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Tuesday, July 7, 2015

The Importance of Reassignment as a Reasonable Accommodation under the ADA; By Rachel M. Weisberg

as shared by Disability.gov

Rachel M. Weisberg, Staff Attorney, Equip for Equality
By Guest Blogger Rachel M. Weisberg, 
Staff Attorney, Equip for Equality (photo)

On June 11, 2015, the Equal Employment Opportunity Commission (EEOC) and United Airlines announced a landmark consent decree resolving ongoing litigation about what it means to reassign an employee as a reasonable accommodation under the Americans with Disabilities Act (ADA).

To understand the significance of this agreement, we must first understand why reassignment as a reasonable accommodation is so important. When Congress passed the ADA in 1990, it recognized the need for a national legal framework to protect the employment rights of people with disabilities. Employment is a hugely important part of our collective lives. In addition to a paycheck, a job can provide other benefits, such as self-esteem and a sense of belonging, and for 25 years, the ADA has helped employees with disabilities obtain and maintain employment.

Perhaps one of the most important protections for employees is the requirement that employers provide reasonable accommodations to qualified applicants and employees. Reasonable accommodations empower us to think creatively about how a job is performed. Sometimes just by thinking outside of the box and by engaging in the interactive process, employees and employers alike are able to identify solutions to keep an employee in the workforce. From adaptive equipment to modified schedules to restructured job duties to auxiliary aids and services, the list of possible accommodations that enable an employee with a disability to perform the essential functions of a job is endless.

Sometimes, however, even with creative thinking and the interactive process, it becomes clear an employee is unable to perform the essential functions of her position, even with accommodations. This might happen if an employee acquires a new disability or experiences new or more severe restrictions due to a progressive disability. For these employees and their employers, the ADA offers another variety of reasonable accommodation: reassignment to a vacant position.

Reassignment is commonly referred to as an accommodation of last resort for two reasons. First, before considering reassignment, employers and employees should consider whether it is possible to accommodate an employee in her current position. Second, employers only need to reassign employees to a vacant position and some employers, especially smaller ones, may not have regular vacancies. Still, exploring reassignment as a reasonable accommodation is crucial, as it can be the difference between gainful employment and termination, retirement or disability leave.

The ADA defines “reasonable accommodation” to include “reassignment to a vacant position,” 42 U.S.C. § 12111, and in 2002, the U.S. Supreme Court confirmed that reassignment can be a reasonable accommodation for employees with disabilities, see U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002). Despite these clear proclamations, for many years, courts remained divided as to what the ADA required, exactly, when it came to reassignment. Some courts said reassignment requires employers to permit an employee to compete for the vacant position, while others said it requires employers to place an employee in the vacant position, subject to certain exceptions.

In 2012, however, the U.S. Court of Appeals for the Seventh Circuit in EEOC v. United Airlines, 693 F.3d 760 (7th Cir. 2012), took a step toward shoring up the judicial disagreement when it joined other courts and held that, absent a bona fide seniority system, reassignment as a reasonable accommodation requires employers to place employees with disabilities in a vacant position for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to the employer. This is true even if there are more qualified applicants for the position. United appealed the court’s decision to the U.S. Supreme Court, which declined to hear the case.

Under the terms of the consent decree announced in June 2015, United will pay over $1 million to a small class of former employees and will implement changes to its national reassignment policy so that it is consistent with the Seventh Circuit’s ruling. Many in the disability rights community are hopeful that the United Airlines ruling and consent decree will have a ripple effect among employers.

In my work as a disability rights attorney, I speak regularly with clients who are no longer able to perform the essential functions of their current job, even with accommodations, and need reassignment. Despite the law regarding reassignment, I hear stories from client after client about how their requested accommodations were denied and then without any discussion of reassignment, the employee is placed on involuntary leave, or worse, fired.

Every employer should be engaging in the interactive process and the law is now clear that if an employee cannot be accommodated in her current job, reassignment to a vacant position, in most jurisdictions with limited exceptions, is required. Thus, as part of the interactive process, employers should be searching their systems for open positions and be open and communicative with employees about these vacancies. Employees should be explicit in requesting reassignment and should do what they can to identify vacant positions as well.

As we continue into the 25th year of the ADA, I hope the ADA continues to provide employment protections to applicants and employees with disabilities. One way this can happen is if the important implications of the EEOC v. United Airlines decision are realized – if employers understand their obligations to place employees with disabilities in vacant positions, thereby enabling employees to maintain steady employment.

About Disability.gov Guest Blogger:
Rachel Weisberg is a Staff Attorney at Equip for Equality where she litigates individual and systemic disability discrimination cases under Titles I, II and III of the ADA. Rachel also manages the Illinois ADA Project, which provides ADA information and trainings. In this capacity, Rachel has given numerous presentations on the ADA to people with disabilities, family members, employers, businesses, medical professionals, attorneys, service providers and advocacy organizations. In 2014, Rachel was awarded a Chicago Bar Foundation Sun-Times Public Interest Law Fellowship.

Prior to Equip for Equality, Rachel worked as an assistant attorney general in the Civil Rights Bureau and Disability Rights Bureau of the Illinois Attorney General’s Office, a labor and employment associate at Sidley Austin LLP and a law clerk for Chief Judge James G. Carr in the Northern District of Ohio. Before law school, Rachel worked as an ADA technical assistance specialist at the Mid-Atlantic ADA Center, and during law school interned with the Disability Rights Section of the U.S. Department of Justice. She is a 2008 graduate of Northwestern University School of Law and a 2003 graduate of the University of Michigan.


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