“Federal and state governments, and the plaintiff’s bar, have laid down a dangerous maze that every employer has to traverse to hire and retain employees in hopes of achieving success… In interviewing, hiring, employing, paying and severing an employee, there is a minefield employers need to negotiate. Things like Title VII, ADA, ADEA, FCRA, EPA, FLSA, FMLA and others have to be taken into account during every interview question, every hiring decision, all promotion and demotion considerations, every sick leave determination and every decision to end an employment relationship, even if it’s mutual.” (Snell & Wilmer)
It’s never been harder to juggle the legal responsibilities that come with being an employer. One recent example to prove the point: a court of appeals ruling that found United Airlines discriminated against a disabled employee by selecting a better-qualified candidate for a job vacancy. From Susan Maisa (law firm Foley & Lardner):
“In the United Airlines case, the employer had a policy, like many employers do, of selecting the most qualified candidate for a job vacancy. The court had previously held that an employer that had such a policy was not required by the ADA to make an exception to that policy for an employee who needed a job transfer because that employee could no longer do his/her job due to a disability. The court has now come to the opposite conclusion in the United Airlines case.”
More to the point, writes Peter Petesch (Littler):
“… employers will need to consider far more carefully any reassignment request by an employee with a disability so long as that employee is minimally qualified for the position, and may face a dilemma when confronted with the competing rights and aspirations of other employees.”
Three takeaways for employers and HR managers:
1. “Best qualified” isn’t entirely up to your discretion:
“Absent a seniority system governing job assignments, an employer must assign a disabled employee to a job vacancy if the employee meets the minimum qualifications for the job, unless the employer can make a particularized showing that it would be an undue hardship to do so.” (Foley & Lardner)
2. Unsubstantiated claims of “undue hardship” won’t pass muster:
“Although employers can refuse to reassign a disabled employee if doing so would pose an undue hardship, employers should remain mindful that generalized conclusions will not suffice to support a claim of undue hardship. Instead, to show undue hardship, employers must make specific, individualized, non-speculative assessments of the difficulty or expense of a particular reasonable accommodation.” (Franczek Radelet)
3. The ruling (and others like it) only apply to certain jurisdictions:
“The federal courts are not unanimously in agreement on this issue. Unless the Supreme Court addresses it, employers will need to be guided by the law in the state in which their business operates.” For employers in DC, and the 7th and 10th Circuits, this means that selecting the superior candidate may no longer be the soundest employer decision.” (XpertHR)
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Read the updates:
- Workplace Word – September 2012: How Employees and Employers Put a Man on the Moon – Snell & Wilmer L.L.P.
- Employers Required to Assign Disabled Employees to Vacant Positions Over More Qualified Employees Absent Specific Showing of Undue Hardship – Foley & Lardner LLP
- Seventh Circuit Reverses Itself on Reassignments as a Reasonable Accommodation Under the ADA (or “Humiston-Keeling: An Appreciation”) – Littler
- Seventh Circuit Does an About Face: ADA Now Requires the Assignment of Disabled Employees to a Vacant Position as a Reasonable Accommodation – Franczek Radelet P.C.
- The 7th Circuit Changes its Position on Assigning Employees With Disabilities to Vacant Positions – XpertHR
- “Minimally Qualified” Usually Get Preference If They’re Disabled, Court Says – Constangy, Brooks & Smith, LLP
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