The Accommodation of Last Resort: The Americans with Disabilities Act and Reassignments

Abstract

In 1990, Congress enacted the Americans with Disabilities Act (“ADA”) to eliminate widespread discrimination against disabled persons. The Act requires private employers to provide reasonable accommodations to disabled employees to allow them to continue performing essential job functions. One accommodation in particular has divided the U.S. Circuit Courts of Appeals: reassigning disabled employees to vacant positions. Due to a current circuit split, it is unclear if employers must reassign disabled employees despite maintaining policies of choosing the best-qualified employees for reassignment. This Note argues that both the text of the ADA and the ADA’s legislative history support automatic reassignments when no other reasonable accommodations allow a disabled employee to perform his or her essential job functions. Although reassignments pose several unique concerns, they are adequately addressed through existing statutory safeguards and U.S. Equal Employment Opportunity Commission regulations. Noncompetitive reassignments should be given teeth either through a congressional amendment or through future court cases.