Imagine a chronic illness or other disability makes it you unable to continue to do the job you held for years. There’s a job opening down the hall for a job you could do, but the HR department says you have to re-apply and, even if qualified, to compete in the same pool without outside applicants. Thats the jist of the Justice Department’s complaint against the University of Michigan. At the same time the complaint was filed on July 22, 2015, the DOJ announced a settlement agreement with the University that would do away with its long standing policy of refusing transfers to open positions as a reasonable accommodation under the Americans with Disabilities Act unless the employee is the best qualified.
Under the proposed consent decree, which still has to be approved by a judge, the University “shall not continue its practice that employees with disabilities must be the best qualified applicant for a vacant position when reassignment is a necessary accommodation and Defendant is unable to demonstrate undue hardship” and the University’s Standard Practice guide will be revised to stay consistent.
University of Michigan Standard Practice Guide (SPG) 201. 84 already provides that on paper: “In some cases, transfer of an employee with a disability into a vacant position for which he/she is qualified will constitute a reasonable accommodation. Reassignment may be made to a vacant position which is the same or lower pay grade as the position currently held by the employee. Whenever reassignment to a vacant position is the only way in which an employee with a disability can be reasonably accommodated, the employee with a disability will be given priority for placement into that vacant position. ” (emphasis added). I guess the question is: what does “priority” mean? Apparently, according to the DOJ Complaint, the University thought “priority” still meant that the employee with a disability still had to be the best qualified applicant in order to be eligible for transfer as a reasonable accommodation.
Numerous courts have already recognized job transfer could constitute a reasonable accommodation under the ADA in some circumstances. The ADA specifically lists “reassignment to a vacant position” as a form of reasonable accommodation and the relevant EEOC guidance has long made clear that “[t]his type of reasonable accommodation must be provided to an employee who, because of a disability, can no longer perform the essential functions of his/her current position, with or without reasonable accommodation, unless the employer can show that it would be an undue hardship.” The Supreme Court weighed in over a decade ago to conclude that requiring override of a bona fide seniority system will often amount to an undue hardship. Short of a seniority disruption however, giving a qualified applicant priority transfer to accommodate a disability normally will not cause undue hardship.
According to the EEOC guidance, an employee must be only “qualified” for the reassignment position. “An employee is “qualified” for a position if s/he: (1) satisfies the requisite skill, experience, education, and other job-related requirements of the position, and (2) can perform the essential functions of the new position, with or without reasonable accommodation. The employee does not need to be the best qualified individual for the position in order to obtain it as a reassignment.” (emphasis added).
The proposed consent decree with the University of Michigan will help many future University workers with disabilities as they confront limitations and a need to transfer as a reasonable accommodation. It would also provide a monetary settlement for two named employees who were alleged victims of the old policy. However, it does not provide any specific relief for other past victims of the University transfer procedures who may have been forced to retire or go on long term leave even while though they were qualified for an open position. Those cases will have to be sorted out one by one at the EEOC, the Michigan Department of Civil Rights, or in the Courts.