Mandatory Reassignment as a Reasonable Accommodation under the Americans with Disabilities Act Turns Nondiscrimination into Discrimination
![handle is hein.journals/brklr84 and id is 1093 raw text is:
Mandatory Reassignment as a
Reasonable Accommodation Under the
Americans With Disabilities Act Turns
Nondiscrimination into
Discrimination1
INTRODUCTION
Imagine an employer is hiring for a position requiring
three years of experience. The employer is choosing between two
applicants within its company: one who is highly qualified and
has over fifteen years of experience, and the other who is less
qualified and has only three years of experience. Although both
meet the necessary qualifications, an employer will likely choose
the more-qualified applicant. The decision to hire the more
qualified candidate, however, can be complicated and may not
even be permissible if the less-qualified applicant manifests a
disability.2 This is because the employer is required to comply
with the Americans With Disabilities Act (ADA), which contains
an ambiguous provision that allows for employee reassignment
as a mandatory reasonable accommodation.3 The ADA is
designed to prevent discrimination and to preserve the integrity
of an employer's hiring system when an employee becomes
disabled.4 However, Congress lists suggestions for reasonable
accommodations an employer may utilize but it is unclear if
reassignment is mandatory.5 Employment agencies and courts
have interpreted the ambiguous provision differently, which has
1 U.S. Equal Emp't Opportunity Comm'n v. St. Joseph's Hosp., 842 F.3d 1333,
1346 (11th Cir. 2016) (internal quotation marks omitted) (quoting Terrell v. Usair, 132
F.3d 621, 627 (11th Cir. 1998)).
2 Americans With Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327
(codified as amended at 42 U.S.C. §§ 12102(1)(A), 12111(9)(B), (2012); Richard Meneghello,
Fisher Phillips, Court: Employees Seeking Accommodation Must Compete for
Reassignment-Split in the Circuits Could Lead to Supreme Court Intervention,
JDSUPRA (Dec. 28, 2016), http://www.jdsupra.com/legalnews/court-employees-seeking-
accommodation-74575/ [https://perma.cc/S746-B7YR].
3 42 U.S.C. § 12111(9)(B).
4 42 U.S.C. §§ 12112(a), (b)(5)(A); see also St. Joseph's Hosp., 842 F.3d at 1345.
5 See infra Section I.C.
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