Since Congress amended the Americans with Disabilities Act revising the definition of “disability” and greatly expanding the number of individuals who are “disabled” and therefore entitled to reasonable accommodation, employers spend large amounts of time engaging in the interactive process to determine whether there are reasonable accommodations that will enable otherwise qualified individuals to perform the essential functions of the job.
In a decision earlier this week, the U.S. Court of Appeals for the Eleventh Circuit, held that when an employee is unable be accommodated in her present position and the employer allows the employee to seek out reassignment or transfer to another position within the employer’s operations, the employer is not required, as a matter of law, to make that search for another position competition free. The Court further held that the employer’s allowance of thirty days to the employee to search for other internal employment was also reasonable as a matter of law where the employer also agreed to consider extending the time period for any position for which the employee was being considered.
This case is significant in that the EEOC has historically taken the position that not only is reassignment to a vacant position a reasonable accommodation, the employer must also provide the disabled employee with a preference in being reassigned (or a competition-free reassignment) to the vacant position. The Eleventh Circuit has squarely rejected the EEOC’s position that disabled employees seeking reassignment to a vacant position are entitled to a superpriority over other qualified applicants for the position. The Eleventh Circuit joins the Eighth and Fifth Circuits that have likewise rejected the concept that disabled employees are entitled to affirmative action or preferential treatment in reassignment to a vacant position as a reasonable accommodation.
You read all the facts from EEOC v. St. Joseph’s Hospital, Inc. here.