Accommodating a Disability Doesn’t Require You Displace Someone Else

By Eric B. Meyer

The Americans with Disabilities Act requires that companies provide a reasonable accommodation to an employee with a disability, if doing so will allow the employee to perform the essential functions of the job.

The ADA contemplates a number of different types of reasonable accommodations.

One such accommodation is a transfer into an open position for which the disabled employee is qualified. But what happens when there is no vacancy. Must an employer bump another non-disabled employee to accommodate the one with the disability?

You don’t need to bump other employees …

As a Ohio federal court (in Arthur v American Showa, Inc.) reminds us in this recent opinion that the answer is “no,” unless special circumstances exist:

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Arthur claims that special circumstances exist here, and that ASI should have given him another employee’s job, and transferred that employee to the machining job Arthur was offered. … But Arthur has not shown that ASI permitted employees whose jobs were eliminated [like Arthur’s] to “bump” other regular employees out of their jobs.

The only evidence in the record shows that ASI’s internal transfers were to open positions, or to positions that were filled with temporary employees. And Arthur has not identified any open positions or positions occupied by temporary employees, in any of the departments that he contends he should have been transferred to, such as operating a forklift or working in the rack room.”

… unless special circumstances exist

What are the special circumstances that may arise?

A pattern and practice of bumping employees could suffice. An established seniority system is another example. But absent special circumstances, disabled employees enjoy the same rights as other employees — no more; no less.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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