Professional Service Agreement

Federal Appellate Court Holds that ADA Does Not Require Reassignment Without Competition

December 19, 2016

The Equal Employment Opportunity Commission (EEOC) suffered a setback in its attempt to establish that the Americans With Disabilities Act (ADA) requires an employer to reassign an employee to an available position without having to compete with other candidates for that position. The Eleventh Circuit Court of Appeals held that a Florida District Court correctly interpreted the ADA when it held that there is no mandate for noncompetitive reassignment as an accommodation.

The case involved a disabled nurse who sought accommodation under the ADA because she required the use of a cane. The Employee could not continue working in her existing position while using a cane because it was a safety hazard and she therefore sought reassignment to another unit in the Hospital. She was given the opportunity to apply for other jobs in the Hospital, but she had to compete with other candidates for them. The Employee did not meet the Hospital’s requirement for internal candidates to have been in their position for 6 months and to have no final written warnings. The Hospital agreed to waive these requirements as an accommodation. The Employee applied for seven positions and the EEOC argued that she was qualified for three of them. For various reasons the Hospital determined that other candidates were better qualified and the Employee was not selected. When she did not obtain another position, the Hospital terminated her employment. The EEOC filed suit claiming the Hospital violated the ADA by not reassigning the plaintiff to a vacant position without requiring her to compete with other applicants for those jobs.

The court found that Employee was disabled and that she was qualified with respect to the jobs she was seeking. However, the court concluded that “the ADA does not require reassignment without competition for, or preferential treatment of, the disabled.” The court acknowledged that reassignment to a vacant position is a potential accommodation that may be reasonable in some circumstances. The court compared the Hospital’s policy to hire the best-qualified applicant to seniority systems. Previous cases have held that it would be unreasonable to require an employer to reassign disabled workers in contravention of its seniority system. Similarly, the court stated that “passing over the best-qualified job applicants in favor of less-qualified ones is not a reasonable way to promote efficiency or good performance.” As such, the Hospital should not be required to undermine its policy requiring the best qualified candidate to be selected for a position.

SESCO recommends that clients review all applicable policy and practices to ensure compliance. For assistance, contact us at 423-764-4127 or by email at