Thursday, November 11, 2010

Court makes clear that an ADA reasonable accommodation does not require preferential treatment in filling open positions

In Garcia v. Whirlpool Corp. (N.D. Ohio 11/5/10) [pdf], the trial court dismissed a disability discrimination claim because the plaintiff agreed that the individuals hired into the open position for which she sought reassignment as a reasonable accommodation were more qualified.

Here are the facts. Garcia had a 10-year history of shoulder problems relating to workplace injuries suffered on a Whirlpool assembly line. After her third shoulder surgery, which did not correct the problem, her doctor informed her that she had reached maximum medical improvement. Accordingly, she could not return to her assembly line position.

Whirlpool had a job bidding procedure, in which hourly employees, like Garcia, could bid on open positions. Whirlpool’s policy and practice was to hire the most qualified candidate, which it generally considered to be the qualified employee with the most seniority. Garcia expressed interest in and applied for several administrative, salaried, or supervisory positions. Ultimately, all of her applications were unsuccessful. Whirlpool awarded the jobs to employees with prior management experience, prior job-specific experience, or a college degree.

Ultimately, Whirlpool fired Garcia pursuant to its medical leave policy, which allowed for a maximum of two years of leave.

The district court disagreed with Garcia that Whirlpool owed her a transfer to one of the open positions as a reasonable accommodation. While the ADA requires an employer to consider reassignment to a vacant position if the disabled employee cannot be reasonably accommodated in his or her current job, it does not require a promotion as a reasonable accommodation. Thus, because none of the jobs for which Garcia applied were comparable to her assembly line job, and many would have been promotions, she could not prove that she was qualified to work with a reasonable accommodation.

Additionally, Whirlpool was entitled to fill the vacancies by following its internal policy and bidding procedure to hire the most qualified candidates. The court made it clear —at least in the 6th circuit and majority of other circuits—that the ADA does not mandate preferential treatment:

[T]he ADA does not impose a mandatory obligation to reassign the disabled employee where the employer has a policy of awarding the transfer position to the most qualified candidate, and the employer would be required to turn away a superior candidate.

Because Garcia could not contest that the individuals Whirlpool hired were more qualified, her ADA claim failed.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or

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