Analyzing the ADA

Michael Starr , based in New York, is a partner in the labor and employment department of Hogan & Hartson. Brian Lambert , an associate in Hogan & Hartson's McLean, Va., office, contributed to this article.

From its inception, the Americans With Disabilities Act (ADA) has been different from other federal anti-discrimination statutes. Only the ADA explicitly requires an employer to accommodate reasonably individuals in the protected group, and only the ADA limits its employment protection to those individuals who are "qualified." These two features of the ADA come prominently into play for one form of reasonable accommodation, called "reassignment to a vacant position."

This past December, the Supreme Court heard argument in Barnett v. U.S. Airways Inc., 228 F.3d 1105 (9th Cir. 2000) (en banc). The court will decide whether an employer must contravene its established seniority policies to accommodate reasonably a disabled employee by reassigning the employee to a different job. This, though, is just one of the nettlesome problems that arise from reassignment. In broader perspective, the court's decision may provide some important clues as to whether the ADA is best understood as, in essence, a non-discrimination statute, or an "affirmative action" one.

Reassignment of a worker as an accommodation

Under the ADA, prohibited discrimination includes as one of its core elements "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability."

In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities. Increasingly, employees who, due to disability, are no longer able to perform their current jobs, are seeking reassignment to different jobs as a reasonable accommodationto their disability.

At first blush this is anomalous, since the ADA requires employers to accommodate only a "qualified" individual with a disability, and that is defined as one who (with or without reasonable accommodation) can perform the essential functions of the job. If, however, an individual is, due to a disability, no longer qualified for the position he or she currently holds, is there any requirement for reasonable accommodation at all, and, if so, does it require the employer to reassign that individual to a different job, even if doing so adversely affects the...