For a number of years, the Equal Employment Opportunity Commission (“EEOC”) has taken the position that, pursuant to the Americans with Disabilities Act (“ADA”), an employer’s obligation to provide a reasonable accommodation requires the employer to reassign disabled employees to an open position without requiring them to compete for the job. This position has been hotly contested and courts across the country have reached differing conclusions. Until recently, no court in Maryland had opined on this issue. The U.S. District Court for the District of Maryland agreed with the EEOC and held last week that the ADA does in fact require employers to provide noncompetitive reassignment as a reasonable accommodation. EEOC v. Manufacturers and Traders Trust Company d/b/a M&T Bank, No. CV ELH-16-3180, 2019 WL 4305365 (D. Md. Sept. 10, 2019).

First, the facts. As alleged in the lawsuit, Candace McCollin was employed as a branch manager at an M&T Bank branch in Baltimore. While employed in November 2012, Ms. McCollin became pregnant and needed surgery to be able to carry her baby to term due to prior complications and miscarriages. Ms. McCollin underwent surgery on December 10, 2012, and notified M&T that she would not be able to return until after the birth of her baby in July of 2013. Ms. McCollin was cleared to return to work on August 5, 2013. By that point, the branch where she worked had replaced her position. Pursuant to its Redeployment Policy of supporting individuals returning from leave, M&T helped Ms. McCollin apply to the ten or so existing vacancies at or below her grade level, but she received no offers. Then, pursuant to its policy of ending the employment relationship if an employee returning from leave does not secure a position in the first 30 days after being cleared to return to work, Ms. McCollin’s employment was terminated on September 9, 2013. After issuing a Letter of Determination that there was reasonable cause to believe that the ADA was violated, the EEOC brought the case against M&T Bank on behalf of Ms. McCollin.

Two questions were presented to the Court on cross motions for summary judgment: 1) whether M&T failed to accommodate Ms. McCollin by not reassigning her to an open position without competition (yes); and 2) whether Ms. McCollin was unlawfully discharged (no). The question concerning the failure to accommodate was a novel one for a Maryland court. Judge Hollander rejected the argument that M&T had met its burden under the ADA by providing Ms. McCollin with eight months of leave and allowing her to apply for open positions upon her return. Rather, the Court held that M&T’s obligation to provide reasonable accommodations extended to noncompetitive reassignment. The issue turned on whether M&T had to reassign Ms. McCollin even if she was not the best qualified candidate for the positions she applied for. Relying on a textual reading of the ADA, the statute’s purpose and legislative history, and Supreme Court precedent, the Court held that reassignment without competition was necessary to allow qualified employees with disabilities to re-enter the workforce, because without such reassignment the employee’s employment would be terminated. The Court held that such preferential treatment is required to level the playing field between qualified individuals with disabilities and all other applicants and employees. Thus, the Court held that M&T failed to accommodate Ms. McCollin by requiring that she apply for vacancies rather than automatically reassigning her to a position for which she was qualified, even if she was less qualified than other applicants.

This holding directly contradicts decisions from the Eastern District of Virginia and the Western District of North Carolina, creating a split within the Fourth Circuit. In United States v. Woody, 220 F. Supp. 3d 682, 689-90 (E.D. Va. 2016), and Elledge v. Lowe's Home Centers, LLC, 2018 WL 6705537, at *11 (W.D.N.C. Dec. 20, 2018), reassignment was not necessary if it required the employer to choose the qualified individual with a disability over a superior applicant. These opinions, both currently on appeal to the Fourth Circuit, accepted the employers’ arguments that preferential treatment of qualified individuals with disabilities is not required if they are not the best applicant for the job. This is essentially the argument that Judge Hollander rejected in the M&T case. Thus, a split of authority now exists within the circuit as to whether noncompetitive reassignment is a required accommodation under the ADA, and if so in what situations.

Despite the uncertainty in the Fourth Circuit, Judge Hollander’s opinion makes clear that Maryland employers, at least for now, must consider the risks of failing to provide preferential reassignment, even in the face of better qualified candidates. Judge Hollander also specifically noted in the M&T case that the “best qualified” hiring practice had not been committed to writing and thus carried less weight. This opinion should also serve as a reminder to employers to ensure that any nondiscriminatory hiring practices such as “best qualified candidate” policies or seniority systems should be well-documented and consistently applied.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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