When a Disability Accommodation Might Violate the Law

Claims against the Department of Transportation (DOT) for accommodating an employee’s disability by reassigning him to a position with less opportunity for promotion might have been a violation of the Rehabilitation Act. The employee brought a failure to accommodate claim and a retaliation claim.

Request for disability accommodation

A hearing-impaired employee of the Federal Motor Carrier Safety Administration, a part of the DOT, had been granted several accommodations including sign-language interpreters and a video-phone system. Nevertheless, his position began to require that he participate in large conference calls with more than 25 people. This presented a challenge for him because the interpreters had difficulty whenever several people spoke simultaneously or they did not identify themselves. As a result, the employee requested a reassignment.

DOT’s attempt to accommodate through reassignment

Upon the employee’s request, the DOT began searching for an alternative position. Human Resources identified six jobs for which the employee was qualified. However, the placement coordinators claimed to have found nothing. According to the employer, the difficulty in finding appropriate positions was common for reasonable accommodation searches.

Employee was ultimately reassigned to job for which he was not qualified

Despite the agencies claimed inability to find appropriate vacancies with which to accommodate him, the employee had found several positions on the USAJOBS website for which he believed he was qualified. The employee notified his employer of these positions, but there is no evidence that HR or the placement coordinators took any action on those vacancies.

Instead, the DOT offered to place him in an acquisitions job. However, the position was not within the job series for which he had been deemed qualified. He was given an ultimatum – either take the acquisitions position or stay where he

was. The employee accepted the position, but “under protest” because the position would decrease the opportunity for promotions. Essentially, the employee saw the new position as more of a demotion.

The new position did not constitute an appropriate accommodation

The court considering these claims determined that in order for a reassignment to be an appropriate accommodation it must be “to an existing, vacant job for which the plaintiff is qualified.” That position must also be an “equivalent position, in terms of pay, status, etc.” On the other hand, reassignment cannot be used to force disabled employees into undesirable positions as a form of discrimination or retaliation.

The court found there was a question of fact as to whether the position he was offered actually limited his opportunities for promotion, and whether it was an inferior position, and therefore essentially a demotion. There was also a question as to whether the pay and benefits were the same.

A question of fact regarding other available positions

There are some situations where a demotion may still be considered a reasonable accommodation, such as when there may be no other available positions with the same pay, benefits, and promotion opportunities. However, in this case, the court found there was a question as to whether there were other positions for which the employee was qualified – positions that would have been more reasonable accommodations.

If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced employment law attorneys at Wrady & Michel, LLC. You can contact us either online or by calling us at (205) 265-1880. We are here to serve you!

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