The Americans with Disabilities Act (ADA) lists reassignment to a vacant position as a possible reasonable accommodation for a qualified individual with a disability. Reassignment is considered by the Equal Employment Opportunity Commission (EEOC), which enforces the ADA, to be an “accommodation of last resort” to be explored only when there is no accommodation that would permit an employee to continue to perform the essential functions of his or her current job.
The Seventh and Tenth Circuits have held that, where job reassignment to a vacant position is a reasonable accommodation option, an individual with a disability must be given a preference for the position (as long as he or she is minimally qualified for the new job) – even where there are more qualified candidates.
The important issue of whether a preference in reassignment is required is now before the Eleventh Circuit in St. Joseph’s Hospital v. EEOC. In response, NT Lakis lawyers recently filed a friend-of-the-court brief in the case arguing that the ADA does not require an employer, as a reasonable accommodation, to automatically reassign a marginally qualified, disabled employee over a more-qualified (but non-disabled) candidate . Rather, we contend that the ADA rejects an ordained outcome simply based on a person’s disability.
A copy of the brief is available here.