“Reassignment is the Reasonable Accommodation of Last Resort”
By Fiona W. Ong - Shawe Rosenthal LLP
May 13, 2021
So my partners and I have repeatedly written that, under the Americans with Disabilities Act (ADA), employers – not employees – get to choose among available accommodations to enable an employee with a disability to perform their essential job functions or enjoy equal privileges and benefits of employment. (See here and here, for example). But, as a federal appellate court recently explained, that principle is not without limitation – at least as to reassignment.
Various federal courts have consistently held that, if multiple reasonable accommodations are available, the employer may choose the accommodation. It need not be the best or most effective accommodation, as long as it enables the employee to perform their essential job functions. As recently as last fall, the U.S. Court of Appeals for the Fourth Circuit issued an opinion in which it asserted that, “To the extent an employee may be accommodated through a variety of measures, the employer, exercising sound judgment, possesses ultimate discretion’ over these alternatives.” That seems pretty straightforward, right?
Well, not so fast. In Wirtes v. City of Newport News, a police detective was unable to perform the essential functions of his job. He proposed several accommodations, but rather than considering his suggestions, the City gave him the options of a transfer to a civilian job he didn’t want or retirement. So he retired and sued for failure to accommodate. Noting that the ADA specifically includes “reassignment to a vacant position” in its list of examples of accommodations, the trial court found that the City had met its accommodation obligation under the ADA and dismissed the detective’s case.
On appeal, however, the Fourth Circuit (the same one that recently said the choice of accommodations was up to the employer’s discretion) now characterized reassignment as the “last among equals.” It concluded “that it is generally inappropriate for an employer to unilaterally reassign a disabled employee to a position the employee does not want when another reasonable accommodation exists that would allow the disabled employee to remain in their current, preferred position.” Wait, what? So actually, the employer isn’t really free to choose?
According to the Fourth Circuit, giving precedence to other forms of accommodation prevents either employers or employees from unilaterally insisting on a transfer. The Fourth Circuit considered this to be a “win-win-win” in that it protects employers’ discretion in hiring for the open position, helps employees stay in their position rather than “hurling” them into an unfamiliar one, and protects coworkers from being unfairly deprived of opportunities. Thus, the Fourth Circuit joined all the other circuits to have addressed this issue, as well as the federal Equal Employment Opportunity Commission, in finding that “an employer fails to accommodate its qualified disabled employee when it transfers that employee from a position they could perform if provided with reasonable accommodations to a position they do not want.”
The Fourth Circuit made clear, however, that it was not holding that an employer can never reassign an employee where there are reasonable accommodations that would keep the employee in their position. And it said that, of course, employers and employees can agree to a voluntary transfer in lieu of other accommodations. But, as a general matter, reassignment is “strongly disfavored when an employee can still do their current job with the assistance of a reasonable accommodation, and that reassignment should therefore be held in reserve for unusual circumstances.”
So that principle that employers get to pick the reasonable accommodation? Well, I guess that applies only to accommodations that keep the employee in their original job. And employers should certainly engage in the required interactive discussion with the employee to explore what those accommodations might be before even thinking about transfer as an option. And if the employer decides on transfer despite the availability of other accommodations, they better have a darned good explanation for why, because they may end up having to share that explanation with the EEOC, a court or a jury!