What if you have a qualified disabled employee who needs to
be reassigned to a vacant position, but you also have a minority employee who
is better qualified for the open position? The Americans with Disabilities Act
(ADA) says you must accommodate the disabled employee. Your company has a voluntary affirmative
action plan that says you should give the job to the more-qualified minority
employee. A January 31, 2000, opinion letter of the Equal Employment Opportunity Commission (EEOC)
provides guidance on resolution of this type of conflict. It''s a confusing
situation to be in. Read on for the
answer.
In response to a
request for clarification of the comprehensive policy guidance on reasonable
accommodation issued by the EEOC on March 2, 1999, EEOC Associate Legal Counsel
Mastroianni stated that those of you covered by the ADA must reassign a
qualified disabled employee to a vacant position over a similarly or
better-qualified minority employee who would have been given the position under
the voluntary affirmative action plan. She advised that you are required to
offer the position as a reasonable accommodation to a qualified employee with a
disability regardless of the effect on your voluntary affirmative action program.
Mastroianni went
further by stating that "as long as the employee with the disability is
qualified for the position (i.e.,
meets the qualification requirements and can perform the essential functions,
with or without reasonable accommodation), then [he or she] is entitled to it,
even if the other candidate might be considered better qualified."
The EEOC limited the
scope of the letter by stating that the interpretation applies only in the
context of voluntary affirmative action plans, not affirmative action plans
that have been mandated by court order or the Executive Order Program.
Mastroianni briefly
addressed the issue of confidentiality of information when an employee is being
accommodated in the workplace. She wrote that the release of information about
the accommodated employee to the supervisor should be limited to what he or she
needs to know to comply with the ADA and carry out the accommodation.
Opinion letters do
not constitute the official enforcement guidance of the EEOC. They do, however,
provide insight to you on the position that the EEOC is likely to take on
certain issues.
Copyright 2000 M. Lee
Smith Publishers LLC.
This article is an
excerpt from Kentucky Employment Law
Letter, written by the Kentucky-based law firm of Greenebaum Doll &
McDonald PLLC. Kentucky Employment Law
Letter does not attempt to offer solutions to individual problems but
rather to provide information about current developments in Kentucky employment
law. Questions about individual problems should be addressed to the employment
law attorney of your choice.
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Courtesy of M. Lee
Smith