The United States Supreme Court has declined to hear a case about the extent to which reassignment is an accommodation required under the Americans with Disabilities Act (ADA). The case involved an employee who alleged he was entitled to a transfer to a vacant position, without needing to compete with more qualified nondisabled applicants.
The United States Court of Appeals for The Fourth Circuit ruled in Timothy A. Jackson, v. Fujifilm Manufacturing USA Inc., and Fuji Photo Film Incorporated, that because Jackson failed to prove that he was disabled, no preference is necessary. Jackson filed this action against Fuji alleging failure to accommodate and for retaliation pursuant to the ADA. The ADA states the scope of reasonable accommodation may include: job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. The Fourth Circuit had not previously addressed whether the ADA requires an employer, as a reasonable accommodation, to give a current disabled employee preference in filling a vacant position when the employee is able to perform the job duties, but is not the most qualified candidate. Other circuits which have examined the issue have been split in their opinions, with some that found preference is necessary and other that found that the ADA is not an affirmative action statute and does not require such action. The district court concluded that the ADA is not an affirmative action statute, the 4th Circuit affirmed the ruling and the Supreme Court declined to review the case.
It is the Equal Employment Opportunity Commission’s interpretation that the reassignment requirement mentioned above cannot be satisfied by merely permitting a disabled employee to compete with others. The 10th and D.C. Circuits have agreed with the EEOC’s interpretation; however the 7th & 8th Circuits have held that no preference needs to be given.
Since the Supreme Court turned down this opportunity to resolve the conflict between the circuits, employers will need to be aware of the precedents in their circuit(s). The 4th Circuit opinion in this case was not published and therefore has no value as a precedent and because it was based on a finding that Jackson was not disabled, may not give a clue as to the leanings of that circuit.
The territorial jurisdiction of the Tenth Circuit includes the six states of Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah, plus those portions of the Yellowstone National Park extending into Montana and Idaho. In this territory, plus the District of Columbia, employers will need to continue giving preference to employees who are considered disabled under the ADA. In the 7th Circuit (Indiana, Illinois and Wisconsin) and the 8th Circuit (Arkansas, Missouri, Iowa, Minnesota, the Dakotas and Nebraska) it is clear that no preference need be given. In other states it is unclear and employers should proceed with caution.