If you cannot perform your job due to a disability, and you request to be reassigned to a job you are able to perform as an ADA accommodation, can your employer make you compete for this open position with other job applicants? This likely depends on where you live. Our Columbus, Ohio ADA Disability attorneys provide a full analysis of this issue and the current divide among the U.S. federal courts.
The Americans with Disabilities Act (“ADA”) protects qualified individuals with disabilities from discrimination in job applications, hiring, firing, compensation, and other terms and conditions of employment. An employee is considered “disabled” if he or she has a physical or mental impairment that substantially limits one or more major life activities.[1] Disabled employees are considered “qualified” for their job if they can perform the essential functions of their position, with or without a reasonable accommodation.[2] Disabled employees can request a reasonable accommodation to enable them to perform their jobs. For more information on what makes an accommodation request “reasonable,” check out our blog post on reasonable accommodations.
If the employee cannot perform the essential functions of his or her job, even with a reasonable accommodation, then he or she can request reassignment to a vacant position as a reasonable accommodation under the ADA.[3] However, job reassignment is an accommodation “of last resort.”[4] This request need not be considered by the employer unless the employee proves that (1) he is unable to perform the essential functions of his current job due to a disability, even with a reasonable accommodation; and (2) there is a vacant position available which the employee is qualified to perform. The employee must also prove his reassignment would not cause an “undue hardship to his employer. For more information on what constitutes an “undue hardship” for employers, check out our reasonable accommodations page.
When an employee seeks reassignment, he must first prove that a vacant position already exists, or will soon become available. Employers are not required to create new positions or displace other employees to accommodate a disabled employee. The employee must also prove he is qualified for the new position to which he seeks reassignment. To prove he is qualified, the employee must establish that (1) he meets all prerequisites to hold the position; and (2) he is able to perform the essential functions of the job, with or without a reasonable accommodation. If the employer denies an employee reassignment to a vacant position he is qualified for, the employer could face liability under the ADA.
I am unable to perform my current job, and I requested reassignment to a vacant position with job duties I can perform as a reasonable ADA accommodation. Am I automatically entitled to the position, or do I have to compete for it with other job applicants?
Courts throughout the U.S. have yet to agree on an answer to this very important question. Some courts, including the federal court that have jurisdiction over Ohio, have held that a disabled employee is NOT automatically entitled to fill the vacant position to which they request reassignment.[5] In these cases, courts have held that employees can request reassignment as a reasonable accommodation, but they must apply for the position as any other job applicant would and compete for the position with other qualified applicants.
Proponents of this outcome argue that the ADA merely prohibits discrimination against individuals with disabilities; it does not require that disabled employees be given priority over non-disabled persons in hiring decisions. Job applicants who are more qualified than the disabled employee requesting reassignment would have to be turned away if the disabled employee was automatically entitled to the position, and courts have argued this oversteps the ADA’s primary goal of leveling the playing field for disabled workers.
Under this theory, employers comply with the ADA as long as the disabled employee is given the same opportunity to be reassigned to a vacant position as non-disabled employees. Thus, if an employer has a policy in place stating that all employees who request a reassignment or transfer must apply for the position as any other job applicant would, the disabled employee must merely be given the same chance to apply for the position as other employees. If a more qualified applicant applies for the job the disabled employee seeks, the disabled employee is not entitled to priority selection for the position.
However, other courts disagree with this interpretation. These courts have held that employees who request reassignment to a vacant position as a reasonable accommodation ARE entitled to priority placement, and they should not have to compete with other job applicants for it. Proponents of this outcome argue that the ADA sometimes requires employers to alter their existing policies or procedures to make reasonable accommodations. Employer hiring policies, courts have argued, are no different; employers should be required to alter their hiring policies to allow a disabled employee to remain employed with the company.
This theory also better aligns with the position taken by the Equal Employment Opportunity Commission on this issue. The EEOC has issued an opinion stating that “employers should reassign the individual to an equivalent position . . . if the individual is qualified, and if the position is vacant within a reasonable amount of time.”[6] If the goal of the ADA is to level the playing field for disabled employees, then its laws should allow disabled workers to remain employed with their employers while performing work they are capable of doing.
Moreover, courts have argued that requests for reassignment should not be treated the same as a job application. The disabled employee has already been employed with the company, and in many cases, he or she has already proven to be a valuable addition to the employer’s team. While the ADA does not allow for preferential treatment for disabled applicants, disabled employees with proven success at the company should be given more job protection and reassignment rights than simply the right to apply and compete for the job.
Each situation is different and presents its own unique challenges. While Ohio currently only offers disabled employees the right to compete with other applicants for reassignment to a job they can perform, courts’ interpretation of the ADA is continuously evolving. If you believe you were wrongfully denied a reassignment request as an accommodation for your disability, or if you have other questions about your employment or employee rights, please reach out to us for a free consultation.
Employment and ADA Disability Attorneys in Columbus, Ohio
[1] 42 U.S.C. § 12102(1)(A)
[2] 42 U.S.C. § 12111(8)
[3] 42 U.S.C. § 12111(9)(B)
[4] Vinson v. Grant/Riverside Methodist Hosps., No. C2-99-1358, 2001 U.S. Dist. LEXIS 26372, *31 (S.D. Ohio Aug. 30, 2001).
[5] See, e.g., Vinson at *33
[6] 29 C.F.R. app. § 1630.2(o)