The ADA requires employers to make "reasonable accommodations" to its disabled employees including "reassignment to vacant positions." More than twenty years ago, however, the Supreme Court held that if another employee "is entitled to hold" a vacant position under a "bona fide and established seniority system," mandatory reassignment of a disabled employee to that position is not, on its face, a required reasonable accommodation. US Airways, Inc. v. Barnett, 535 U.S. 391, 403 (2002).
In doing so, it established a two-step process to determine when "reassignment to a vacant position" is a reasonable accommodation. First, it is the disabled employee's burden to show that reassignment "seems reasonable on its face." If the employee satisfies that initial burden, the burden then shifts to the employer to show "special ... circumstances that demonstrate undue hardship in the particular circumstances." But even when the employee fails to satisfy the initial burden to show reassignment is facially reasonable, the employee's claim may survive if she shows "special circumstances warrant a finding that" the requested reassignment is "reasonable on the particular facts." Noting several important benefits of a seniority system to an employer's business in general and its relationship with its other employees, the Supreme Court held that the disabled employee could not satisfy her initial burden, and remanded the matter back to the lower court to determine whether the employee could establish special circumstances requiring reassignment despite the seniority system.
But what happens when the disabled employee is denied reassignment to a vacant position based not on seniority but on the superior qualifications of the other applying employees? Following in the footsteps of most sister courts, the Fifth Circuit Court of Appeals recently held that the application of a "most-qualified-applicant hiring policy" when a disabled employee seeks reassignment as an accommodation does not facially violate the ADA. Equal Opportunity Commission v. Methodist Hospitals of Dallas, 62 F.4th 938, 944-46 (5th Cir. 2023). Methodist Hospitals involved an employee whose back injury made her incapable of performing her role as a patient care technician. At the time, the employer did not have a "formalized process for assisting disabled employees" and if "an employees' disability required permanent reassignment," the employee had to compete for any vacant positions pursuant to the employer's "policy to hire 'the most qualified applicant available.'" While on leave to recuperate, the disabled employee applied for the vacant (and less physically taxing) scheduling coordinator position. It was undisputed that the disabled employee satisfied the minimum qualifications for that position, but another non-disabled employee was selected pursuant to the employer's "most qualified" policy.
Applying the Barnett test, the Fifth Circuit found that mandatory reassignment which would violate the employer's established "most qualified" policy was not a reasonable accommodation on its face because that "level of preferential treatment" 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." In further support, the court held that the proposed preferential reassignment for disabled employees "improperly 'recasts the ADA—a shield meant to guard disabled employees from unjust discrimination—into a sword that may be used to upend entirely reasonable, disability-neutral hiring policies and the equally reasonable expectations of other workers." Noting, however, that the district court below had not addressed Barnett's second step, it remanded the matter back to the district court to decide whether the plaintiff could show special circumstances peculiar to this case that make the requested preferential reassignment a required reasonable accommodation under the ADA.
In short, employers in the Fifth Circuit can take at least some comfort that they do not per se violate the ADA by hiring the most qualified person even if a less qualified disabled employee has applied for the position. However, liability is still a possibility in that scenario if a plaintiff can show the requisite special circumstances. Such "special circumstances" could include anything that might "alter the expectations" of both its disabled and non-disabled employees, such as (1) an employer's frequent changes to the "most qualified" policy or (2) when the policy contains so many exceptions that "one further exception is unlikely to matter." Barnett, 535 U.S. at 405.
To best avoid liability under the ADA for failure to reasonably reassign a disabled employee, employers should make certain that they have written hiring policies in place and that those policies are uniformly enforced.
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