Congress designed the Americans with Disabilities Act (ADA) with the goal of ensuring that People with Disabilities in this nation have equal access to employment opportunities, public accommodations, and government services. Even though most anti-discrimination statutes ban decisions based upon a person's class status such as gender or race, the ADA requires entities to take affirmative steps to accommodate people who experience a form of disability. In relation to employment, the ADA commonly requires employers to make reasonable accommodations for employees with disabilities.
It may seem obvious that the ADA's reasonable accommodations provision clearly states that an employer is engaging in discrimination of they fail to make reasonable accommodations to the known mental or physical limitations of an otherwise qualified person with a disability who is an applicant or employee, unless the employer can demonstrate that the accommodation would impose an undue hardship to the operation of their business. The fact is; however, that the ADA does not explicitly define the term, 'reasonable accommodation.' Instead, the ADA presents a number of examples of accommodations that are acceptable. The ADA suggests reasonable accommodations include things such as part-time or modified work schedules, job restructuring, or reassignment to positions that are vacant. In practice, employers today often times satisfy ADA requirements by providing employees with auxiliary aids, services, modified policies, practices, and procedures.
One of the more controversial questions to arise since the ADA passed has involved whether or not an employer must reassign an employee who can no longer perform their job due to a form of disability. Years of arguments and conflicting decisions have followed this controversy and now the answer is plain; yes, an employer must. Nearly every federal court in America has agreed with the Equal Employment Opportunity Commission (EEOC) that an employer has to consider reassignment of an employee in such a circumstance. A number of additional issues have been raised, unfortunately. These issues include:
While these are legitimate questions concerning the range of an employer's reassignment obligations, there are some points that are clear. The first of these is that reassignment is something that is available only to employees and not people who are applicants. The EEOC's position is that probationary employees might also be entitled to reassignment if they have been performing their jobs to their employer's satisfaction. The second point that is clear is that an employer does not have to remove another employee from a job position in order to create a vacant one. The third point is that an employer does not have to promote an employee as a reassignment. Some courts in America have stated this means an employer does not need to promote another employee from a part-time position to a full-time one, or from an hourly position to a salaried one. The fourth point is that a person must only be reassigned to a job they are qualified to perform with an accommodation if needed.
With a few exceptions, the courts have agreed with the EEOC that reassignment is an accommodation of last resort; something to be considered when an employee cannot be accommodated in their job, or if both the employer and the employee have agreed that reassignment is what they desire. In one example, Skerski V. Time Warner Cable, the employer offered to reassign a cable installer who was unable to climb due to a panic disorder to a warehouse position. The employee wanted an accommodation so he would have the ability to continue performing his job as an installer. The court decided that if the employee could be accommodated in his job as an installer using a bucket truck for example, then reassignment to a warehouse position would not satisfy the requirements of the ADA.
Another question that has arisen is, 'What is an employer's obligation if there is a non-disabled candidate who is equally or better qualified for a vacant position' The Seventh Circuit Court of Appeals, whose rules govern in Illinois, Wisconsin and Indiana has recently reversed its position related to this question.
What is the employer's obligation if there is an equally or better qualified non-disabled candidate for the vacant position in question? The Seventh Circuit Court of Appeals (Seventh Circuit), whose rulings govern in Wisconsin, Illinois and Indiana, recently reversed its position on this issue.
The year 2000 found the Seventh Circuit holding, in EEOC v. Humiston-Keeling, that the employer's duty to reasonably accommodate the employee with disabilities did not require it to reassign the employee to a vacant position if a more qualified candidate had also applied. At the time that Seventh Circuit stated that favoring people with disabilities in the situation was, "affirmative action with a vengeance," and was something which would create, "a hierarchy of protections for groups deemed entitled to protection against discrimination."
Under a new ruling adopted by EEOC v. United Airlines; however, employers have a duty under the ADA to reasonably accommodate an employee with disabilities by reassigning the employee to a position that is equivalent and vacant and for which the employee meets the minimum qualifications. The employer must do so even if a more qualified candidate has applied for the job - as long as the reassignment would not create an undue hardship for the employer. The employee with disabilities still must meet the minimum qualifications for the position they will be reassigned to.
What this means is the employee with disabilities must satisfy the education, skills, experience, and additional requirements of the job position for which they will be reassigned. The employee must have the ability to perform the essential functions of the new job, with or without reasonable accommodations. The employee with disabilities does not; however, need to be the most qualified person for the position.
An employer is not obligated to assist an employee with disabilities to become qualified for a new job position. What this means is that an employer does not need to provide an employee with disabilities with training so the employee can acquire the skills for a position they would be reassigned to. The employer; however, would have to provide any training that is usually provided to anyone who would be placed in the job position.
What about a job position? A position is something that will generally be considered vacant if it is available when an employee with disabilities asks for a reasonable accommodation, or if the employer is aware that the position will become available within a reasonable period of time. A job position is one that is considered vacant even if the employer has already posted an announcement or notice looking for applicants. An employer is not obligated to bump an employee from a job to create a vacancy, or create a new position, in order to accommodate an existing employee with disabilities.
Citations and Resources:
Mandatory Reassignment under the ADA
The ADA does not explicitly define the term "reasonable accommodation"; instead, it provides a series of examples of acceptable accommodations.
Understanding the ADA's 'Reassignment' Obligation
The EEOC has said that when reassigning an employee, the reassignment must be to a vacant position that is equivalent in terms of pay, status, geographic location, etc., if the employee is qualified for the position.
What Is Customized Employment
Customized employment is a flexible process designed to personalize the employment relationship between a job candidate and an employer in a way that meets the needs of both.
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