Can an employer have a categorical policy of hiring the most qualified candidate when a qualified disabled employee requests reassignment to a vacant role, even if he or she is not the most qualified applicant? The U.S. Equal Employment Opportunity Commission says no.
But the EEOC doesn’t wear the black robe and bang the gavel.
So, let’s see what the Chief Judge and two Circuit Judges in the Fifth Circuit Court of Appeals had to say in this opinion.
The underlying facts involved a hospital employee who suffered a back injury at work. The Fifth Circuit described a rather ham-handed accommodation process. Basically, if injured employees could not return to work, they could request short-term disability benefits and leave under the Family Medical Leave Act (FMLA). If, however, an employee’s disability required permanent reassignment, the employee was to compete for job openings pursuant to the hospital’s policy to hire “the most qualified applicant available” for every vacancy.
So, let’s talk about that job vacancy policy. Is it legal?
In 2002, the Supreme Court ruled (7-2) that the Americans with Disabilities Act (ADA) does not require an employer to reassign a disabled employee to a position as a reasonable accommodation even though another employee is entitled to hold the position under the employer’s seniority system. In that case, the Supreme Court devised a two-part test.
- If the accommodation seems reasonable on its face, the employer can show special (typically case-specific) circumstances that demonstrate undue hardship in the particular circumstances.
- The employee can attempt to show particular case-specific circumstances to persuade a factfinder that the accommodation is reasonable.
Several Circuits (the Fourth, Eighth, and Eleventh) have concluded that, like a seniority system, a “most qualified applicant available” policy satisfies step one. The Tenth Circuit disagreed and the Seventh Circuit hinted it would too.
The Fifth Circuit sided with its sister circuits in the Fourth, Eighth, and Eleventh:
The EEOC’s proposed course of action turns the shield of the ADA into a sword, casting the equally reasonable expectations of other workers to the side. . .[A] disability-neutral policy stabilizes employee expectations. It invites, rewards, and protects the formation of settled expectations regarding hiring decisions. It recognizes that basic fairness in such a context rests atop an often-rickety three-legged stool, whose legs are the employer, the disabled employee, and—easiest to neglect—the other employees. Further, such discretion is fundamental to the employer’s freedom to run its business in an economically viable way. (cleaned up).
But, the Fifth Circuit did remand the case to the lower court to determine whether case-specific circumstances would permit the plaintiff to get the transfer accommodation over someone more qualified.
If you run a hospital in the Fifth Circuit, this is a very good decision for you. For the rest of you, don’t put as much stock in it. Where lives aren’t literally on the line, it may be more difficult to establish that a blanket “most qualified applicant available” policy is consistent with the ADA.
Regardless, any qualified individual with a disability needing an accommodation should have the opportunity to compete for a vacant position. Also, consider other possible accommodations such as leave, light duty, and removal of non-essential job functions to accommodate that person in lieu of a transfer.