When Does An Employer Have to Transfer You to a New Position?
What constitutes a reasonable accommodation is one of the most complex aspects of jurisprudence under the Americans with Disabilities Act (ADA). Even within this already complicated issue, the reasonable accommodation of transfer to a new job position has likely generated the most controversy. While the law specifically identifies transfer to a new position as a potentially reasonable accommodation to an employee with a disability, several prominent court decisions have further hedged when this type of accommodation in available.
It is clear from the statute that a position must already be vacant in order to be available as a reasonable accommodation, but is an employer required to give you preferential treatment in biding for that position? Our courts have provided some guidance:
- In US Airways v. Barnett, the Court held that reassignment to a vacant position is not a reasonable accommodation if it requires an employer to violate the rules of a bona fide seniority system.
- The United States courts of appeal are currently split on whether an employee with a disability must receive preferential reassignment as a reasonable accommodation in the absence of a formal and bona fide seniority system. Some circuits follow the rule that employers must give preferential consideration, while others follow the rule that an employee must only be allowed to compete for the position. The Supreme Court had granted certiorari to a case that would have settled the issue, Huber v. Wal-Mart Stores, but the parties settled and the case was dismissed.
The uncertainty of the law in this area can give an experienced disability discrimination lawyer a great deal of room to argue your case. If you have been denied a transfer that would have allowed you to keep your job in spite of your disability, it may be worth your while to speak to an attorney.