Dive Brief:
- Reassignment remains the accommodation of last resort under the Americans with Disabilities Act (ADA), the 4th U.S. Circuit Court of Appeals confirmed in a lawsuit filed by a former director for Lowe's (Elledge v. Lowe’s Home Centers, LLC., No. 19-1069 (4th Cir., Nov. 18, 2020)).
- The plaintiff was responsible for, among other things, conducting store visits; this required extensive walking. Following knee surgery, the employee needed temporarily reduced hours and walking. Eventually, his doctor deemed those restrictions permanent. Lowe's suggested he use a motorized scooter, but he declined. "Lowe’s, possessing 'ultimate discretion' over the choice among reasonable accommodations, was not — in the face of [his] rejections of such an obvious and helpful offer — required to extend another." Still, when he requested reassignment instead, Lowe's said it would help him look for positions for he was qualified. But he declined to pursue demotions and was not selected for other director-level positions.
- The employee sued, alleging Lowe's engaged in disability discrimination when it declined to grant him a noncompetitive transfer. A district court granted summary judgment for the employer, and the 4th Circuit upheld that ruling, noting that the ADA considers reassignment a last-resort accommodation and does not require employers to disrupt established seniority systems. While U.S. Supreme Court precedent requires some preferential treatment to afford workers with disabilities equal opportunities, it "does not require employers to construct preferential accommodations that maximize workplace opportunities for their disabled employees," the court said. "In the ordinary 'run of cases,' reassignment in contravention of such a policy would not be reasonable."
Dive Insight:
Notably, the federal appeals courts disagree on whether the ADA requires noncompetitive reassignment and the U.S. Supreme Court has yet to decide the issue.
The U.S. Equal Employment Opportunity Commission (EEOC) takes the position that transfers must be noncompetitive, but agrees that it would be unreasonable to reassign an employee "if doing so would violate the rules of a seniority system," either a collectively bargained system or one unilaterally imposed by management. However, if there are exceptions or other circumstances that undermine workers' expectations of consistent treatment, then noncompetitive reassignment may be reasonable despite the existence of a seniority system, according to EEOC.
The commission also agrees with courts that employers should first seek an accommodation that would enable a worker to remain in their present job, according to a guidance. Accommodations can include the removal of marginal duties, schedule changes or policy exemptions, among other things. But when no other modification is possible, employers may want to consider reassignment by weighing EEOC guidance, considering applicable court precedent and consulting with counsel, experts say.
