Reassignment to a vacant position must be considered as a reasonable accommodation
 Aug. 23, 2013

The U.S. Supreme Court on May 28, 2013 let stand a lower court's ruling that employers may be required to reassign a disabled employee to a vacant position as "reasonable accommodation" under the Americans with Disabilities Act (ADA) if the employee can't perform his or her current job. The closely watched case United Airlines v. EEOC ended when the Supreme Court denied the airline's petition to have it review a 2012 decision by a federal Court of Appeals. The Supreme Court's decision not to hear the case means the EEOC can now go back to court to try to prove that disabled but qualified United employees should be reassigned to vacant positions.

The EEOC's original lawsuit charged that United violated the ADA by requiring workers with disabilities to compete for vacant positions instead of being reassigned. The EEOC alleged that the practice frequently forced Disabled employees out of United's workforce. The 7th Circuit found that "the ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to the employer.

The California Fair Employment & Housing Act (FEHA) is even broader. The regulations specify that reassignment to a vacant position is mandatory when the disabled employee cannot perform essential job functions of his/her own, even with a reasonable accommodation, the employee is qualified for the reassignment and it can be performed consistent with the employee’s restrictions. The regulations state:

"The employee with a disability is entitled to preferential consideration of reassignment to a vacant position over other applicants and existing employees. However, ordinarily an employer is not required to accommodate an employee by ignoring a bona fide seniority system absent a showing that special circumstances warrant a finding that the requested accommodation is reasonable on the particular facts, such as where the employer reserves the right to modify its seniority system or the established practice is to allow variations to its seniority system."

In the context of an interactive process, after considering potential alternatives to effectively accommodate an employee with modifications or adjustments to his regular job or other environmental changes, an employer may conclude that a reassignment to a “comparable” vacant position for which he is qualified offers the best opportunity to reasonably accommodate his work restrictions. As long as the interactive process explores in good faith all options for reasonable accommodation, the reassignment can be defended even if this is not the employee’s preferred accommodation. It is important, however, to be sure the reassignment is to a comparable position that the employee can perform and to have a constructive dialogue with the employee to obtain his/her agreement on the reassignment as a reasonable accommodation.

Patricia S. Eyres (Patti) is Managing Partner of Eyres Law Group, LLP. She is a Phi Beta Kappa graduate of Stanford University and earned her law degree from Loyola Law School, cum laude in 1977. Patti calls herself a “recovering litigator,” who knows first-hand the value of paying attention to prevention. After spending 18 years devoted exclusively to defending companies in the courtroom, she resolved to help business leaders recognize potential legal landmines before they explode into lawsuits. She brings a unique and practical perspective to the critical legal issues impacting the workplace. As CEO/Publisher of Proactive Law Press, LLC, , Eyres supervises the production and publication of books, training materials and educational products for business owners, public school administrators, front-line leaders, HR and Risk Managers. She can be reached at or 480-607-5847.


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