Dive Brief:

• 7-Eleven did not engage in disability discrimination when it declined to reassign an employee as an accommodation; the plaintiff failed to show that there were any vacant positions for which she was qualified, the 9th U.S. Circuit Court of Appeals has ruled (Chisholm v. 7-Eleven, Inc., No. 19-55709 (9th Cir. May 12, 2020)).
• Helen Chisholm took medical leave and was no longer able to perform the essential functions of her job, according to court documents. She sought reassignment to a position that would have constituted a promotion, but 7-Eleven refused. Chisholm's employment was terminated and she sued.
• A district court granted 7-Eleven summary judgment and the 9th Circuit affirmed. 7-Eleven was entitled to summary judgment because "an employer is relieved of the duty to reassign a disabled employee ... if there is no vacant position for which the employee is qualified," the court said, citing an earlier California ruling; "Chisolm failed to raise a genuine dispute that any non-promotional positions for which she was qualified were available at the time her employment was terminated, or that any such positions were reasonably likely to become available after another finite extension of her medical leave."

Dive Insight:

While Chisolm address state law, the Americans with Disabilities Act has similar requirements for employers nationwide.

It requires that employers make reasonable accommodations for applicants and employees with disabilities unless doing so would create an undue hardship. Employers are expected to engage in an interactive, good-faith process to find a workable accommodation. When courts examine failure-to-accommodate claims, they look at who caused the breakdown in the process, Michelle Seldin Silverman, a partner at Morgan Lewis, previously told HR Dive, and they consider which person made the final offer.

Failure to engage in the interactive process isn't a stand-alone violation under federal law, though it is unlawful in California. However, it can be used as evidence of discrimination, while good-faith engagement in the interactive process can serve as a defense to a discrimination claim.

There are many changes an employer can make that qualify as a reasonable accommodation, according to the U.S. Equal Employment Opportunity Commission (EEOC), but accommodations will differ from worker to worker because of the highly individualized nature of the inquiry. For example, an employer may need to make a facility accessible, provide an exemption to a policy, restructure a job, modify a schedule, provide an interpreter, grant leave and, of course, offer reassignment.

Reassignment is one of the more complicated accommodations, as it's not completely clear whether the law requires noncompetitive transfers. While EEOC takes the position that it does (arguing that merely allowing an employee to apply for a job for which anyone can apply amounts to no accommodation at all), the federal appeals courts are split on the issue and the U.S. Supreme Court has yet to take it up.

Additionally, questions remain about which party is responsible for identifying potential positions and regarding how far and long employers must look for (or allow an employee to look for) such openings. "Generally, employers are in the best position to know about potential vacancies, but the interactive process is collaborative and so both parties can take part in the job search," Tracie DeFreitas wrote for the Job Accommodation Network. "The duration of the job search may depend on the size of the employer, but should begin without delay and should be completed in a reasonable period of time."