The Fifth Circuit recently held that a disabled employee was not entitled to a job reassignment as a reasonable accommodation because the employee was not the "most qualified applicant available" for the position. This is the latest decision in split rulings from several circuits, so employers should pay close attention to this developing issue to make sure their job reassignment policies align with the Americans with Disabilities Act (ADA).
In Equal Employment Opportunity Commission v. Methodist Hospitals of Dallas, a patient care technician for a regional hospital applied for a scheduling coordinator position after suffering a work-related injury while turning a patient. At the time, the hospital allowed injured employees who were unable to return to work to request short-term disability benefits and leave under the Family and Medical Leave Act of 1993. The hospital required any disabled employee requesting a permanent reassignment to compete for open positions pursuant to its policy of hiring "the most qualified applicant available." Based on this policy, the hospital selected a more qualified candidate for the scheduling coordinator position.
The EEOC filed suit on behalf of the employee in the U.S. District Court for the Northern District of Texas under the ADA. The lawsuit challenged the hospital's categorical policy of hiring the "most qualified applicant available" and the alleged failure of the hospital to "reasonably accommodate" the employee in declining to reassign her to the scheduling coordinator position. The district court granted summary judgment in favor of the hospital on both claims.
The ADA prohibits employers from discriminating against any qualified individual based on the individual's disability. As here, an ADA discrimination claim premised on an alleged failure to "reasonably accommodate" requires proof that:
- The employee has a disability covered under the ADA.
- The employee is qualified to perform the "essential functions" of his or her job with or without accommodation.
- The employer knew of the disability and its consequential limitations on the employee.
- The employer failed to make reasonable accommodations for such known limitations.
Reassigning a disabled employee to a vacant position can qualify as a reasonable accommodation under the ADA. Once a disabled employee requests a reasonable accommodation, the employer is required to engage in an "interactive process" with the employee to best determine what reasonable accommodations are available under the circumstances.
The Fifth Circuit affirmed the district court's holding that the hospital did not violate the ADA by declining to reassign the employee to the scheduling coordinator position. Notably, the Court cited the employee's failure to respond to an offer by the hospital to extend the employee's leave period for an additional six months as a "breakdown in the interactive process."
In deciding whether the hospital's policy violated the ADA, the Fifth Circuit relied on the U.S. Supreme Court's holding in U.S. Airways, Inc. v. Barnett, which held that an employer with a seniority system for job assignments was not required to reassign a disabled employee as a reasonable accommodation if another candidate with greater seniority applied for the same position. Barnett established a two-step test to determine whether such requests constitute reasonable accommodations under the ADA. Under the test, the employee must first show the requested accommodation is reasonable "on its face" (i.e., in the ordinary case). If the employee satisfies this burden, the employer "must then show special circumstances that demonstrate undue hardship in the particular circumstances." Importantly, even if an employee is unable to establish that the request is reasonable on its face, the employee may show "special circumstances" exist to establish the requested accommodation as reasonable under the specific facts of the case.
Applying the first prong of the Barnett test, the Court likened the hospital's "most qualified applicant" policy to the seniority policy at issue in Barnett and held that the employee's request was not reasonable on its face. The Court reasoned, just as a seniority policy might promote job security and incentivize senior employees to feel invested in the employer's long-term success, the hospital's policy "stabilizes employee expectations." The Court further explained that requiring a hospital to ignore qualifications and offer disabled employees competition-free reassignments "would compromise the hospital's interest in providing excellent and affordable care to its patients and would be unfair to the employer's other employees." However, because the district court did not apply the second prong of the Barnett test, the unanimous three-judge panel remanded the question of whether the employee could demonstrate special circumstances warranting reassignment, even though the employee was not the "most qualified applicant available."
Other circuits have reached differing conclusions on whether "most qualified applicant" policies violate the ADA. Whereas the Methodist decision echoes the opinions of the Fourth, Eighth and Eleventh Circuits, the Tenth Circuit, for example, has opined that "most qualified applicant" policies effectively eliminate reassigning a disabled employee as a reasonable accommodation. It is currently unclear when (or if) the Supreme Court will resolve the ongoing circuit split.
For practical guidance, employers with similar disability-neutral criteria for job assignments should narrowly tailor such policies to serve specific, justifiable business interests. Equally important, employers should carefully consider each disabled employee's request for reassignment on a case-by-case basis to determine whether any fact-specific, "special circumstances" would require the employer to deviate from their existing policies to comply with the ADA.
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