November 14th, 2019
Fiona Ong at Shawe Rosenthal
Maryland Employers Must Consider Noncompetitive Reassignment as Reasonable Accommodation
Courts across the U.S. are split on whether an employer must grant a reassignment on a noncompetitive basis or must simply allow a disabled employee to compete for such reassignment as a reasonable accommodation. The Equal Employment Opportunity Commission and the Maryland Court of Appeals – and now the Maryland federal district court – have adopted the position that employees must be given the transfer, even if they are not the most qualified for the job, as long as they meet the basic qualifications.
In EEOC v. Manufacturers and Traders Trust Co dba M&T Bank, the EEOC argued that the bank failed to accommodate a former branch manager when she was required to compete for open positions upon returning to work after an extended absence following the birth of her child. The bank argued that reassignment was required only if the branch manager was the most qualified for the position. The court, however, found that the ADA requires only that the employee be qualified to be entitled to noncompetitive reassignment.
While employers in some other jurisdictions may continue to require disabled employees who are unable to perform the essential functions of their job to compete for an open position for which they are qualified, Maryland employers do not have that latitude. Instead, if there is an open position for which the disabled employee is qualified, they must be placed in the position, even if more qualified candidates exist.