It is a truth universally acknowledged that an employee unable to perform the essential functions of his/her job must be in want of a transfer. And it is also quite clear under the Americans with Disabilities Act that the employer must consider a transfer or reassignment to a vacant position as a reasonable accommodation. What is less clear is whether the employee automatically gets the position (i.e. an arranged marriage) or whether the employer can require the employee to compete for the position (see, e.g. “The Bachelor”).

As with many matters of the heart workplace, the Equal Employment Opportunity Commission and courts take different positions. The EEOC adamantly insists that the employee gets the vacant position as long as s/he is qualified for the position. In Question 29 of its Enforcement Guidance on Reasonable Accommodation and Undue Hardship, the EEOC declaims:

Does reassignment mean that the employee is permitted to compete for a vacant position?

No. Reassignment means that the employee gets the vacant position if s/he is qualified for it. Otherwise, reassignment would be of little value and would not be implemented as Congress intended.

In line with this position, the EEOC issued a press release on January 21, 2020 (which it oddly retracted then republished on January 22), announcing that M&T Bank has agreed to pay $100,000 and provide other relief to a manager whose position was filled while she was on leave for disabilities associated with her pregnancy. When she was able to return to work, M&T required her to apply for vacant positions for which she was qualified instead of simply reassigning her to one of them as a reasonable accommodation.  According to EEOC Regional Attorney Debra M. Lawrence, “This settlement ensures that other qualified employees may get transfers to vacant positions as a reasonable accommodation as required by the ADA.”

Some coldhearted courts agree – like the Maryland Federal District Court judge in the M&T case, who found that the manager “was entitled to non-competitive reassignment to a vacant position for which she was qualified as a reasonable accommodation” (per the EEOC press release). Federal appellate courts in the 5th, 7th, 9th, and D.C. Circuits would also insist upon the shotgun wedding. And in my home state of Maryland, our highest state appellate court – the Court of Appeals – would bestow the vacant position upon the minimally qualified employee under our state disability discrimination law. Apparently these courts would agree with EEOC District Director Jamie R. Williamson, who was quoted in the EEOC’s press release as saying, “Everyone wins when employers provide a reasonable accommodation, such as a transfer to a vacant position, that allows a qualified worker to remain employed – the employee can continue earning a living and the employer retains the services of a trained and competent worker.”

But does the employer really win if they are forced to reject a more qualified applicant for the minimally qualified employee? Perhaps not, according to the romantics, who would allow the employer to follow its heart business judgment and select the best-qualified applicant for the position, which may not be the employee in question. These include the 6th, 8th, and 11th Circuits.

Of particular interest is the 10th Circuit, which offered a more nuanced approach in the 2018 case of Lincoln v. BNSF Railway Co. – that the employee should be given the transfer in most situations, but an employer may arguably rely on its “policy in favor of hiring the most qualified applicant for a position” where “the employee’s qualifications for the position fell significantly below the qualifications of other applicants such that reassignment is not reasonable or would place an undue hardship on the employer.” (Emphasis most decidedly added). Interesting – a matchmaker with a heart some realistic business sense…

Jane Austen would approve.