Anyone who has engaged in the ADA’s interactive process to provide a “qualified individual with a disability” (meaning that the individual has a “mental or physical impairment” that “substantially limits one or more major life activities”) with a “reasonable accommodation” that does not involve an “undue hardship” to enable them to perform the “essential functions of the job” knows just how challenging that task can be. You also know that all of the phrases I put in quotes are legal terms of art that are the subject of many, many lawsuits.
A particular challenge exists when an employee can no longer perform the job for which they were hired; the one that they were doing (with or without accommodation) before the onset of a current disabling circumstance. The question then arises: “is there another vacant position available that the employee could perform with or without accommodation?”
To be clear – it must be a vacant position. The ADA (and other anti-discrimination laws) does not require an employer “bump” an active employee from a job and replace them with someone else. But does the ADA’s “reasonable accommodation” requirement take priority over an employer’s policy to always hire the “best qualified” applicant for the job?
The EEOC takes the position that it does. A number of Federal Appellate courts do not agree. Recently, in EEOC v. Methodist Hospitals of Dallas, 2023 U.S. App. LEXIS 6598 (5th Cir. 2023), the Fifth Circuit joined the group of disagreeing courts to hold that a “mandatory reassignment” obligation that would violate the employer’s policy to hire the “most qualified applicant” is not reasonable “in the run of cases.”
Adrianna Cook was a patient care technician who applied for a scheduling coordinator position after she suffered a work-related injury. Hospital policy required that a disabled employee who requested a permanent reassignment had to compete for a vacant position. This, said the hospital, was because of its policy to hire “the most qualified applicant available.” Cook applied. She was not selected. A more qualified candidate was hired.
The EEOC sued. The issue of “reassignment to a vacant position” was addressed by the Supreme Court in US Airways, Inc. v. Barnett, 535 U.S. 391 (2002). The Barnett Court asked whether the ADA requires an employer to reassign a disabled employee to a position, even though another employee is entitled to hold the position under an employer’s bona fide and established seniority system. It held that such reassignment is not a reasonable accommodation.
The Fifth Circuit expanded Barnett’s reasoning to the hospital’s “most qualified applicant” policy. The court said that to do otherwise would put aside the reasonable expectations of other employees and impose “substantial costs on the hospital and potentially on patients.” In reaching this conclusion the Fifth Circuit joined the Fourth, Eighth and Eleventh Circuits. See, e.g., Elledge v. Lowe’s Home Ctrs., LLC, 979 F.3d 1004 (4th Cir. 2020). It noted that the Tenth Circuit has held differently. The Seventh Circuit has suggested in dicta that it would likely agree with the Tenth Circuit.
The Fifth Circuit also stressed that this is not a “never, ever” situation. An ADA plaintiff can still show that “special circumstances” would require an exception to an employer’s “most-qualified” policy.
The takeaway here? While helpful, this decision is not a “get out of jail free” card for employers. Employers are still required to engage in the interactive process and moving someone into a vacant position that they can perform with or without a reasonable accommodation is not a bad thing. While employers should of course always try to hire the best applicant for the job, ask yourself this question: if all of our hiring choices were scrutinized closely, would a third party find that we’ve always done so?