The Equal Employment Opportunity Commission says “yes,” but a number of federal appellate courts disagree, including most recently the U.S. Court of Appeals for the Fifth Circuit, which asserted that “the EEOC’s proposed course of action turns the shield of the ADA into a sword, casting the equally reasonable expectation of other workers to the side.”
Under the Americans with Disabilities Act, employers must provide reasonable accommodations to enable employees with disabilities to perform their essential job functions or to enjoy the privileges and benefits of employment, unless the accommodation imposes an undue hardship on the employer. If an employee is unable to perform the essential functions of their original job, a possible accommodation is transfer to another position that they can perform, with or without additional reasonable accommodations. But are they entitled to the transfer, as long as they are minimally qualified, even if there are more qualified applicants for the role?
In EEOC v. Methodist Hospitals of Dallas, the hospital had a policy to hire “the most qualified applicant available” for every vacancy, and if an employee required reassignment because of a disability, they would compete for available job openings. The EEOC challenged the policy, arguing that the ADA required the hospital to make exceptions to its most-qualified-applicant policy as a reasonable accommodation.
The Fifth Circuit rejected the EEOC’s position, finding that mandatory reassignment in violation of the hospital’s most-qualified-applicant policy is not reasonable as a general proposition, although it may be reasonable in a specific case, depending on the circumstances. Quoting its sister Eighth Circuit, the Fifth Circuit stated that “the ADA is not an affirmative action statute and does not require an employer to reassign a qualified disabled employee to a vacant position when such a reassignment would violate a legitimate nondiscriminatory policy of the employer to hire the most qualified candidate.” Also quoting the Fourth Circuit, the Fifth Circuit went on to assert that, “Preferential reassignment improperly recasts the ADA—a shield meant to guard disabled employees from unjust discrimination—into a sword that may be used to upend entirely reasonable, disability-neutral hiring policies and the equally reasonable expectations of other workers.” Specifically as to the hospital, the Fifth Circuit also found that the EEOC’s position “imposes substantial costs on the hospital and potentially on patients,” whose lives “are on the line.”
This case is an interesting one for employers. If defending an EEOC charge on this issue, they should recognize that the EEOC will almost certainly require mandatory reassignment regardless of relative qualifications. But if the matter is escalated to a federal lawsuit, the Tenth and likely the Seventh Circuits would agree with the EEOC, while the Fourth, Fifth, Eighth, and Eleventh Circuits would not. But, to further complicate matters, there may be additional requirements under state law.