Disney employee unqualified for reassignment has no ADA claim, 11th Cir. holds

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Dive Brief:

• A Disney Parks and Resort employee in Florida couldn’t show she was qualified for a reassignment to accommodate her impairment, the 11th U.S. Circuit Court of Appeals said, upholding a lower court’s ruling for the employer (Johnson v. Walt Disney Parks and Resorts U.S., Inc., No. 21-12696 (11th Cir. Nov. 14, 2022)).
• The employee worked part time in a Disney store. Shortly after she started, she found the job — particularly the required standing — exacerbated a previous spine injury. She submitted a physician’s form restricting how long she could stand or walk without a break, and Disney placed her on medical leave. Disney attempted to find a suitable reassignment but said it was unable to. The plaintiff inquired about a seasonal opening, but her collective bargaining agreement prohibited her from taking seasonal work. A second position she sought was not vacant. After a year of leave, Disney requested she provide a return-to-work date; when she failed to respond, it fired her.
• The plaintiff sued, alleging Americans with Disabilities Act violations. A district court ruled in Disney’s favor, finding the worker failed to show she was qualified for a job — a prerequisite for the law’s protections. On appeal, the 11th Circuit agreed.

Dive Insight:

The ADA provides nondiscrimination protection to qualified individuals, defined by the statute as someone who — whether with a reasonable accommodation or without — “can perform the essential functions of the employment position that such individual holds or desires.”

The law contemplates reassignment as a reasonable accommodation that may be required in some circumstances, but the path to finding one can get bumpy, according the Job Accommodation Network.

First, reassignment is generally considered the accommodation of “last resort.” Similarly, employees aren’t entitled to their preferred accommodation; any effective one will fulfill an employer’s obligation to accommodate.

But if an individual can’t perform a job’s essential functions with or without reasonable accommodation, reassigning them to a vacant position can be a win-win for both parties, JAN explained on its website.

It’s not yet settled, however, whether reassignment must be non-competitive. The U.S. Equal Employment Opportunity Commission takes the position that merely allowing an employee to compete for an open job is no accommodation at all. But federal appeals courts are split on the issue.

Notably, employers need not disrupt an established seniority system to accommodate an employee, according to EEOC. Likewise, employers don’t have to create a vacancy, such as by bumping someone to create an opening, JAN pointed out.

Transfers that amount to demotions can be a reasonable accommodation, according to JAN. And the employer is not required to pay the employee their original rate unless it routinely does so for other employees who are transferred to lower-level positions.

Also, there’s no duty to train the employee even if the new job requires skills the employee doesn’t have, according to EEOC enforcement guidance. But similar to the pay requirement, the employer must provide the same training it normally provides others hired for or transferred into the job.

Finally, the employer only has to look for a vacancy for a “reasonable” time, the guidance said. Six months could be considered unreasonable, it added.