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Employers May Be Required To Transfer Disabled Workers To Vacant Positions

If you can’t do your job because of a disability, your employer must transfer you to a vacant position you are qualified for, a recent disability discrimination case determines.

In EEOC v. United Airlines Inc., the 7th Circuit reversed previous case law, concluding that absent a “particularized showing of undue hardship” the Americans with Disabilities Act requires employers to reassign disabled workers to vacant positions.

Previously, the 7th circuit had determined that the ADA did not required employers to transfer disabled workers to open positions if a better candidate was available, assuming it was the employer’s policy to select the best-qualified candidates.

The change in interpretation is significant, adding another type of “reasonable accommodation” that may be available to disabled workers.

If you have questions about the Americans with Disabilities Act (ADA) or the Americans with Disabilities Act Amendments Act (ADAAA), it’s a good idea to meet with an experienced Atlanta disability discrimination lawyer.

Generally, the ADA prohibits discrimination against “qualified individuals with a disability” in the terms and conditions of employment. Not all injuries, illnesses or even medically defined disabilities are covered by the ADA. The ADA projects a specific class of individuals-qualified individuals with a disability. A qualified individual with a disability is an individual with any medical, physiological, or psychiatric condition that substantially limits a major life activity. It’s important to remember that the ADA/ADAAA covers disabilities that are defined in legal terms, rather than medical ones. This means that you may be covered and entitled to protection from federal discrimination laws, even if you don’t have a traditionally defined medical disability.

In addition to recognized “disabilities” the ADA also protects you against discrimination based on a perceived disability or stereotype about a condition (such as HIV or AIDS).

If you meet the first criteria – that you are a qualified individual with a disability –then the ADA protects you a few different ways. In addition to prohibiting your employer from discriminating against you, it also requires that your employer make a “reasonable effort” to accommodate your disability. Accommodations include things such as allowing later start times, adjusting your workstation or other reasonably simple changes that allow you to do your job.

The significance of the recent case is that it adds “transferring to a vacant position” to the list of reasonable accommodations an employer may be required to make.

Specifically Judge Richard A. Cudahy determined, “The Supreme Court has found that accommodation through appointment to a vacant position is reasonable” under the ADA, “Absent a showing of undue hardship, an employer must implement such a reassignment policy,” he said.

If your employer refuses to accommodate you, in most cases you can file an ADA discrimination charge.

For more information about disability discrimination or if you believe you have been discriminated against based on a disability – including a failure by your employer to make reasonable accommodations – it is important that you contact a top Georgia employment discrimination lawyer right away.

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