EMPLOYERS DO NOT HAVE TO GIVE PREFERENCE TO DISABLED WORKERS IN ASSIGNMENTS TO OPEN POSITIONS

A federal appeals court has ruled that employers do not have to reassign disabled workers into open positions ahead of other more qualified persons.  EEOC v. St. Joseph’s Hosp., 2016 BL 406826 (C.A. 11, 12/7/16).  Some of the cases rely on the U.S. Supreme Court ruling in U.S. Airways, Inc. v. Barnett, 535 U.S. 361, a 2002 decision holding that the ADA does not require employers to ignore established seniority systems in awarding reassignments when a disabled worker seeks reassignment as an accommodation.  The EEOC has often taken the position that disabled workers are generally entitled to reassignment free from competition from non-disabled workers, but several rulings indicate that an employer need  not override a best-qualified applicant policy.   The court states that employers are only required to provide "alternative employment opportunities reasonably available under the employer’s existing policies."  It further states that the ADA "is not an affirmative action statute" and "only requires [the employer] to allow [the disabled employee] to compete for a job, but does not require [the employer] to turn away a superior applicant."  Finally, the court indicates that giving the plaintiff thirty days to apply for another job within the company subject to an extension for any position for which the plaintiff was being considered, is reasonable as a matter of law.

Editor’s Note - While the court suggests that an employer need not give disabled workers "preferential treatment" in job reassignments, such situations are controversial and advice of counsel is recommended.