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Texas District Court Upholds Hospital’s Policy that Disabled Employees Compete for Vacant Positions

In a decision impacting the interactive process, the Northern District of Texas held in EEOC v. Methodist Hospitals of Dallas, No. 3:2015-cv-03104 (N.D. Tex. Mar. 9, 2017), that employers do not violate the Americans with Disabilities Act (“ADA”) by requiring individuals with disabilities that need reassignment as a reasonable accommodation to compete for vacant positions.

Plaintiff, a former patient care technician, requested an accommodation after an on-the-job injury precluded her from performing the required duties of lifting and transporting patients. Though she met the minimum qualifications for two vacant positions, she was not chosen for the positions and was terminated. The EEOC alleged that the Hospital maintained an unlawful policy by requiring individuals with disabilities to compete for vacant positions where the individual was qualified for the position. The Hospital argued that the EEOC was attempting to mandate additional affirmative action not required by the ADA by asserting that the employer could not choose the most qualified applicant for a vacant position.

Central to the issue in this case, the ADA lists reassignment to a vacant position as a form of reasonable accommodation. 42 U.S.C. § 12111(9). The EEOC guidance on reasonable accommodation also states that an employee does not need to be the best qualified individual for the position in order to be reassigned to a vacant position. However, the circuits have split regarding whether an employer violates the ADA by requiring individuals with disabilities to compete with other candidates for reassignment to a vacant position. Although the Fifth Circuit has not directly addressed this issue, the court reviewed the authority in the Fifth Circuit regarding affirmative action for reassignment and determined that the Fifth Circuit would likely hold, similar to the Eleventh and Eighth Circuits, that the ADA does not require preferential treatment for reassignment and merely requires employers to allow individuals with disabilities to compete equally for vacant positions.  The court declined to follow contrary precedent in the Tenth and D.C. Circuits.

Employers should review their policies regarding reassignment for employees requesting an accommodation due to a disability and, as there is currently a circuit split, review the applicable law in their jurisdiction to ensure their policies are lawful. When an employee seeks reassignment to a vacant position as a reasonable accommodation, employers should work with counsel to determine whether they can require that employee to compete with other applicants for that position.

©2020 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume VII, Number 82

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About this Author

Nathaniel M. Glasser, Epstein Becker, Labor, Employment Attorney, Publishing
Member

NATHANIEL M. GLASSER is a Member of the Firm in the Labor and Employment practice, in the Washington, DC, office of Epstein Becker Green. His practice focuses on the representation of leading companies and firms, including publishing and media companies, financial services institutions, and law firms, in all areas of labor and employment relations.

Mr. Glasser’s experience includes:

  • Defending clients in employment litigation, from single-plaintiff to class action disputes,...

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Maxine Adams, Labor and Employment Law Clerk, Epstein Becker Law Firm
Associate

Maxine Adams is an Associate in the Employment, Labor & Workforce Management practice, in the Washington, DC, office of Epstein Becker Green.

Ms. Adams:

  • Assists in defending clients against labor and employment-related litigation with respect to wage and hour disputes, discrimination claims, and retaliation disputes

  • Assists in counseling clients on employment law issues in all facets of the employment relationship

  • Assists in advising employers on practices and procedures, including employment policies and handbooks

  • Assists in defending employers in lawsuits brought in court alleging violations of all aspects of the ADA, the Rehabilitation Act, and/or equivalent state and local laws

Prior to joining Epstein Becker Green, Ms. Adams interned for the New York State Department of Labor, where, among other things, she researched worker misclassification issues.

As a law student, Ms. Adams participated in the Cornell Labor Law Clinic, which serves underprivileged clients with workplace-related issues. She also served as a teaching assistant in the Labor and Employment Law course at the School of Industrial and Labor Relations at Cornell University.

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