Consider the following scenario: Because of a disability an employee is unable to perform an essential function of his or her current position and there is no reasonable accommodation that will enable the employee to remain in that position. The disability, however, will not prevent the employee from performing the essential functions of an open position for which the employee is qualified. A number of courts presented with this scenario have had to decide the extent to which the Americans With Disabilities Act (ADA) mandates that the employer assign the disabled worker to the open position as a reasonable accommodation without requiring the employee to compete for the position with other qualified candidates.
Recently, in Equal Employment Opportunity Commission v. St. Joseph’s Hospital, Inc., the United States Court of Appeals for the Eleventh Circuit joined the Eighth Circuit in concluding that there is no ADA violation if the employer requires the disabled employee to compete for the open position. Other courts, however, including the Seventh, Tenth, and D.C. Circuits have concluded that, in most instances, a qualified disabled employee should be placed in the open position as a reasonable accommodation. The Seventh Circuit’s decision is the subject of an earlier blog.