Legal E-Bulletin - October 2007

Revisiting Reassignment

Suppose a current employee develops a disability. Because of the disability, the employee is no longer able to perform the essential functions of his job and informs his employer of this change in status. What happens then?

Under the Americans with Disabilities Act (ADA), the employer must provide reasonable accommodations to the employee unless doing so would impose an undue hardship. That is, the employer must explore any reasonable modification or adjustment that enables the employee to be able to continue doing the job.

What happens if there are no reasonable accommodations available that enable the employee to perform the essential functions of the current job? Then the employee should ask for and the employer must consider the possibility of reassignment to another position.

The ADA specifically lists “reassignment to a vacant position” as being a possible reasonable accommodation.1 If an employee can no longer perform the job, a transfer to another vacant position that the person is qualified for prevents the employee from being terminated because of the  disability. Employers should consider not just presently vacant positions, but also positions that the employer anticipates becoming vacant in a short period of time.2

The right to a reassignment is not absolute. The reassignment must be reasonable and must not impose an undue hardship on the employer. The employer is not required to create a new position3 or give the employee a promotion as part of a reassignment4. The employer may also consider reassigning an employee to a lesser position in terms of pay, status, or other relevant factors, if an equivalent position is not available. The employer is only obligated to provide an accommodation that is reasonable, not the most ideal one that the employee desires.5

Reassignment requires deliberate consideration by the employer and employee and depends on many factors:

  • Are there vacant positions available at an equivalent or lesser position?
  • Is the employee qualified and able to do the essential functions of this new position with or without reasonable accommodation?
  • Would the reassignment interfere with the rights of other employees or important business policies of the company?6

For example, a reassignment to a vacant position that would trump the well-established seniority rights of a competing employee would normally be considered unreasonable. The Supreme Court, in U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002), reasoned that such a reassignment might undermine employee expectations of consistent uniform treatment upon which the seniority system’s benefits depends. However, the reassignment may be reasonable if the employee can show the seniority system isn’t well established and that the employer has made exceptions in the past.

What happens if there is a more qualified applicant?

One issue that courts have disagreed on is whether an employer should reassign an employee to a vacant position for which there are better qualified applicants. That is, should the employee with the disability automatically get the position or should here be competition with the other applicants?

The Equal Employment Opportunity Commission takes the position that the employee automatically gets the position if s/he is qualified for it; otherwise reassignment would be of little value under the ADA.7 The Court of Appeals for the Tenth Circuit (10th Circuit) pointed out that, if the employee only had a right to be considered for a reassignment, an employer could consider and refuse the reassignment request in every instance, making the process meaningless. The 10th Circuit ruled that reassignment to a vacant position is one of the range of reasonable accommodations which must be considered and, if appropriate, offered if the employee is unable to perform his current job.8

Other courts have disagreed and view this mandatory reassignment as a form of affirmative action if it displaces better qualified applicants. They rule that the ADA does not require an employer to turn away a better qualified applicant in favor of reassigning an employee with a disability if the employer has a legitimate nondiscriminatory policy to hire the most qualified applicant.9 Reassignment for an employee with a disability is mandatory only if there are no superior applicants to the position10

At the very least, an employee with a disability has a right to be considered for a reassignment to any vacant position for which s/he is qualified. The employer should consider reassignment if there are no other accommodations that enable the employee to perform the current position. The employee must request to be reassigned, but does not have to identify a specific position in the request. The employer is in a better position to determine which jobs are available and whether the employee is qualified for them. As with all other types of accommodations, the reassignment must be reasonable and does not impose an undue hardship on the employer. This assessment must be determined on a case-by-case basis. Normal workforce rules or procedures may need to be modified in order to achieve the reassignment.


  • 1. 42 U.S.C. § 12111(9)(B).
  • 2. Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1187 (6th Cir.1996).
  • 3. Cravens v. Blue Cross and Blue Shield of Kansas City, 214 F.3d 1011, 1019 (8th Cir. 2000).
  • 4. Malabarba v. Chi. Tribune Co., 149 F.3d 690, 699 (7th Cir.1998).
  • 5. Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 484 (8th Cir. 2007).
  • 6. Smith v. Midland Brake, Inc., 180 F.3d 1154, 1166 (10th Cir.1999).
  • 7. EEOC. Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (2002).
  • 8. Smith at 1167.
  • 9. Huber at 483; EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024, 1027-28 (7th Cir.2000).
  • 10. EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024, 1027-28 (7th Cir.2000).

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