So you’ve studied the ins and outs of the ADA, and you’re comfortable with what seems to be its basic principle: Disabled people must be offered the same workplace opportunities as their non-disabled co-workers.
A new court decision says that in some cases, disabled workers must get preferential treatment.
There’s a long, twisted legal tale involved here, but the bottom line is this:
The 7th Circuit Court of Appeals (which covers Wisconsin, Illinois and Indiana) recently agreed with an EEOC claim that a disabled employee seeking a job transfer should be “advanced over a more qualified non-disabled person, provided only that the disabled person is at least minimally qualified to do the job.”
Translation: Unless you can prove hardship, a disabled employee gets approved for the job transfer, even if other, better-qualified employees have applied for the position.
The legal trail
In 2003, United Airlines established guidelines that addressed the reasonable accommodation of disabled employees. The guidelines provided that a transfer to an equivalent position may be a reasonable accommodation, but that the transfer process remained competitive.
Consequently, disabled employees would not automatically be placed into a vacant position, but instead, they would be given preferential treatment.
The EEOC challenged the guidelines, and a district court granted United Airlines’ motion to dismiss. The district court relied upon an earlier 7th Circuit ruling that “the ADA does not require an employer to reassign a disabled employee to a job for which there is a better applicant, provided it’s the employer’s consistent and honest policy to hire the best applicant for the particular job in question.”
On appeal, the EEOC argued that “reassignment to a vacant position” is a possible ADA reasonable accommodation, and it required the transfer of a disabled employee to a vacant position who lost his or her position due to a disability.
In the appeal, the judges relied on an earlier Supreme Court decision in which the high court outlined a two-step process to determine whether a job reassignment is required despite a disability-neutral rule of the employer.
The first step requires the employee to show that the type of accommodation seems reasonable on its face.
The second step varies depending on the outcome of the first step. If the employee shows that the accommodation is reasonable, the burden shifts to the employer to show special case-specific circumstances that demonstrate undue hardship.
A ‘must-implement’ policy
The key language in the Supreme Court decision: “(T)he simple fact that an accommodation would provide a ‘preference’ — in the sense that it would permit a worker with a disability to violate a rule that others must obey — cannot, in and of itself, automatically show that the accommodation is not reasonable.”
So the story ends with the 7th Circuit’s recent opinion: “The Supreme Court has found that accommodation through appointment to a vacant position in reasonable. Absent a showing of undue hardship, an employer must implement such a reassignment policy.”
The case is EEOC v. United Airlines.