District Court Upholds Policy that Disabled Employees Compete for Vacant Positions

March 27, 2017

In a decision impacting the interactive process, the U.S. District Court for the Northern District of Texas held that employers do not violate the Americans with Disabilities Act (ADA) by requiring individuals with disabilities that need reassignment as a reasonable accommodation to compete for vacant positions.

Plaintiff, a former patient care technician, requested an accommodation after an on-the-job injury precluded her from performing the required duties of lifting and transporting patients. Though she met the minimum qualifications for two vacant positions, she was not chosen for the positions and was terminated. The Equal Employment Opportunity Commission (EEOC) alleged that the Hospital maintained an unlawful policy by requiring individuals with disabilities to compete for vacant positions where the individual was qualified for the position. The Hospital argued that the EEOC was attempting to mandate additional affirmative action not required by the ADA by asserting that the employer could not choose the most qualified applicant for a vacant position.

Central to the issue in this case, the ADA lists reassignment to a vacant position as a form of reasonable accommodation. Although the Fifth Circuit has not directly addressed this issue, the court reviewed the authority in the Fifth Circuit regarding affirmative action for reassignment and determined that the Fifth Circuit would likely hold, similar to the Eleventh and Eighth Circuits, that the ADA does not require preferential treatment for reassignment and merely requires employers to allow individuals with disabilities to compete equally for vacant positions.

When an employee seeks reassignment to a vacant position as a reasonable accommodation, employers should work with counsel to determine whether they can require that employee to compete with other applicants for that position.