the Reassignment Interactive Process.
In general, the duty of triggering the interactive process lies with the employee. See, e.g.,
Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 735 n.4 (5th Cir. 1999) (because “[e]mployers cannot
be expected to anticipate all the problems that a disability may create on the job and spontaneously
accommodate them,” the initial burden “is on the employee to request an accommodation”). In the
context of reassignment, however, this burden is not onerous:
·
Hendricks-Robinson v. Excel Corp., 154 F.3d 985, 694 (7th Cir, 1998) (“A request as
straightforward as asking for continued employment is a sufficient request for
accommodation.”); Miller v. Illinois Dept. of Correction., 107 F.3d 483, 486-87 (7th Cir,
1997) (“Even if an employee who . . . has become disabled while employed just says to the
employer, ‘I want to keep working for you – do you have any suggestions?’ the employer
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has a duty under the Act to ascertain whether he has some job that the employee might be
able to fill.”).
·
Smith v. Midland Brake, Inc., 180 F.3d 1154, 1171-72 (10th Cir. 1999) (“In general the
interactive process must ordinarily begin with the employee providing notice to the employer
of the employee’s disability and any resulting limitations, and expressing a desire for
reassignment if no reasonable accommodation is possible in the employee’s existing job.
The employee should provide enough information about his or her limitations and desires so
as to suggest at least the possibility that reasonable accommodation may be found in a
reassignment job within the company. In expressing a desire for reassignment, an employee
need not use magic words. But, the employee must convey to the employer a desire to
remain with the company despite his or her disability and limitations.”).
2.
The Employer’s Duty in the Interactive Process.
·
Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 678 (7th Cir. 1998) (rejecting the
proposal that the “the duty to reassign [be] limited to cover only those positions that share
the same essential functions as the employee’s current position” and the idea that the duty to
reassign extends “to virtually ever other job in a company” and concluding that “[t]he
employer must first identify the full range of alternative positions for which the individual
satisfies the employer’s legitimate, nondiscriminatory prerequisites,[1] and then determine
whether the employee’s own knowledge, skills, and abilities would enable her to perform the
essential functions of any of those alternative positions, with or without reasonable
accommodations. The employer’s duty to accommodate requires it to consider transferring
the employee to any of these jobs, including those that would represent a demotion.”).
·
Smith v. Midland Brake, Inc., 180 F.3d 1154, 1172-73 (10th Cir. 1999) (“Once the
employer’s responsibilities within the interactive process are triggered . . . both parties have
an obligation to proceed in a reasonably interactive manner to determine whether the
employee would be qualified, with or without reasonable accommodation, for another job
within the company and, if so, to identify an appropriate reassignment opportunity if any is
reasonably available. . . . The exact shape of this interactive dialogue will necessarily vary
from situation to situation and no rules of universal application can be articulated. . . . [I]n
larger companies or companies where the employee does not have ready access to
information regarding available jobs, it might be reasonable to require the employer to
identify jobs that the employer reasonably concludes are appropriate for reassignment
consideration.”) (emphasis added).
·
Burns v. Coca-Cola Enterprises, Inc., No. 98-6535, 2000 U.S. App. LEXIS 17723 (6th Cir.
July 24, 2000), at *31 (citing Dalton with approval, but affirming summary judgment for
employer where, although plaintiff stated he needed to be reassigned, employer only
1
The Dalton court also identified a variety of the legitimate job prerequisites that an employer may establish
consistently with nondiscrimination laws, including considering someone over-qualified or under-qualified,
preferring a full-time employee over a part-time employee, and adopting an “up or out” policy or a “non-demotion”
policy. Id. at 679.
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considered him for two jobs for which he applied under employer’s Transfer Request plan.
Court held that employer did not violate its interactive process duties when it only
considered him for the two jobs for which he applied, explaining that his “failure to request a
transfer to a new position for which he was otherwise qualified precludes him from
recovering for discrimination under the ADA” and noting that a rule which would allow
plaintiff to “recover despite his failure to abide by [an employer’s] non-discriminatory policy
requiring him to apply for a transfer to a new position within his restrictions, would ‘convert
a nondiscrimination statute into a mandatory preference statute.’”).
·
NOTE – An employer’s duty to assist in identifying a potential position for a disabled
employee during the interactive process is separate and distinct from the allocation of the
burden of proof once a disabled employee files suit. As will be discussed below, once in
court, the plaintiff has the burden of showing that there was a position to which he or she
could have been reassigned. The opinions in some cases are written ambiguously, so that the
reader is not certain whether summary judgment for the employer was proper because the
plaintiff failed to propose alternative jobs in the summary judgment proceeding or because
the plaintiff failed to identify (or “apply”) for alternative jobs while he or she was still
employed by the defendant. See Burns, 2000 U.S. App. LEXIS at *32-33 (discussing the
Seventh Circuit’s opinion in Dalton).
One criticism of the Dalton opinion is that it focuses on the employer’s duties in the
interactive process, but does not emphasize the employee’s corresponding interactive process
duties. Recalling that the employee also has a duty to proceed in a reasonably interactive
manner helps explain why the Burns decision is correct, even though its reliance on Dalton is
confusing. The employer identified all open positions by posting them on a bulletin board.
It uniformly required any employee who was interested in one of these open positions to
apply. These acts can be seen as sufficient to discharge an employer’s interactive process
duties and trigger an employee’s duty to respond by “applying” for the job or jobs in which
he or she is interested. Because the plaintiff in Burns did not apply for any job for which he
was qualified, he could not show that the employer wrongfully failed to offer him a
reasonable accommodation.
·
A similar situation recently occurred in a Lucent case arising out of Oklahoma City. In Kirk
v. Lucent Technologies Inc., the plaintiff (who had been a security guard) injured her knees
and became unable to perform the security guard job duties. When she left work under the
SADB Plan, she was reminded that she could bid for other jobs through the Lucent Transfer
Program (“LTP”) system. Kirk enrolled in the LTP system, which lists available jobs within
the company, and requires the employee to bid on jobs in which he or she is interested.
However, Kirk did not bid on any open job before her benefits expired under the SADB
Plan. In granting Lucent’s motion for summary judgment on Kirk’s claim that Lucent
should have reassigned her, the Court found “the LTP system provided an interactive process
through which Kirk was able to identify vacant positions [and noted that Kirk] did not bid on
any open jobs after she was enrolled in the LTP system.” The presence of the LTP system
was thus found to be sufficient to satisfy Lucent’s interactive process obligations, and Kirk’s
failure to pursue opportunities under that system doomed her reassignment claim.
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C.
Limitations on the Job Positions to Which
Employers May Have to Reassign Disabled Employees.
1.
An Employer Need Not Create a New Job Position.
A basic limitation on the duty to reassign a qualified disabled employee is the fact that the
employer is not required to create a new job in order to fulfill its ADA obligations:
·
Still v. Freeport-McMoran, Inc., 120 F.3d 50, 53 (5th Cir. 1997) (an employer has “no . . .
statutory obligation to create a new job for [an employee] at another location.”).
·
Burns v. Coca-Cola Enterprises, Inc., 2000 U.S. App. LEXIS 17723 (6th Cir. July 24, 2000),
at *29-30 (“Employers are not required to create new jobs.”).
·
Gile v. United Airlines, Inc., 95 F.3d 492, 498 (7th Cir. 1996) (“Nor is an employer obligated
to create a ‘new’ position for the disabled employee.”).
·
Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1019 (8th Cir. 2000)
(“the disabled employee must be seeking an existing position within the company; the
employer is not required to create a new position as an accommodation.”).
·
Smith v. Midland Brake, Inc., 180 F.3d 1154, 1174 (10th Cir. 1999) (“It is not reasonable to
require an employer to create a new job for the purpose of reassigning an employee to that
job.”).
2.
The Position Must Be Vacant or Vacant Within a
Reasonable Amount of Time; No “Bumping” is Required.
The ADA provides that the duty to reassign only applies to a “vacant position.” 42 U.S.C. §
12111(9). The EEOC’s Interpretive Guidance expands on the concept of “vacancy,” suggesting that
a position is vacant if there will be an opening in a “reasonable amount of time.” 29 C.F.R. pt. 1630,
App., § 1630.2(o) (1999). While several courts have adopted the EEOC’s “reasonable amount of
time” language, not all courts have. However, this issue has not been dispositive in any case.
Additionally, courts have held that the vacancy requirements means that an employer need not
“bump” an employee out of a job in order to create a vacancy for a disabled employee:
a.
Vacant Position at the Moment or Reasonably Soon.
·
Burch v. City of Nacogdoches, 174 F.3d 615, 620 (5th Cir. 1999) (stating that a “position
must first exist and be vacant.”).
·
Monette v. Electronic Data Sys., 90 F.3d 1173, 1187 (6th Cir. 1996) (vacant position
includes positions that the employer knows “will become vacant in a short period of time.”).
·
Gile v. United Airlines, Inc., 95 F.3d 492, 499 (7th Cir. 1996) (“An employer may be
obligated to reassign a disabled employee, but only to vacant positions.”).
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·
Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1019 n.5 (8th Cir.
2000) (“The term ‘vacant position’ not only includes positions that are presently vacant, but
also those that the employer reasonably anticipates ‘will become vacant in a short period of
time.’”).
·
Smith v. Midland Brake, Inc., 180 F.3d 1154, 1174-75 (10th Cir. 1999) (“‘a vacant position’
includes not only positions that are at the moment vacant, but also includes positions that the
employer reasonably anticipates will become vacant in the fairly immediate future.”).
b.
No Bumping Required.
·
Burns v. Coca-Cola Enterprises, Inc., 2000 U.S. App. LEXIS 17723 (6th Cir. July 24, 2000),
at *29-30 (“Employer are not required to . . . displace existing employees from their
positions.”).
·
Gile v. United Airlines, Inc., 95 F.3d 492, 499 (7th Cir. 1996) (“[a]n employer is not required
to ‘bump’ other employees to create a vacancy so as to be able to reassign the disabled
employee.”); Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 678 (7th Cir. 1998)
(“Even temporary workers do not have to be bumped out of a job.”).
·
Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1019 (8th Cir. 2000)
(“[A]n employer is not required to ‘bump’ another employee in order to reassign a disabled
employee to that position.”).
·
Smith v. Midland Brake, Inc., 180 F.3d 1154, 1174-75 (10th Cir. 1999) (“Obviously then,
under the terms of the statute, if a position is not vacant it is not reasonable to require an
employer to bump another employee in order to reassign a disabled employee to that
position.”).
3.
The Position Must Be Equivalent to the Previous Job, or
(If None Are Available), a Lower Ranking Job Position;
The Employer Need Not Promote the Employee or Reassign
The Employee to the Position of His or Her Choice.
a.
Equivalent or Lower Position (But
Only if No Other Position is Available)
The job position to which a disabled employee may be reassigned should, if possible, be one
at the same level as the one the employee previously held. As the EEOC’s Interpretive Guidance put
it, “[e]mployers should reassign the individual to an equivalent position, in terms of pay, status, etc.,
if the individual is qualified.” 29 C.F.R. pt. 1630, App., § 1630.2(o) (1999). Courts have uniformly
followed this guidance:
·
Cassidy v. Detroit Edison Co., 138 F.3d 629, 634 (6th Cir. 1998) (“An employer may
reassign an employee to a lower grade and paid position if the employee cannot be
accommodated in the current position and a comparable position is not available.”).
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·
Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1019 (8th Cir. 2000)
(citing and following Cassidy).
·
Smith v. Midland Brake, Inc., 180 F.3d 1154, 1176-77 (10th Cir. 1999) (“The employer
should first consider lateral moves to positions that are regarded as equivalent. An employer
may only consider lesser jobs that constitute a demotion if there are no such equivalent
positions available.”).
·
Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 99 (2d Cir. 1999) (“an offer of an inferior
position does not constitute a reasonable accommodation where a position with salary and
benefits comparable to those of the employee’s former job is available.”); see also id.
(noting that if a comparable position is available for which the employee is qualified, “an
employer’s refusal to reassign the employee to that position – absent some other offer of
reasonable accommodation – constitutes a violation of the ADA.”).
b.
No Promotion is Necessary.
An employer need not promote a disabled person in order to reassign him or her:
·
Cassidy v. Detroit Edison Co., 138 F.3d 629, 634 (6th Cir. 1998) (“[A] reassignment will not
require . . . promoting the disabled employee.”).
·
Malabara v. Chicago Tribune Co., 149 F.3d . 690, 699 (7th Cir. 1998) (“[A]n employer does
not have to accommodate a disabled employee by promoting him or her to a higher level
position.”).
·
Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1019 (8th Cir. 2000)
(“Notably, a promotion is not required.”).
·
Smith v. Midland Brake, Inc., 180 F.3d 1154, 1176-77 (10th Cir. 1999) (“[T]he only
positions that need to be considered for reassignment are those that are not promotions.”).
c.
Not the Position of the Employee’s Choice.
Nor can a disabled employee choose for himself or herself the particular position in which he
or she is placed:
·
Allen v. Rapides Parish School Bd., 204 F.3d 619, 622-23 (5th Cir. 2000) (“The ADA does
not require an employer to give an employee with a disability his job of choice especially
when there are qualified individuals who desire the same position.”) (holding that employer
offered reasonable accommodation to plaintiff’s tinnitus when it transferred him to a position
paying $4,100 per year less than previous position; no evidence suggested that employer’s
refusal to offer position paying same as previous position was motivated by disability
discrimination).
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·
Gile v. United Airlines, Inc., 95 F.3d 492, 499 (7th Cir. 1996) (“An employer is not obligated
to provide an employee the accommodation he requests or prefers, the employer need only
provide some reasonable accommodation.”).
·
Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1019 (8th Cir. 2000)
(“[T]he employer is not obligated to provide the accommodation requested or preferred by
by the employee; the reassignment need only be a ‘reasonable accommodation’”).
·
Smith v. Midland Brake, Inc., 180 F.3d 1154, 1177 (10th Cir. 1999) (“[T]he employer is free
to choose the reassignment that is to be offered to the qualified person with a disability. If
the disabled individual rejects that reassignment, the employer is under no obligation to
continue offering other reassignments.”).
4.
The Employee Must Be Otherwise Qualified for the New Position.
Of course, the disabled employee must be able to meet the qualification standards of the new
position, with or without reasonable accommodation:
·
Gonzales v. City of New Braunfels, 176 F.3d 834, 838-39 (5th Cir. 1999) (“Gonzales must
first satisfy his burden of proving that he is qualified, with or without reasonable
accommodation, for the [job at issue].”).
·
Burns v. Coca-Cola Enterprises, Inc., 2000 U.S. App. LEXIS 17723 (6th Cir. July 24, 2000),
at * 29 (“We do not, however, hold that the employer must reassign the disabled employee to
a position for which he is not otherwise qualified.”).
·
Gile v. United Airlines, Inc., 95 F.3d 492, 499 (7th Cir. 1996) (“The ADA may only require
an employer to reassign a disabled employee to a position for which the employee is
otherwise qualified.”).
·
Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1019 (8th Cir. 2000)
(“Importantly, the employee must be otherwise ‘qualified’ for the reassignment position.”).
·
Smith v. Midland Brake, Inc., 180 F.3d 1154, 1178 (10th Cir. 1999) (“It would not be
reasonable to require an employer to reassign an employee to a position for which he or she
is not otherwise qualified, with or without reasonable accommodation, or to require
redefinition of the essential requirements of a vacant job so as to bring it within the
qualifications of a disabled employee.”).
5.
An Employer Need Not Violate a CBA or Sacrifice
A Legitimate Nondiscriminatory Employment Policy.
The duty to reassign is limited by the fact that an employer is generally not required to
violate collective bargaining agreements or other legitimate, nondiscriminatory employment
policies:
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·
Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 810 (5th Cir. 1997) (“Following the other
circuits which have considered this issue, we hold that the ADA does not require an
employer to take action inconsistent with the contractual rights of other workers under a
collective bargaining agreement.”).
·
Burns v. Coca-Cola Enterprises, Inc., 2000 U.S. App. LEXIS 17723 (6th Cir. July 24, 2000),
at *29-30 (“Employer are not required to . . . violate other employees’ rights under a
collective bargaining agreement or other non-discriminatory policy in order to accommodate
a disabled individual.”).
·
Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 678 (7th Cir. 1998) (employers are
not “required to reassign a disabled employee to a position when such a transfer would
violate a legitimate, nondiscriminatory policy of the employer [such as prohibitions against
under-qualified and over-qualified persons, preferences for full time employees over part
time workers, and the maintenance of an “up or out” advancement policy]. The contrary rule
would convert a nondiscrimination statute into a mandatory preference statute, a result which
would be both inconsistent with the nondiscriminatory aims of the ADA and an unreasonable
imposition on the employers and coworkers of disabled employees.”); but see id.
(cautioning that such policies “remain subject to challenge both for any disparate impact it
might impose on disabled employees, and for any unreasonable inflexibility in the face of a
demand for reasonable adjustments to accommodate a disabled candidate for
reassignment.”).
·
Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1019 (8th Cir. 2000)
(“[T]he employer is generally not required to transfer a disabled employee if such a
reassignment would violate either ‘a legitimate, nondiscriminatory policy of the employer’ or
‘the contractual rights of other workers under a collective bargaining agreement.’”).
·
Smith v. Midland Brake, Inc., 180 F.3d 1154, 1175 (10th Cir. 1999) (after discussing that
positions may not be “vacant” because collective bargaining agreements may give others a
vested priority right to such vacant positions, the court noted that “[b]ecause reasonableness
is our guide, there may be other important employment policies besides protecting right
guaranteed under a collective bargaining agreement that would make it unreasonable to
require an employer to reassign a disabled employee to a particular job.”) (positing wellestablished seniority system not rooted in CBA as an example).
·
BUT NOTE – 42 U.S.C. § 12112(b)(2) (prohibiting covered entities from “participating in
a contractual or other arrangement or relationship that has the effect of subjecting a covered
entity’s qualified applicant or employee with a disability to the discrimination prohibited by
this subchapter.”).
This prohibition was most directly aimed at collective bargaining agreements that contain
physical criteria which caused a disparate impact on individuals with disabilities and were
not job-related and consistent with business necessity. See H.R. No. 101-485(II), 101st
Cong., 2d Sess., at 63 (1990), reprinted in, 1990 U.S.C.C.A.N. 303, 345 (noting same).
While the legislative history notes that a CBA could be relevant “in determining whether a
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given accommodation is reasonable,” the House Report on the ADA does not suggest that
CBAs should automatically receive the deference that courts often give it. The Report notes
that “if a [CBA] reserves certain jobs for employees with a given amount of seniority, it may
be considered as a factor in determining whether it is a reasonable accommodation to assign
an employee with a disability without seniority to the job. However, the agreement would
not be dispositive on the issue.” Id.; see also EEOC, Enforcement Guidance: Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities Act ¶ 45 (1999)
(noting that if a reasonable accommodation would violate the existing CBA, then the ADA
requires the employer and the union to negotiate in good faith for a variance to the CBA,
unless the proposed accommodation would unduly burden the expectations of other
workers).
6.
An Employer Need Not Endure an “Undue Hardship.”
In keeping with the statutory command, an employer can always show that a proposed
accommodation is not reasonable if it can “demonstrate that the accommodation would impose an
undue hardship on the operation of the business.” 42 U.S.C. § 12112(b)(5). Courts routinely
recognize this provision of the ADA.
·
Malabarba v. Chicago Tribune, 149 F.3d 690, 699 (7th Cir. 1998) (stating that if the
reassignment imposes an “undue hardship” on the employer, there is no requirement to
reassign the disabled employee).
·
Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1020 (8th Cir. 2000)
(the reassignment of a disabled employee is not allowed to “create an ‘undue hardship’ on
the employer.’”).
·
Smith v. Midland Brake, Inc., 180 F.3d 1154, 1178 (10th Cir. 1999) (“Finally, no
reassignment need be offered if it would create an ‘undue hardship’ on the employer.”).
The term “undue hardship” is defined at 42 U.S.C. § 12111(10).
7.
Open Issue: Must an Employer Prefer a Qualified Disabled
Person Over Other Qualified Persons Who Desires the Job?
One controversial issue in ADA reassignment jurisprudence is how employers should
prioritize those seeking reassignment versus those non-disabled individuals applying for the same
job. The several circuits which have addressed the issue have reached varying conclusions:
a.
Courts That Hold a Disabled Person Need Not Be Preferred.
Several courts that have considered the issue have held that the duty to reassign a disabled
employee does not require an employer to prefer that employee over all others who desire the
position:
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·
Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995) (in case in which plaintiff – a
part time city bus driver who developed diabetes and could thus no longer drive city buses –
was denied reassignment to airport shuttle driver position because physically incapacitated
full time workers were preferred over part time workers, court held that city did not violate
ADA because “there was no proof that the city treated him worse than it treated any other
displaced employee.” Court concluded that it did “not read the ADA as requiring affirmative
action in favor of individuals with disabilities, in the sense of requiring that disabled persons
be given priority in hiring or reassignment over those who are not disabled. It prohibits
employment discrimination against qualified individuals with disabilities, no more and no
less.”). (Note, however, that the Seventh Circuit reads Daugherty only to stand for the
proposition that an employer can prefer full time employees over part time employees.
Dalton, 141 F.3d at 678. The Tenth Circuit has the same reading. Smith, 180 F.3d at 1169.)
·
Burns v. Coca-Cola Enterprises, Inc., 2000 U.S. App. LEXIS 17723, at *29 (6th Cir. July
24, 2000) (“We do not, however, hold that the employer must . . . displace other employees’
rights to be considered in order to accommodate the disabled individual.”) (dicta).
·
Malabarbara v. Chicago Tribune Co., 149 F.3d 690, 700 (7th Cir. 1998) (“While Congress
enacted the ADA to establish a ‘level playing field for our nation’s disabled workers, it did
not do so in the name of discriminating against persons free from disability. Restated, the
ADA does not mandate a policy of ‘affirmative action in favor of individuals with
disabilities, in the sense of requiring that disabled person be given priority in hiring or
reassignment over those who are not disabled.’”) (citations omitted). (Note, however that the
passage of the opinion from which this language comes in fact seems to be concerned with
whether the employer should be forced to relieve the employee of essential functions of
particular jobs and whether the employee was required to be promoted.)
b.
Courts That Hold a Disabled Person Should Be Preferred.
Other courts have written that the duty to reassign requires employers to prefer disabled
employees who are qualified for a vacant job, even over other qualified applicants.
·
Smith v. Midland Brake,Inc ., 180 F.3d 1154, 1164-70 (10th Cir. 1999) (rejecting the view
that the duty to reassign is “no more than a duty merely to consider with out discrimination a
disabled employee’s request for reassignment along with all other applications the employer
may receive from other employees or job applicants for a vacant position.” Court wrote that
“[i]f a disabled employee had only a right to require the employer to consider his application
but had no right to reassignment itself, even if the consideration revealed that the
reassignment would be reasonable, then this promise within the ADA would be empty.”).
·
Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1304-05 (D.C. Cir. 1998) (concluding that the
view that the reassignment provision of the ADA mandates “nothing more than that the
employer allow the disabled employee to submit his application along with all of the other
candidates . . . would render that provision a nullity.” The court reasoned that “the ADA’s
reference to reassignment would be redundant if permission to apply were all it meant; the
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ADA already prohibits discrimination ‘against a qualified individual with a disablity because
of the disability of such individual in regard to job application procedures.’”).
·
See also EEOC, Enforcement Guidance: Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act ¶ 29 (1999) (“Does reassignment mean that the
employee is permitted to compete for a vacant position? No. Reassignment means that the
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.”).
b.
Courts That Have Avoided the Issue.
Finally, several courts have explicitly avoided deciding the issue:
·
Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 99 n.4 (2d Cir. 1999) (explicitly declining
to reach the issue).
·
Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1018 n.2 (8th Cir.
2000) (“In the instant case, we need not decide this very different question of whether an
otherwise qualified disabled employee should be automatically awarded a position over other
qualified applicants.”).
D.
The Burden of Proof in ADA Accommodation by Reassignment Claims.
Distinct from how the parties must communicate during the interactive process are the
respective parties’ burdens in court. In this context, courts have placed much of the burden on the
employee:
·
Smith v. Midland Brake, Inc., 180 F.3d 1154, 1179 (10th Cir. 1999) (“To survive summary
judgment on an ADA claim of failure to accommodate by offering reassignment to a vacant
position, the employee initially bears the burden of production with respect to a prima facie
case [by] showing that: (1) The employee is a disabled person . . . ; (2) The preferred option
of accommodation within the employee’s existing job cannot reasonably be accomplished;
(3) The employee requested the employer reasonably to accommodate his or her disability by
reassignment to a vacant position . . . ; (4) The employee was qualified, with or without
reasonable accommodation, to perform one or more appropriate vacant jobs within the
company that the employee must, at the time of the summary judgment proceeding,
specifically identify and show were available . . . ; and (5) The employee suffered injury . . .
.”).
The requirement that frequently poses the most difficulty for plaintiffs is the requirement of
showing that a position to which he or she could have been transferred actually existed:
·
Jackan v. New York State Dept. of Labor, 205 F.3d 562, 567-68 (2d Cir. 2000) (“[A] plaintiff
seeking to hold the employer liable for failing to transfer her to a vacant position as a
reasonable accommodation must demonstrate that there was a vacant position into which she
might have been transferred.”).
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·
Cassidy v. Detroit Edison Co., 138 F.2d 629, 633-34 (6th Cir. 1998) (holding that the
plaintiff did not meet her burden of proving there was a position available within the
company).
·
Pond v. Michelin North America, 183 F.3d 592, 595 (7th Cir. 1999) (the employee has the
burden of showing the existence of a vacant position).
·
Taylor v. Pepsi-Cola Co., 196 F.3d 1106. 1110-1111 (10th Cir. 1999) (affirming summary
judgment for employer where plaintiff specified no vacant jobs for which he was qualified
for transfer).
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