EDVA Says Employee with Disability Not Entitled to Special Preference in Reassignment
January 26th, 2017 by JBWK
Submitted by Elizabeth S. Olcott, Esq.
Contrary to guidance from the Equal Employment Opportunity Commission (“EEOC”) and rulings of some other courts, the Eastern District of Virginia (“EDVA”) held in November that the Americans with Disabilities Act (“ADA”) does not require an employer to give special preference to an employee with a disability that seeks reassignment as a reasonable accommodation. In United States v. Woody, a deputy sheriff in the City of Richmond Sheriff’s Department was diagnosed with a cardiovascular disease and was no longer able to perform the essential functions of her job. The employee asked to be reassigned to a vacant position within the Department for which she was qualified. The Department received several other applications for this same vacant position and ultimately did not hire the disabled employee for the position because she was not the most qualified candidate. The United States brought an action in the EDVA against the Sheriff on behalf of the employee alleging that the Sheriff discriminated against the deputy sheriff in violation of the ADA.
EEOC Guidance states that a disabled employee is entitled to a vacant position—not that the employee is entitled to compete for the vacant position. In other words, if an employee becomes disabled, the employer must provide a reasonable accommodation if it does not impose an undue hardship on the employer. If the employee is qualified for a vacant position, the employer must consider the reasonable accommodation of reassignment to this vacant position. The EEOC Guidance indicates that this is not an opportunity for the disabled employee to compete for the position and that there is no requirement that the disabled employee is the most qualified candidate for the vacant position. In United States v. Woody, the EDVA took a conflicting position on this issue. In its interpretation of the ADA, the court determined that the statute is not written as an affirmative action statute, but rather requires an employer to consider the qualifications of an employee without regard to his or her disability. The court held that the Sheriff did not violate the ADA when it chose not to reassign the disabled employee to the vacant position.
The United States noted an appeal of this case to the United States Court of Appeals for the Fourth Circuit on January 19, 2017. If the Fourth Circuit decides to hear this case, we will see whether the court agrees with the EDVA or with the EEOC.
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