• 27 May 2009

Mandatory Reassignment under the ADA: The Circuit Split and Need for a Socio-Political Understanding of Disability

Nicholas A. Dorsey - J.D. Candidate, Cornell Law School

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Congress designed the Americans with Disabilities Act of 1990 (ADA) to ensure that the disabled have equal access to employment opportunities, government services, and other public accommodations.  While most antidiscrimination statutes simply ban decisions based on class status, such as race or gender, the ADA requires entities to take affirmative steps to accommodate the disabled.  In the employment context, for example, the ADA generally requires employers to make reasonable accommodations for the known disabilities of employees.

At first glance, the ADA’s reasonable accommodations provision seems quite clear: an employer engages in discrimination if it fails to “mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity. . . .”1 Upon closer examination, however, one discovers that the reasonable accommodation mandate is rather elusive. 

The ADA does not explicitly define the term “reasonable accommodation”; instead, it provides a series of examples of acceptable accommodations.  According to the ADA, reasonable accommodations include job restructuring, part-time or modified work schedules, and reassignment to vacant positions.  Today most employers satisfy these requirements by providing auxiliary aids and services or modifying policies, practices, and procedures to accommodate disabled employees.  However, some employers remain reluctant to reassign employees who become disabled to vacant positions, and the courts have not yet uniformly required employers to do so.

A recent example of the so-called “mandatory reassignment” controversy involves retail giant Wal-Mart.  Pam Huber worked for Wal-Mart as a dry grocery order filler and earned $13.00 per hour.  While working for Wal-Mart, Huber sustained a permanent injury to her right arm and hand, which prevented her from performing the essential functions of the order-filler job.  As a result of her disability, Huber asked Wal-Mart to reassign her to a router position as a reasonable accommodation under the ADA.  Rather than immediately reassigning Huber, Wal-Mart told her that she must apply and compete for the router position just like any other applicant.  Wal-Mart stated that its reassignment decision was consistent with its policy of hiring the most qualified applicant for any position. 

Wal-Mart found that Huber was qualified to perform the duties of the new job but ultimately awarded the position to a more qualified candidate.  Wal-Mart then placed Huber at a different facility in a janitorial position that paid $6.20 per hour.  Huber filed suit against Wal-Mart, alleging that the ADA compelled Wal-Mart to reassign her to the router position as a reasonable accommodation for her disability.  The district court held for Ms. Huber, but in Huber v. Wal-Mart Stores, Inc.,2 the Eighth Circuit reversed, holding that the ADA does not require an employer to reassign a qualified disabled employee to another position when the employer can fill the vacant position with a more qualified employee. 

With the Huber decision, the Eighth Circuit joined a circuit split: must an employer reassign a disabled employee to a vacant position when the employee is not the most qualified applicant?  Thus far, the Tenth and D.C. Circuits have required reassignment as a reasonable accommodation, while the Seventh Circuit has not.  The U.S. Supreme Court initially granted certiorari in the Huber case, but ultimately dismissed the writ after the parties settled the dispute.  Thus, the circuit split continues.

The circuit split over mandatory reassignment revolves largely around two arguments.3 The circuits that support mandatory reassignment argue that Congress designed the ADA to compel employers to make reasonable accommodations for disabled employees, not simply to consider providing accommodations.  If reassignment is optional, the argument goes, the ADA’s reassignment provision lacks any bite.  The circuits that have rejected mandatory reassignment contend that the ADA is an antidiscrimination statute, not a mandatory preference statute.  For a court to force employers to reassign disabled employees to vacant positions, even as a last resort, would constitute illegally-mandated affirmative action. 

Unfortunately, no circuit court has explicitly acknowledged that there are different ways to understand the concept of “disability” and that each understanding provides a different answer to the mandatory reassignment question.  My Note attempts to move the legal discussion in this direction.

Disability scholars have recognized four primary models or theories to understand disability.  The “moral model” regards disability as the result of sin.  The “medical model” sees disability as a defect that must be cured.  The “rehabilitation model” is quite similar to the medical model, holding that society needs to rehabilitate disabled persons through training and therapy in order to eliminate their individual deficiencies.  Finally, the “socio-political model” situates the “problem” of disability externally, in stereotypical attitudes and an environment that fails to meet the needs of the disabled, rather than within disabled individuals themselves.  Today, the most prominent models include a hybrid medical-rehabilitative model and the socio-political model.

The medical model of disability proffers the medical profession as the rescuer of the disabled population.  The disabled population is sick, and society should excuse the sick population from normal societal obligations like attending school or working a job.  Like the medical model, the rehabilitation model locates the difficulties faced by a disabled person within the disabled individual—rehabilitation is needed to cure the individual’s defects.  The idea that disabled individuals need training and therapy gained acceptance when disabled veterans began to return from the World Wars and needed help readjusting to life at home.  One can see the modern influence of the rehabilitation model in the Vocational Rehabilitation system, which currently provides services to disabled individuals so that they may obtain and maintain gainful employment.

In contrast, the socio-political model regards disability as an ordinary aspect of life.  Some individuals have physical or mental impairments while others do not; individuals who have such impairments struggle at certain tasks, not because of personal defects, but because society has failed to design physical and social structures consistent with their capabilities. For many individuals with physical, mobility-related impairments, the primary barrier to full societal participation stems from architectural barriers—buildings without elevators, narrow paths that cannot accommodate mobility equipment, etc.; likewise, communicative barriers continue to restrain individuals with sensory impairments.  According to the socio-political model, such impairments would largely disappear in a world adapted to the needs of all its inhabitants.  Today’s “disability problem” is not that some individuals have personal “defects”; rather, the problem is that our present environment was only designed for the average able-bodied person.  Only the socio-political model recognizes these realities.

A socio-political understanding of disability should help inform how courts interpret the ADA’s reasonable accommodations provision.  The ADA was watershed legislation because it adopted (at least implicitly) many of the tenets of the socio-political model of disability.  For example, the ADA’s findings declare that the “disability problem” resides in the external environment, not within disabled individuals.  The ADA findings state that the primary obstacles to the disabled achieving full participation in society include the discrimination imposed by architectural, transportation, and communicative barriers.

Furthermore, the reasonable accommodations provision itself seems to embody a socio-political understanding of disability.  First, the provision demonstrates that Congress understood that people with disabilities cannot fully participate in society until public and private entities modify the physical environment.  The problem of disability is not located in the person who must use a wheelchair for mobility; instead, it is located in societal structures that exclude the disabled through narrow doorways and entrances without ramps.  Second, the ADA reasonable accommodations provision mandates reform; it properly recognizes that combating systematic exclusion requires society to restructure the environment.

If one agrees that we as a society should view disability through a socio-political lens, either because a socio-political model accurately describes the world around us or because the ADA is based on such a model, then one must also agree that mandatory reassignment is appropriate.  From a socio-political perspective, one sees that many workplace environments exhibit the same biases as other physical environments.  The problem is not that the employee in a wheelchair is unwilling to attend a corporate meeting; instead, the problem is that the meeting is held in a building without an elevator.  As a result, the solution is not to change the disabled employee; rather, the solution is to reshape the environment.  In the employment context, reshaping the environment means requiring employers to make reasonable accommodations—including, as a last resort, reassignment—that allow disabled individuals to compete alongside others in the workplace.

Only mandatory reassignment reshapes the employment environment.  Perhaps best illustrated with an analogy, a “wholly merit-based” reassignment policy like the one at Wal-Mart assumes that the disabled population may fairly compete in the “employment race” so long as all contestants are evenly lined up at the starting line.  The mandatory reassignment critics exclaim: “Do not let anyone have a head start!”  Yet such an understanding ignores the environmental obstacles faced by the disabled community.  For many disabled people, the racetrack is already littered with obstacles like physical inaccessibility, communicative barriers, stigma, and discriminatory attitudes, many of which might prove insurmountable.  To ensure a fair race, society must force employers to clear the track, and if employers cannot clear the track, they should reassign the disabled contestants to an equivalent, but clear, track.  Thus, only mandatory reassignment puts disabled employees on truly equal footing with non-disabled employees.

By initially granting certiorari, the Supreme Court has acknowledged the circuit split over mandatory reassignment.  Though the parties in Huber v. Wal-Mart settled, preventing immediate Supreme Court resolution, the Court will likely have another opportunity to determine whether an employer must reassign a disabled, qualified employee to a vacant, equivalent position.  By exacerbating legal and business uncertainties and creating inconsistent legal rights for disabled Americans, the circuit split has assuredly created an incentive for various parties to litigate this issue in the future.  Thus, the remaining question is: how will the Supreme Court—or a previously “silent” circuit court—resolve the issue in the future?

My Note argues that courts should use a socio-political model of disability to interpret the ADA, and a socio-political understanding of disability requires an employer to reassign a disabled employee to a vacant, equivalent position when no other accommodation is reasonable.  Voluntary reassignment policies like the one used by Wal-Mart, even under the mantra of “meritocracy,” disguise the environmental obstacles that preclude full and fair economic participation by the disabled population. The ADA was watershed in its recognition that only affirmative steps to eliminate discrimination will allow individuals with disabilities to experience meaningful societal participation.  Courts should follow the ADA’s lead and embrace a socio-political model of disability by requiring reassignment.dingbat



Copyright © 2009 Cornell Law Review.

Nicholas A. Dorsey is a J.D. Candidate at Cornell University Law School.

This Editorial is based on the following full-length Article:   Nicholas A. Dorsey, Mandatory Reassignment under the ADA: The Circuit Split and Need for a Socio-Political Understanding of Disability, 94 CORNELL L. REV. 443 (2008). Click Here for the Full Version

  1. Americans with Disabilities Act of 1990 § 102(b)(5)(A), 42 U.S.C. § 12112(b)(5)(A) (2000).
  2. 486 F.3d 480, 483 (8th Cir. 2007), reh’g en banc denied, 493 F.3d 1002 (8th Cir. 2007), cert. granted, 128 S. Ct. 742 (2007), cert. dismissed, 128 S. Ct. 1116 (2008).
  3. For more discussion, see the full version of my Note, which analyzes all of the circuits’ justifications for and against mandatory reassignment, including arguments based on the text, legislative history, and policies behind the ADA and its reasonable accommodations provision.

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