Hastings Constitutional Law Quarterly


Disabled employees were given equal protection rights when Congress acted under Section 5 of the Fourteenth Amendment to enact the Americans with Disabilities Act ("ADA"). This note begins by analyzing the ADA's reassignment provision, which is triggered when a current employee becomes disabled and can no longer perform the essential tasks of his or her current position. The ADA considers various forms of accommodations the employer may provide; yet circuit courts are split when faced with application of the ADA's reassignment provision because it is often used as a last resort before termination. More specifically, when an employer has a vacant, equivalent position, the circuits are split as to whether the reassignment to the position must be mandatory, or whether the employer must simply consider the employee amongst all other applicants. This note argues reassignment must be mandatory so long as the disabled employee is minimally qualified. In particular, this note proposes mandatory reassignment is a form of preferential treatment necessary to achieve the ADA's equal opportunity goals. Although preferential treatment is necessary, the ADA does not transform into an affirmative action statute. Despite the possibility of social imbalances, the social costs on the nondisabled workforce do not negate the fundamental driving forces behind the ADA's enactment.