Does the ADA Require Preferences in Hiring for Applicants with Disabilities?

By Eric B. Meyer October 12, 2017

​Suppose that you employ someone who, during the course of his employment, becomes disabled. This disability makes it impossible for the employee to perform his current job.

Meanwhile, there is another open position that your company has been looking to fill. In fact, you found a highly-qualified candidate. Except, here's the thing: The disabled employee is also qualified to perform this job—just not as qualified.

The Americans with Disabilities Act (ADA) requires an employer to provide a reasonable accommodation to a qualified individual with a disability where doing so will allow that individual to perform the essential functions of the job without creating undue hardship for the employer. One such accommodation is a transfer to another open position for which the employee is qualified.

Does the ADA require minimally-qualified disabled employees to be granted special preferences in hiring over nondisabled applicants?

That was the question a South Carolina federal court had to resolve in this opinion. And I'll get to that in a sec.

Before I do, I want to emphasize that courts across the country are divided on this issue. The Fifth, Eighth, and 11th Circuits follow the "opportunity to compete" view. So, in our example, the employee would have the opportunity to compete for the other open position. But, he would not be entitled to the position as a matter of law.

Conversely, the 10th and D.C. Circuits follow the "mandatory preference" view. In our example, it would not matter if the disabled employee was less qualified or even the least qualified. As long as he can handle the new job, and there is no other available reasonable accommodation, he gets it. This is also the position of the Equal Employment Opportunity Commission.

So your mileage may vary. And where did the South Carolina court come down on this issue? Well, it kind of punted, but it did offer some important guidance in cases where the employee does not ask for a job transfer:

"[I]t should be noted that in each of the above cases … the employees actually requested reassignment as an accommodation; that is, they sought reassignment to a specific vacant position(s). Here, the undisputed evidence shows that Whitten effectively rejected reassignment alternatives that arose during the six months she was on a medical leave of absence because she was dissatisfied with the drastically reduced pay that would have come with those alternatives. By the time Whitten eventually communicated to McLeod that she was interested in the Monitor Technician position, she had already been discharged, and the ADA's rules for reassignment of 'employees' no longer applied to her."

But shouldn't the employer have taken matters into its own hands, reassigned first, and asked questions later? Nope.

"To put it succinctly, Plaintiff's first objection—that '[t]he Report errs in its legal analysis of and conclusion with regard to whether the [ADA's] reasonable accommodation provision requires an employer to affirmatively reassign a disabled employee to a vacant position when the employee satisfies the position's basic qualification standards and expresses a desire in the position'—is a complete red herring."

In other words, the employee must express some desire in a job transfer before the onus could shift to the employer to transfer.

Employer Takeaways

Again, remember, your mileage may vary. This is strictly a South Carolina decision. So, if you find yourself in this situation, consult an employment lawyer.

However, before you get to this crossroads, consider other alternatives to a job transfer. Maybe some unpaid time off could be a reasonable accommodation. Or light duty. Or reassignment of nonessential job functions. And how do you figure out which accommodation(s) may work? Talk to your employee. Have a good-faith, interactive dialogue to explore the possible options.

Eric B. Meyer is a partner at law firm Dilworth Paxson in Philadelphia. © 2017 Eric B. Meyer. All rights reserved.

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