Do disabled workers have a ‘right’ to a job transfer?

Bob worked for years in a physically demanding job. But after he became disabled, he could no longer perform the work. Does he have a “right” to be transferred to different job that’s less physically challenging?

That’s a question that’s increasingly vexing both workers and employers.

The federal Americans With Disabilities Act says that companies have to “reasonably accommodate” employees who become disabled. And one of the ways that can happen is for the employee to be transferred to a different job that better suits his or her abilities.

So far so good. But what if the company typically fills such positions through a competitive hiring process … and what if there are other, more highly qualified workers who also want the job? Who wins?

This is a tough call for businesses, because both the disabled worker and the other, more qualified workers may feel they have a “right” to the job – and whatever the company does, someone is likely to be disgruntled and might consider bringing a lawsuit.

It doesn’t help that the Americans With Disabilities Act isn’t clear about what should happen in this situation, and the courts that have looked at the problem haven’t come up with a good answer.

For instance, back in 2000 the federal appeals court in Chicago decided that a disabled worker didn’t have a right to “bump” a more highly qualified job applicant. In that case, a warehouse worker wanted to be reassigned to a clerical job after he suffered an elbow injury. But the employer gave the job to a more qualified co-worker. The court said that while the company had a duty to accommodate the injured employee, allowing him to bump someone more qualified would be “affirmative action with a vengeance.”

But just recently, that court completely changed its mind and said bumping a more qualified employee was okay.

In the new case, it decided that United Airlines workers who lost their jobs due to a disability were entitled be reassigned to vacant positions, even if those positions were typically filled by a competitive process.

United Airlines had attempted to help the disabled workers by giving them a “leg up” in the competitive process. For instance, it had guaranteed them an interview for vacant positions, and said that if two applicants were equally qualified, the job had to go to the person who was disabled.

But the court said this wasn’t good enough, and United had to hire the disabled workers even if they weren’t the most qualified people for the open job.

Other courts around the country have come up with conflicting answers to this question.  It will probably continue to be an issue unless Congress or the Supreme Court clears it up.

The Supreme Court did issue a decision a few years ago on a similar question, which is whether a company has to reassign a disabled worker to a vacant position if doing so would violate a seniority system.

That case involved a US Airways baggage handler who suffered an injury and was temporarily moved to a less physical job in the mailroom. A more senior employee wanted the mailroom job and complained that he should be entitled to it instead.

In that case, the Supreme Court said that in general, a seniority system trumped the federal disability law, and therefore a more senior worker could get the job instead of a less senior disabled worker.

But even that case didn’t create a clear rule. For instance, the court said the result in other cases might depend on whether the seniority system was bargained for as part of a union agreement, or whether it was simply imposed by the employer. And it might also depend on whether the seniority system was “ironclad” or whether the company made frequent exceptions to it. If the company made frequent exceptions, the court said, then maybe making one more exception to accommodate a disabled worker would be “reasonable.”

The bottom line is that, for now, there’s no bottom line. It’s a difficult issue, and what’s required by the law depends on the specific facts of each case.