Wisconsin Employers Need Not Accommodate Workers by Placing Them in Positions for Which They are Not Qualified
In a recent decision, the Wisconsin Labor and Industry Review Commission (LIRC or Commission) reaffirmed the basic principle that employers are not required to transfer a worker to a position for which he is not qualified, even if it is requested as a reasonable accommodation. While this concept may seem obvious, the complainant in James A. Nesberg v. County of Marinette, ERD Case No. CR 200900292 (LIRC June 14, 2013), suggested his employer failed to accommodate him by not transferring him to an alternate position, despite the fact that he admittedly was not qualified and failed to provide the required application materials. In its June 14, 2013 Fair Employment Decision, the Commission soundly rejected the complainant’s theory.
This case highlights an issue that state and federal courts have been grappling with recently: when is job reassignment a reasonable accommodation for an employee with a disability? Last year, the Seventh Circuit issued an en banc decision reversing a prior ruling and finding that an employer must implement a reassignment policy to accommodate employees with disabilities unless the employer can show an undue hardship. In EEOC v. United Airlines, Inc., 693 F.3d 760 (7th Cir. 2012), the Seventh Circuit decided an employer’s showing that reassignment as an accommodation would undermine a neutral “best-qualified selection policy” does not automatically establish undue hardship. Id. at 764. Instead, employers must show fact-specific considerations that would create an undue hardship. In other words, there are times where an employer may be required to reassign a lesser-qualified employee to an available position based on the employee’s reasonable accommodation request.
In cases where the interactive process has shown that an employee cannot be accommodated in his or her current position, employers should decide whether an accommodation of reassignment would be reasonable. If so, employers also should consider whether there is some fact-specific reason why the reassignment would create an undue burden. The Commission’s decision in this case serves as a reminder that an employer is not required to accommodate an employee with a disability by reassigning the employee to a position for which he is not at all qualified.