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Employers Can Offer Open Position to Best Qualified Applicant, Not Necessarily Disabled Employee Seeking Transfer

Fall 2000

The Seventh Circuit Court of Appeals recently held in Equal Employment Opportunity Commission v. Humiston-Keeling, Inc., 2000 WL 1310519 (7th Cir. 2000), that an employer is not required under the Americans With Disabilities Act ("ADA") to reasonably accommodate a disabled person by reassigning him or her to a vacant position if he or she is not the most qualified applicant for that position. The court rejected the EEOC's position that a minimally qualified disabled person should be given special preference over a more qualified non-disabled applicant simply because he or she is disabled.

Nancy Cook Houser worked for Humiston-Keeling as a picker in its warehouse, where she was responsible for carrying pharmaceutical products from a shelf to a conveyor belt. Following a work-related accident, Ms. Houser developed lateral epicondylitis ("tennis elbow") in her right arm which in effect precluded her from performing her job. After the Company's attempts to accommodate Ms. Houser's condition failed, she decided to apply for one of the Company's vacant clerical positions for which she was minimally qualified. The Company, which had a policy of consistently selecting the best qualified applicant rather than the first qualified applicant when filling a vacant position within the company, repeatedly declined Ms. Houser's application in favor of a more qualified non-disabled applicant. The Company eventually terminated Ms. Houser and she filed a disability discrimination charge with the EEOC. The EEOC filed suit in federal court on Ms. Houser's behalf, alleging that the employer failed to reasonably accommodate her disability. The district court dismissed the EEOC's claim on summary judgment.

The Seventh Circuit affirmed the district court's decision. Labeling the EEOC's interpretation of the ADA "affirmative action with a vengeance", the court held that a disabled person only should be reassigned as a reasonable accommodation when reassignment is feasible (i.e., the person is qualified and able to fully perform the essential functions of the open alternative position). The court concluded that the ADA does not require the employer to turn away a superior applicant: [T]he ADA does not require an employer to reassign a disabled employee to a job for which there is a better applicant, provided it's the employer's consistent and honest policy to hire the best applicant for a particular job rather than the first qualified applicant." (emphasis supplied)

In view of this guidance, employers should consider whether the adoption of such a policy is practical and consistent with its operational needs.

Questions regarding this article can be directed to any member of our Labor & Employment Practice Group.

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