Reassignment as an ADA Reasonable Accommodation in the Manufacturing Industries of the Southeast DBTAC Region:
Comparing Appellate Court Outcomes

August 2006

I. Introduction

      Federal court decisions involving employment accommodation cases under the American with Disabilities Act of 1990 (ADA) reveal that across the Southeast DBTAC region, federal courts at the appellate level apply a low standard for employees with disabilities to prove a reasonable reassignment accommodation against companies in the manufacturing sector, such as plants, factories, mills, and companies that involves changing or assembling materials. This region consists of: North and South Carolina (Fourth Circuit); Mississippi (Fifth Circuit); Kentucky and Tennessee (Sixth Circuit); and Alabama, Florida, and Georgia (Eleventh Circuit).

      The ADA forbids a company from discriminating against a qualified employee with a disability because of his disability. Such discrimination includes a company not making reasonable accommodations to the known physical or mental disability of the employee. A reasonable accommodation may be a change to the work environment or job tasks that enables a qualified employee with a disability to perform the “essential functions” of the position. For example, reassignment to a vacant position can be a reasonable accommodation.

      If a reassignment, however, imposes an undue hardship on the operation of business, then it is not an accommodation that is reasonable. Requirements to prove that a reassignment accommodation is reasonable include:  1) the requested reassignment position is vacant and available; 2) the reassignment does not conflict with any “non-discriminatory” company policy; and 3) the employee is qualified for the reassignment position.  However, according to the Supreme Court in US Airways, Inc. v. Barnett, showing that a reassignment would violate a seniority system likely warrants a ruling for the employer.
      
II. Reassignment to a Vacant Position
      
      In EEOC v. Stowe-Pharr Mills, Inc., the Fourth Circuit Court of Appeals ruled in favor an employee with osteoarthritis who was medically refrained from walking on concrete. In that case, the company, a textile manufacturer, placed the employee on involuntary leave instead of reassigning her to a location with softer floors where she could have performed the essential functions of her job.
      
      Similarly, in Kiphart v. Saturn Corp., the Sixth Circuit Court of Appeals reversed a lower court’s ruling against an employee who was diagnosed with tendonitis and medically restricted from repetitive use of his hands.  In that case, the company, an automobile manufacturer, placed the employee on involuntary disability leave and made him wait over 1300 days until a position that reasonably accommodated his condition was found.  The court noted that in previous cases “employers have reasonably accommodated employees through far shorter job searches of only thirty-seven and forty days.”
      
      In Foreman v. Babcock & Wilcock Co., however, the Fifth Circuit Court of Appeals ruled in favor of a welding and steel fabrication company that did not reassign an employee who, due to his internal pacemaker, was medically restricted from working near welding equipment.  In that case, if the employee were granted the reassignment positions he requested, the seniority provisions of a company policy would be violated because the employee lacked the requisite seniority to acquire those positions. Also, the employee did not prove that any of the requested positions were available. 

      Additionally, in Duckett v. Dunlop Tire Corp., a salaried supervisor experienced “dangerously elevated” high blood pressure and requested that he not work as a salaried supervisor, but as a salaried employee in the bargaining unit.  The company, however, had a policy against “rolling back” salaried employees into production positions within the bargaining unit. The Eleventh Circuit Court of Appeals held that because the employee’s reassignment request to the bargaining unit conflicted with company policy, it was not a reasonable accommodation. 
      
III. Conclusion
      
      Professor Ruth Colker, who analyzed 720 ADA appellate ADA employment discrimination cases between 1992 and 2000, found that employers prevail in more than ninety-three percent of reported ADA employment discrimination trial court cases and in eighty-four percent of cases that are appealed.  She also observed that the Fourth (North and South Carolina) and Sixth (Kentucky and Tennessee) Circuits tend to produce low pro-plaintiff results.
      
      In contrast to Colker’s study, this brief solely analyzes the issue of reasonable reassignment accommodation.  Throughout the Southeast DBTAC region, federal appellate courts require that the proposed position be vacant and not conflict with non-discriminatory company policies. If an employee in this region successfully makes out a claim that he is a qualified individual disability, he likely will find success on an accommodation claim for reassignment if he demonstrates these two requirements. Thus, the reasonable reassignment accommodation may be a more successful accommodation alternative for qualified employees with disabilities working in a manufacturing industry within the Southeast DBTAC region.




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Prepared by the research staff of the Burton Blatt Institute (BBI):
Centers of Innovation on Disability at Syracuse University http://bbi.syr.edu/