A new court ruling serves as a good reminder about the importance of engaging in an interactive dialogue with employees to determine reasonable accommodations for employees with disabilities – including a possible reassignment accommodation – and providing clear and consistent employment decisions.
In this case, an employee sued his former employer, alleging that it discriminated against him based on disability and his age. According to the lawsuit, the employee worked as a customer service technician whose job duties included driving a company truck to pick up and deliver medical equipment to hospitals and nursing homes. The company announced plans to transition its fleet of trucks from 12-foot trucks to 14-foot trucks. The extra two feet required a special Department of Transportation license, which the employee could not qualify for because he was born blind in one eye.
The employee notified his employer that he couldn’t secure the license because of his disability. He alleged that his supervisor told him that there were other opportunities within the organization, including a hospital service technician role that did not require the DOT license.
After the company finished replacing its trucks, it informed the employee that it was terminating his employment in two weeks because he did not qualify for the DOT license. The employee then requested to be reassigned to a different position as a hospital service technician. The employer did not think he could handle the physical demands of the hospital service technician job, so it terminated his employment.
The Court’s Decision
The Americans with Disabilities Act. The Americans with Disabilities Act prohibits discrimination against a qualified individual on the basis of a disability. Discrimination can include failing to make reasonable accommodations to known physical or mental limitations of an otherwise qualified individual.
The employee alleged that he was discriminated against based on the company’s alleged failure to accommodate him. He alleged that the defendant failed to accommodate him in two ways: (1) The company did not offer him an accommodation within the customer service technician position, and (2) it did not reassign him to the hospital service technician position.
Accommodation within the customer service technician position. The Court found that a DOT license was essential to the customer service technician position, and since the employee did not come forward with any evidence that an accommodation would solve his inability to obtain this license, his first failure to accommodate claim failed. And, the Court noted that the claim also failed because he never asked for any accommodation in the customer service technician position – instead he asked for reassignment.
Reassignment to the hospital service technician position. Reassignment to a vacant position is a possible reasonable accommodation under the ADA, and is often referred to as “the accommodation of last resort.” In this case, the company tried to argue that the employee’s request for reassignment came too late, after the decision to terminate already occurred, and in any event, he never applied for a hospital service technician job. But the Court decided to leave it up to a jury whether the company violated the ADA when it did not make the reassignment that the employee asked for, or whether his request was too late.
Age discrimination. The employee also asserted a discrimination claim under the Age Discrimination in Employment Act, which prohibits discrimination on the basis of age against individuals who are over 40. The plaintiff alleged he was discriminated against on the basis of his age, when the company failed to reassign him to the hospital service technician role. The company argued that it did not reassign him because he never formally applied for the job. But the Court found that a jury could find that explanation to be pretext for discrimination because the company gave inconsistent reasons for not reassigning him after the hiring supervisor testified that the job was physically challenging even for young and healthy workers, and he didn’t want the employee – who was neither young nor particularly healthy – to get hurt. Because there were inconsistencies in the employer’s reason for not reassigning the employee, the court also sent the age discrimination claim to a jury to decide whether the company discriminated against him.
What Employers Can Learn From This Case
First, employers should not forget that reasonable accommodations may include more than modifications to an employee’s current position. A reasonable accommodation can include reassignment to a different vacant position. After exhausting options for accommodation in an employee’s current position, a typical last step in the interactive dialogue is to look at vacant or soon-to-be vacant jobs that the employee is qualified for and could perform with or without a reasonable accommodation. And remember: if the employee with a disability is qualified for the vacant job, he should not typically have to compete for it against other candidates; the reassignment should be made as a reasonable accommodation (at least in some jurisdictions).
Second, employers should note the importance of engaging in the interactive process, which ordinarily begins with the employee providing notice of her disability and expressing a need for an accommodation, which might include reassignment. Both the employer and the employee have an obligation to engage in an interactive dialogue with one another.
Finally, employers should be clear and consistent when making and explaining their employment decisions. Any inconsistencies may create challenges later, so employers should be careful not to give multiple competing reasons for employment decisions.