In a decision surprising and disheartening to most employers, the U.S. Court of Appeals for the Tenth Circuit issued an en banc opinion in the case of Smith v. Midland Brake, Inc., 1999 U.S. App. LEXIS 13185 (10th Cir. 1999), in which it concluded that, under the Americans with Disabilities Act (ADA), an employee is entitled to reasonable accommodation in the form of reassignment to a vacant position, even though a better qualified candidate is available for that same position. In its 9-3 decision, the Tenth Circuit concluded that the legislative history of the ADA mandated such a result and relied, in part, upon a recent pronouncement by the Equal Employment Opportunity Commission (EEOC). EEOC Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (1999) ("EEOC Guidance")(1) The EEOC Guidance asks the rhetorical question: "Does reassignment mean that the employee is permitted to compete for a vacant position?" EEOC Guidance at 44. The question was answered as follows: "No. Reassignment means that the employee gets the vacant position if s/he is qualified for it. Otherwise, reassignment would of little value and would not be implemented as Congress intended." Id. While the Midland Brake decision already is being hailed as a significant victory for employees with disabilities nationwide, the reasoning underlying the decision raises serious concerns about the status of employees who have disabilities vis-a-vis those who do not.
The Midland Brake Analysis
As part of its analysis, the Tenth Circuit reaffirmed what appears at this point to be an axiom of ADA interpretation, namely, that when an employer is confronted with two applicants for the same position, the employer is entitled to select the better qualified candidate, regardless of the possible disability of the less qualified candidate. Midland Brake, 1999 U.S. App. LEXIS 13185 at *30. To do otherwise, the court reasoned, would require the employer to modify the essential functions of the position, which is not required by the ADA. Id. at *31. The court distinguished, however, an employer's discretion in making an initial hiring decision from its "duty to reassign a disabled person to an existing vacant job...." Id. This distinction may be a distinction without a difference, as the following hypothetical serves to demonstrate.
Widget Company employs a sales manager (Harry) who happens to have a qualifying disability under the ADA. For all intents and purposes, Harry is a mediocre employee; but for lack of anyone else to fill the position, Widget continues to employ him. Time passes and Gizmo Corporation, a competitor of Widget, conducts a reorganization. During the reorganization, the position of sales manager is eliminated and the sales manager (Sally), who has performed very well and is highly thought of in the industry, is dismissed. Sally contacts the president of Widget (Carmen) and expresses an interest in serving as the sales manager for the company. Carmen considers herself fortunate that such a highly qualified individual wants to work for the company and dismisses Harry in order to hire Sally, the new, better qualified sales manager. In doing so, Carmen cites Sally's superior qualifications.
If Harry were to file suit under the ADA, alleging discriminatory discharge on the basis of disability, Widget would be entitled to defend against the suit by asserting a legitimate, nondiscriminatory reason for the dismissal, namely, the superior qualifications of Sally. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). If Harry were unable to present sufficient evidence to create a genuine issue of material fact as to whether the legitimate, nondiscriminatory reason proffered by Widget was pretextual, Widget would be entitled to summary judgment in its favor. Hicks, 509 U.S. at 507-508. Nothing in the Midland Brake decision warrants a different conclusion. The problem arises, however, when the foregoing hypothetical runs headlong into the Tenth Circuit's analysis regarding reassignment under the ADA. Modifying the hypothetical illustrates the problem.
Harry is no longer disabled. During the course of his employment, however, he suffers an accident that renders him disabled and incapable of performing the essential functions of the position of sales manager, with or without reasonable accommodation. The position of assistant comptroller in Widget's finance department is currently vacant, though. Ten years earlier, before coming to Widget, Harry served as an assistant comptroller in another widget company for a period of three years. At the same time Harry becomes disabled and unable to perform his current position, the assistant comptroller at Gizmo (Bill) is dismissed because of a downsizing. Bill contacts Carmen at Widget and expresses an interest in the vacant assistant comptroller position. Bill has been working as the assistant comptroller for Gizmo for the past 15 years.
In the modified hypothetical, Carmen would prefer to hire Bill, who has been...
