- The 7th U.S. Circuit Court of Appeals ruled that a demotion can be a reasonable accommodation under the Americans with Disabilities Act (ADA) if an employer cannot accommodate a disabled employee in current or prior jobs or an equivalent position (Ford v. Marion County Sheriff's Office, No. 18-3217 (7th Cir. Nov. 15, 2019)).
- Brigid Ford was a deputy in a county sheriff's office when her hand was badly injured in an on-duty car accident. She was on light duty for about a year, at which point she was told she would have to transfer to a permanent position that involved a pay cut or be terminated. Ford opted to accept a civilian job as a jail visitation clerk but claimed that better vacancies had been available.
- The 7th Circuit noted that if Ford could show she was qualified for a vacant position that "more closely matched her previous job, the ADA would have obliged the Sheriff’s Office to offer it to her." But Ford failed to present evidence that this was the case; she identified only two possible vacancies, one of which fell outside the relevant time period and one that involved duties Ford could not perform even with accommodation. Accordingly, the 7th Circuit affirmed a summary judgment ruling in favor of the sheriff's office.
The ADA "specifically lists 'reassignment to a vacant position' as a form of reasonable accommodation," says the U.S. Equal Employment Opportunity Commission (EEOC).
Reassignment is a reasonable accommodation "of last resort," says the EEOC, and is required only when there are no effective accommodations that would enable the employee to perform the essential functions of his or her current position, or all other reasonable accommodations would impose an undue hardship on the employer. It can be an appropriate option if both employer and employee agree that a transfer would be better than the employee staying in the current position with one or more reasonable accommodations.
A position is considered "vacant" if it's available when the employee asks for reasonable accommodation, or if the employer knows that it will become available within a reasonable amount of time (what's considered "reasonable" involves a case-by-case determination). Employers are not required to bump someone else from a job in order to create a vacancy or to create a new position.
As the 7th Circuit noted in this case, while a demotion may be acceptable when there are no vacant equivalent positions that the person can perform with or without a reasonable accommodation, a lateral move to an equivalent position is preferable and should always be considered first.