In a recent ruling the Seventh Circuit made it a bit more challenging for Employers to comply with the Americans with Disabilities Act. Accommodations policies for disabled individuals must allow the disabled employee to preferential treatment in placing them in vacant positions for which they qualify with a reasonable accommodation.
Employers are not allowed to put the disabled employee in a pool of applicants for the vacant position and select the most qualified applicant for the vacant position. If an employee is disabled-i.e. unable to perform the essential functions of his or her job, but he or she could perform the duties of a vacant position with a reasonable accommodation, the Employer must place the disabled individual in that vacant position.
Even if, a more qualified individual has applied for that vacant position, the Employer is required to fill the vacant position by automatically placing the disabled employee into that position, so long as, it does not pose an undue hardship upon the Employer. However, accommodation requests that violate seniority systems are ordinarily unreasonable, thus an Employer is allowed to use a seniority system in filling the vacant position.
However, the disabled employee is allowed to show by evidence on a case by case basis that the accommodation or placement would have been reasonable in spite of seniority. There are difficult and challenging policy considerations at play, such as the following: a) is allowing seniority as a basis to not provide an accommodation to a disabled employee more appropriate than allowing a more qualified employee to avoid an automatic placement of a disabled employee; and b) will courts still allow an Employer to demonstrate that the placement would have been an undue hardship?
This begs the question: isn’t the loss of a more qualified employee an undue hardship in itself? Is the Employer not encountering an undue hardship by having to forego the increase in productivity from a more qualified employee? However, there is some concern that an unscrupulous Employer may assert better qualified employees existed just to get rid of a disabled employee.
How can you protect yourself and comply with the Americans with Disability Act? How can you provide a disabled employee with a reasonable accommodation without incurring a loss in productivity? It is unclear how the automatic accommodation requirement will be applied and whether or not it appropriately protects the disabled employee. We will see how the automatic accommodation requirement is applied by courts.