|Photo by Taber Andrew Bain|
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The agency claimed that the employer’s return-to-work policy—which allegedly refused to consider transfers to open positions for disabled employees, but instead required the employees to apply for and compete for vacant position upon their return to work—violated the ADA.
The law guiding this issue under the ADA is … complicated.
- The EEOC’s position is consistent with the settlement of the American Airlines lawsuit—so long as a disabled employee is otherwise qualified for a vacant position, an employer must consider transfer as reasonable accommodation. Some courts, such as the 8th Circuit and 10th Circuit, have adopted this position.
- Some courts, like the 6th Circuit and 7th Circuit, conclude that an employer satisfies its reasonable accommodation obligation if it offers a disabled employee priority consideration for a vacant position over a similarly qualified applicant.
These differing views present employers with the two very different options:
Hire the most qualified person and deny the open position to a less qualified disabled employee.
Automatically award an open position to a qualified disabled employee, even if a better qualified applicant is available and despite an policy to hire the best person for the job.
Offer the disabled employee priority consideration for the vacant position.
Employers must act cautiously when faced with this thorny issue. While the legal answer will vary depending on your jurisdiciton, the EEOC’s recent $9.8 million settlement may sway your application of these rules in practice.
Let me suggest, however, that, as a general matter, when you don’t hire the best person for an open position (disabled or not), it could lead a court to second-guess your judgment and question why a member of another protected class was overlooked in favor of the second/third/fourth/whatever best person.
Recognize, however, that this issue remains unsettled, and declining to accommodate a disabled employee by transferring that employee to an open position could result in a violation of the ADA and your company landing on the EEOC’s costly radar.