reassignment meaning in court

• Volume 66 , Issue 1
• January 2014

Reassignment

Toby j. heytens.

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This Article is about something federal courts of appeals have done for more than fifty years and more than 600 times. That something is reassignment, a practice where a reviewing court returns a case to a lower court for further proceedings while also directing that those proceedings be conducted by a different trial court judge. Drawing on an examination of the local rules and informal reassignment practices of every federal circuit and district in the United States, as well as an original dataset of 668 decisions in which reassignment was ordered, this Article represents the first scholarly examination of when reassignment happens, who orders it, and how it is ordered. More broadly, this Article uses reassignment as a means to explore the various ways that appellate courts might seek to control trial court judges and influence trial court outcomes. It also discusses what reassignment can teach us about notions of judicial impartiality and neutrality. Finally, this Article discusses reassignment’s implications for familiar debates about whether legal tests are better expressed through rules or standards and the extent to which it is desirable for judges to give reasons for their decisions.

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Mandatory Reassignment Under the Americans With Disabilities Act: The Fourth Circuit Weighs In

12 Wake Forest L. Rev. Online 1

Introduction

The Americans with Disabilities Act (“ADA” or “the Act”) [1] celebrated its thirtieth anniversary in 2020. [2]   The Act, which was signed into law by President George H.W. Bush, was enacted to eliminate discrimination against individuals with disabilities, especially in critical areas of life like employment. [3]   With the ADA’s passage came the promise of “full and equal access to civic, economic and social life for individuals with disabilities.” [4]   Employment discrimination against persons with disabilities persisted, however, and courts facilitated this discrimination through narrow readings of the statute. [5]   Though the Act was intended to provide broad protections to persons with disabilities, [6] it was limited by courts, and early litigation resulted in pro-defendant opinions. [7]   As a result, Congress passed the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”), which broadened the definition of disability. [8]   Despite its maturity, as well as congressional efforts to create broader protections for persons with disabilities, [9] the ADA continues to create disagreement among courts regarding how far the protections of the Act stretch. [10]   Today, most of this disagreement centers on the ADA’s reasonable accommodation clause—a key provision of the Act. [11]

The Fourth Circuit is no exception as it too has contributed to this disagreement.  In Elledge v. Lowe’s Home Centers, LLC , [12] the court was asked to decide the scope of the reasonable accommodation clause.  The court addressed whether the ADA requires an employer to automatically reassign a disabled employee to a vacant position when that reassignment would conflict with the employer’s nondiscriminatory best-qualified hiring policy. [13]   Essentially, the court had to decide if the ADA requires an employer to fill a job vacancy with a less-qualified employee who has a disability even though the employer has a policy of hiring the best-qualified candidate for the position. [14]  Ultimately, the Fourth Circuit decided that the ADA does not require mandatory reassignment when an employer utilizes a best-qualified hiring policy. [15]

Mandatory reassignment requires courts to delve deep into the ADA’s statutory text and legislative history while also considering complex policy implications, [16] demonstrating why it is one of the most litigated accommodations within the ADA. [17]   Following the Elledge decision, there is now a split between five federal circuit courts, with the Fourth, Eighth, and Eleventh Circuits finding that the ADA does not require mandatory reassignment when an employer utilizes a most-qualified hiring policy to fill vacant positions, and the Seventh and Tenth Circuits finding that it does. [18]   Though the Fourth Circuit aligned with two other circuit courts, its holding in Elledge went too far, essentially precluding employees with disabilities from ever being reassigned to a vacant position when an employer utilizes a best-qualified hiring policy. [19]  

This Comment explores the complexity of the ADA’s reasonable accommodation clause and an employer’s duty to reassign. Part I discusses the relevant provisions of the ADA, specifically the reasonable accommodation and reassignment clauses. [20]   Part II explores the split between the federal circuit courts, as well as the United States Supreme Court’s decision in U.S. Airways, Inc. v. Barnett , [21] which establishes a framework for ADA reassignment cases. [22]   Additionally, Part II details the facts of the case in the Fourth Circuit’s Elledge decision and explains the court’s holding. [23]   Part III analyzes the Elledge decision and explains how the Fourth Circuit’s heavy reliance on U.S. Airways was misguided and how it limited the rights of disabled employees further than the Supreme Court or the other circuits ever intended. [24]

Finally, Part IV argues that finding reassignment as a reasonable accommodation, despite an employer’s best-qualified hiring policy, better suits the provisions of the ADA for three reasons. [25]   First, the text and legislative history of the ADA support finding reassignment as a reasonable accommodation when there are no other accommodations an employer can make to employ their employees with disabilities. [26]   Second, reassignment maintains the ADA’s burden-shifting test, which the Supreme Court outlines in U.S. Airways , and allows the fact-intensive inquiry as to whether an accommodation is reasonable to stay with the jury. [27]   Lastly, the ADA’s reassignment clause sufficiently protects employers as to not make reassignment unreasonable. [28]

I. The Americans with Disabilities Act and The Reasonable Accommodation Clause

The ADA prohibits discrimination by an employer “against a qualified individual on the basis of disability” in any of the “terms, conditions, and privileges of employment.” [29]   A qualified individual under the ADA is “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” [30]   An individual’s essential job functions are the “fundamental job duties of the employment position.” [31]   Thus, the ADA requires employers to identify the essential functions of the job and then determine if the employee can perform them with a reasonable accommodation. [32]   If the employer determines the employee can perform the essential functions of the job with an accommodation, the employer’s failure to provide such an accommodation means the employer has engaged in a form of unlawful discrimination. [33]   The only way for an employer to overcome the reasonable accommodation requirement is by demonstrating that such a requirement would impose an undue hardship on the operation of its business. [34]

The ADA fails to provide a definition for what constitutes a reasonable accommodation, [35] but it does provide employers with a list of possibilities, one of them being reassignment of the employee to a vacant position. [36]   Despite the inclusion of reassignment in the statute, reassignment is intended to be an accommodation of last resort, requiring employers to reassign an employee with a disability only when there is no other accommodation that can keep the employee employed or when all other accommodations would pose an undue hardship on the employer. [37]   If keeping the employee in their current position is not possible, however, then the door to reassignment opens and must be considered. [38]   Since reassignment to a vacant position is specifically listed within the statutory text of the ADA, proponents of mandatory reassignment argue that the Act mandates it so long as the disabled employee is qualified. [39]   On the other hand, opponents of mandatory reassignment argue that because the ADA uses permissive language, it cannot require mandatory reassignment; these opponents believe Congress simply listed reassignment as something that “may” qualify as a reasonable accommodation. [40]   This permissive language has undoubtedly contributed to the controversy surrounding an employer’s duty to reassign; [41] the issue becomes more difficult when an employer normally fills job vacancies using a best-qualified hiring policy. 

II. The Circuit Courts Split

During the last two decades, federal circuit courts have disagreed as to whether the ADA requires mandatory job reassignment, which would require an employer to reassign a qualified disabled employee to a vacant position even if there is a better qualified individual. [42]   The Supreme Court has not addressed this specific question, [43] but it did address whether mandatory reassignment is reasonable when an employer utilizes a different nondiscriminatory hiring policy, specifically a seniority system, in U.S. Airways . [44]   Though not directly on point, lower courts have relied on U.S. Airways to support their position on reassignment when an employer has a best-qualified hiring policy in place. [45]   Unfortunately, the Supreme Court’s guidance has only divided the lower courts further, resulting in inconsistent applications of the law. [46]

A. The Supreme Court’s Decision in U.S. Airways, Inc. v. Barnett

In U.S. Airways , the Court was faced with the issue of whether an employer’s nondiscriminatory seniority system trumps a disabled employee’s accommodation request for a vacant position. [47]   The majority found reassignment to be unreasonable when it violates the rules of a seniority system because of the importance seniority has to employee-management relations. [48]   As the Court noted, seniority systems create “expectations of fair, uniform treatment” that would be undermined if a more junior employee were automatically reassigned to the vacancy. [49]   The effect of U.S. Airways is that employers no longer need to prove an undue hardship resulting from reassignment on a case-by-case basis—reassignment is presumed unreasonable if it violates an employer’s seniority system. [50]  

In U.S. Airways , reassignment was held to be unreasonable. [51]   But the holding was not a complete blow to employees with disabilities.  In its opinion, the Court acknowledged that the ADA requires employers to treat an employee with a disability preferentially , regardless of an employer’s disability-neutral rule. [52]   The Court emphasized that if it were not for the employer’s seniority system, an employee’s reassignment request would normally be reasonable within the meaning of the statute. [53]   Additionally, the Court held that employees may show special circumstances, based on the particular facts of their case, that warrant a finding that reassignment is reasonable despite an employer’s seniority system. [54]   Since U.S. Airways , a collection of courts have considered whether other nondiscriminatory policies, such as a best-qualified hiring policy, would make reassignment unreasonable. [55]   As a result, the split between the circuit courts on best-qualified hiring policies was borne.

B. The Disagreement Between the Circuit Courts

Before the Fourth Circuit’s decision, the Eighth and Eleventh Circuits found mandatory reassignment to be unreasonable when an employer utilized a best-qualified hiring policy, [56] and the Seventh and the Tenth Circuits found it reasonable. [57]  

• Circuit Courts Finding Mandatory Reassignment Unreasonable

The Eleventh and Eighth Circuits held that the ADA does not provide disabled employees preferential treatment. [58]   In these circuits, employers simply must identify to the employee that a vacancy exists and then permit the employee to apply equally amongst other applicants; the employer is not required to automatically reassign the employee to the vacant position. [59]   These circuits find the ADA’s permissive language to be indicative that Congress did not intend for reassignment to be required in all circumstances. [60]   Holding otherwise would “convert a nondiscrimination statute into a mandatory preference statute” that would be inconsistent with the nondiscriminatory purpose of the ADA. [61]   Additionally, these circuits rely on the Supreme Court’s decision in U.S. Airways to support their stance that a best-qualified policy automatically makes mandatory reassignment unreasonable. [62]   Since employers operate their businesses for profit, it would be unreasonable for an employer to pass over the best-qualified job applicant in favor of an employee with a disability because it would hinder job efficiency and good performance. [63]  

• Circuit Courts Finding Mandatory Reassignment Reasonable

The Seventh and Tenth Circuits find themselves on the opposite side, interpreting the ADA to require mandatory reassignment despite an employer’s nondiscriminatory best-qualified hiring policy. [64]   These circuits believe that allowing an employee to compete for a job open to the public is not an accommodation at all. [65]   For them, the ADA requires more; its “reference to reassignment would be redundant if permission to apply were all it meant.” [66]   Thus, an accommodation requires an active effort on the part of the employer—simply allowing an employee to compete does not fulfill this obligation. [67]

Like the Eighth and Eleventh Circuits, which rely on the ADA’s language to support their position, the Seventh and Tenth Circuits do as well.  The ADA defines reasonable accommodation to include “reassignment to a vacant position” rather than “consideration of reassignment to a vacant position.” [68]   Thus, these circuits rely on the ADA’s language to argue that if consideration of an applicant were all that was required by the ADA, then employers

could adopt a policy in favor of hiring the most qualified candidate such that a disabled employees could never rely on reassignment to establish the existence of a reasonable accommodation . . . . Such a result would effectively and improperly read ‘reassignment to a vacant position’ out of the ADA’s definition of ‘reasonable accommodation.’ [69]

Additionally, the Seventh and Tenth Circuits gave considerable deference to guidelines issued by the Equal Employment Opportunity Commission (“EEOC”), which Congress authorized to implement the ADA. 70

These circuits deferred to the EEOC’s interpretation of the ADA, which views the ADA as requiring mandatory reassignment when no other accommodations can accommodate the employee with a disability. 71   “Reassignment means that the employee gets the vacant position if s/he is qualified for it.” 72   In contrast to the Seventh and Tenth Circuits’ consideration of the EEOC’s interpretation, and despite the EEOC’s clear belief that employers are required to reassign employees with disabilities as an accommodation of last resort, the Eighth and Eleventh Circuits gave no consideration to the EEOC’s interpretation of the statute in their opinions. 73

The Seventh Circuit, prior to the Supreme Court’s decision in U.S. Airways , originally held that employers utilizing best-qualified hiring policies were not required to reassign employees with disabilities to vacant positions if there was a more qualified candidate seeking the same position. 74   But the court reversed its decision in light of the Supreme Court’s holding in U.S. Airways. 75   The Seventh Circuit found U.S. Airways as support for mandatory reassignment, despite an employer’s best-qualified hiring policy. 76   The court began by stating that the decision in U.S. Airways was a very narrow, fact-specific exception limited to cases where an employer uses a seniority system to fill job vacancies. 77   It then distinguished a seniority system, which involves the rights of other employees, from a best-qualified policy, which does not implicate the rights of others. 78   By distinguishing the two types of hiring policies, the Seventh Circuit explained why the holding in U.S. Airways does not survive in cases involving best-qualified policies. 79   Thus, while the Eighth and Eleventh Circuits interpreted the Supreme Court’s decision in U.S. Airways as support for the view that reassignment is unreasonable when an employer utilizes a best-qualified hiring policy, 80 the Seventh Circuit found the opposite, going so far as to reverse its own precedent. 81  

C. The Fourth Circuit Weighs In

This past year, the Fourth Circuit in Elledge broke the even split between the federal circuit courts when it joined the Eighth and Eleventh Circuits by holding that employees with disabilities are not entitled to special priority for reassignment. 82   The holding is significant because it conflicts with district court decisions made within the Fourth Circuit. 83   But more importantly, it is significant because it goes beyond the decisions of its sister circuits and the Supreme Court by foreclosing the possibility of reassignment under any circumstance when an employer utilizes a best-qualified hiring policy. 84

Chuck Elledge was an employee of Lowe’s Home Center (“Lowe’s”) and served as the company’s Market Director of Stores (“MDS”) for almost a decade—that is, until he began experiencing problems with his knee. 85   After several surgeries, Elledge’s doctor restricted his walking to no more than four hours a day and his workday to no more than eight hours. 86   These restrictions conflicted with the MDS position, which required Elledge to walk the floors he supervised and work over forty hours a week. 87   Lowe’s was a sympathetic employer; it accommodated Elledge’s disability by temporarily limiting his working hours and offering him the use of a motorized scooter to ease the strain on his knee during store visits. 88   Elledge refused, however, to use the scooter 89 and accommodated himself by assigning subordinates to drive him to different store locations. 90   When it was determined that Elledge would need reduced hours indefinitely, Lowe’s found that Elledge could not remain in his present position and discussed other career opportunities with him, including a less demanding and lower-paying position. 91   Elledge rejected the offer from Lowe’s and applied for two lateral director positions. 92   When he did not receive the lateral positions, Elledge brought suit against Lowe’s for violating its obligations under the ADA by removing him from the MDS role and refusing to automatically reassign him to either of the other two vacant director positions. 93   Lowe’s’ maintained that it did not violate the ADA for failing to reassign Elledge because it selected its candidates based on its “succession planning and best-qualified hiring policies.” 94

The Fourth Circuit began its inquiry by determining whether Elledge was a qualified individual within the meaning of the ADA, meaning that he could perform the essential functions of the job with or without reasonable accommodation. 95   Because the MDS position required Elledge to walk sixty-six percent of working hours and to work in excess of eight hours a day, the court concluded he could not perform the essential functions of the job. 96   But the court still had to confront whether Lowe’s was required to automatically reassign Elledge to a vacant director position that did not require as much walking, even though Lowe’s normally would fill that vacancy with whom it believed to be the best-qualified candidate. 97   The court began by emphasizing that reassignment is an accommodation of last resort because it protects not just the disabled employee but employers and other employees as well. 98   Next, the court relied on the Supreme Court’s decision in U.S. Airways where the Supreme Court held that the ADA does not “require employers to construct preferential accommodations.” 99   It requires only that “preferential treatment be extended as necessary to provide [employees with disabilities] with the same opportunities as their non-disabled colleagues.” 100   The Fourth Circuit interpreted this as requiring employers to simply allow disabled employees to compete for vacancies equally with other candidates. 101  

The court next highlighted how the Supreme Court identified “the value of stability in employee expectations” as the most important reason for rejecting reassignment when the employer uses a seniority system. 102   The court equated Lowe’s’ merit-based system— which had an “Enterprise Succession Management Process” nested within it—to a seniority system. 103  Like in U.S. Airways , the Elledge court found that the policy created employee expectations and that in the “run of cases,” reassignment in contravention of such a policy would be unreasonable. 104   The court’s heavy reliance on U.S. Airways resulted in Lowe’s not having to reassign its long-time employee and the subsequent termination of Elledge from his employment. 105

III.  Why the Fourth Circuit’s Decision Goes Too Far

The Fourth Circuit was right to conclude that Lowe’s was not required to reassign Elledge to a vacant position based on the specific facts of the case before it.  The court should not, however, have foreclosed the possibility of reassignment for future disabled employees whose last chance of employment at their company truly depends on reassignment.  As the Fourth Circuit noted, reassignment is an accommodation of last resort and is only required when no other accommodation can keep the employee with a disability employed or when all other accommodations would pose an undue hardship on the employer. 106   Here, Lowe’s extended a reasonable accommodation to Elledge; it provided him the use of a motorized scooter so he could move across the floors without straining his knee. 107   Thus, Lowe’s fulfilled its obligation under the ADA by providing Elledge an accommodation that could keep him in his current position.  But Elledge chose not to accept this accommodation and instead created his own accommodation without the approval of his employer. 108   While Elledge’s self-created accommodation allowed him to perform his job, the ADA does not require employers to accommodate employees with the accommodation of their choosing, 109 especially when such an accommodation creates extra work for other employees. 110   As the court noted, “Lowe’s made reasonable, sensitive attempts to accommodate an indisputably valued employee in his present position,” but Elledge undermined his case by refusing these accommodations and demanding others. 111

Additionally, Lowe’s had a unique best-qualified hiring policy, which the court acknowledged as special; 112 the Fourth Circuit should not have interpreted this policy as if it were a typical best-qualified hiring policy.  Within its best-qualified system, Lowe’s nested an “Enterprise Succession Management Process,” which it used to prepare its employees for promotion into the heightened responsibilities of the department’s director-level positions. 113   It was specifically used to promote talent interdepartmentally and provided lower-level employees with special training to prepare them for directorship positions. 114   This special system arguably creates the employee expectations at issue in U.S. Airways because Lowe’s actively trained employees to prepare them for directorship positions were they to open up. 115   Thus, the Fourth Circuit’s primary justification for rejecting mandatory reassignment in light of the best-qualified hiring policy was because of the impact it would have on the rights of other employees, which was the “most important” reason held by the Supreme Court in U.S. Airways . 116   For this reason, the court found this special kind of best-qualified system fell squarely within the ambit of U.S. Airways . 117

The succession system built into the best-qualified system in Elledge was unique and unlike typical best-qualified hiring policies that do not disrupt the rights of other employees. 118   Typically, a best-qualified system does not disrupt employee expectations of fair and uniform treatment because the most-qualified applicant never has a right to the position to begin with. 119   This differs from a seniority system where employees have an objective way of knowing whether they are next in line for a vacant position. 120   When an employer utilizes a best-qualified hiring policy, applicants have no knowledge of whether they are the best-qualified or not. 121   Therefore, there are no preconceived expectations of job entitlement. 122   Only the employer is impacted when the most-qualified applicant is passed over for a job vacancy by a disabled employee. 123

Additionally, an exception to reassignment for seniority systems does not create the problems that would arise if the same exception were applied to best-qualified hiring policies.  Seniority systems provide an objective way of deciding which employee receives the vacant position; the employer simply determines who the most senior employee is. 124   This contrasts with a best-qualified hiring policy where the employer must use a subjective analysis to determine who the “best” candidate is. 125   This subjectivity allows discrimination against employees with disabilities to go undetected because there is no objective way to determine who the employer believes is the “best.”  This distinction is notable because the Supreme Court was not faced with the threat of undetectable discrimination when it decided to exempt seniority systems from the case-by-case inquiry of whether reassignment creates an undue hardship on the employer. 126

The differences between a seniority system and best-qualified hiring policy are profound.  Because the Fourth Circuit found the policy in Elledge to resemble that of a seniority system, 127 it should not have foreclosed the possibility of reassignment in lieu of an employer’s best-qualified hiring policy when that was not the precise policy at issue.  A better outcome would have left open the possibility of reassignment and simply found it to create an undue hardship based on those facts, given that Lowe’s had a succession system built into its best-qualified hiring policy, which created employee expectations within the company. 128

The Fourth Circuit’s decision ultimately aligned with the Eighth and Eleventh Circuits’ decisions, which the Fourth Circuit referenced as support for its position. 129   But, while the other circuits, as well as the Supreme Court, left the door to reassignment cracked open for disabled employees, the Fourth Circuit’s decision shut it closed.  In U.S. Airways , the Supreme Court held that there may be special circumstances that warrant a finding that, despite the presence of a seniority system, the requested reassignment is reasonable on the particular facts of the case. 130   The Eleventh Circuit agreed, leaving open the possibility of reassignment despite an employer’s best-qualified hiring policy. 131   But the Fourth Circuit’s decision makes no mention of such a possibility, essentially precluding a disabled employee from ever being reassigned to a vacant position when its employer utilizes a best-qualified hiring policy.  This critical omission could result in cases being disposed of prematurely at the summary judgment stage without affording employees the opportunity to prove that the facts of their case warrant reassignment.

IV. Mandatory Reassignment is Consistent with the Provisions of the ADA

The Fourth Circuit’s evidently pro-employer decision leaves employees with disabilities without the opportunity to present to a court why the ADA requires their employer to reassign them to a vacant position, affording them the right to remain employed at their place of employment.  Such a decision goes against the spirit of the ADA and Congress’ vision when it enacted the statute.  Until the Supreme Court hears the precise issue, this Comment proposes that courts interpret the ADA as requiring mandatory reassignment to a vacant position when no other accommodations are available, despite an employer’s nondiscriminatory best-hiring policy.  Such a result better suits the provisions of the ADA.

A. The Text and Legislative History of the ADA Support Mandatory Reassignment

Congress enacted the ADA to protect persons with disabilities from discrimination in employment; 132 it explicitly chose to include reassignment to a vacant position as a way to achieve this outcome. 133   The provisions of the ADA are meant to be interpreted liberally in favor of the protected class. 134   When the ADA was first enacted, and the courts narrowly interpreted the definition of what it meant to be disabled, Congress amended the statute to make it easier for individuals with disabilities to qualify for protections under the ADA. 135   Congress’s initiative to amend the statute evidences its intent that the provisions of the ADA, including the reassignment clause, be construed broadly.  The congressional intent for mandatory reassignment is further evidenced by Congress’s inclusion of reassignment within the statute despite its absence in the Rehabilitation Act, which served as the framework for the ADA. 136   During the ADA’s legislation, legislators recognized the importance of reassignment by noting that “transfer to another vacant job for which the person is qualified may prevent the employee from being out of work and [the] employer from losing a valuable worker.” 137   The emphasis on reassignment during these various stages of the statute’s life demonstrate Congress’s intent for reassignment to be used by employers as a way to keep employees with disabilities employed. 

While Congress’s choice of the words “may include” before the list of possible accommodations is permissive, this permissive language can be reconciled with an employer’s duty to reassign. 138   The use of the word “may” before the list of accommodations is simply to indicate that an employer must perform an individualized analysis when determining which accommodation is most appropriate for the employee’s disability and essential job responsibilities. 139   It is “[not] an opportunity [to exchange] a ‘best qualified” standard into the word ‘reasonable.’“ 140   The statutory text of the ADA only calls for the disabled employee to be qualified for the position they wish to retain or seek; it does not require the employee with a disability to be the best-qualified candidate. 141   To read the statute otherwise would require courts to judicially amend “the statutory phrase ‘qualified individual with a disability’ to read, instead, ‘best qualified individual, notwithstanding the disability.’” 142   If Congress had wanted to protect most-qualified individuals, it could have stated that employers are not required to pass over more qualified candidates. 143

The purpose and spirit of the ADA supports the need for mandatory reassignment.  The ADA was enacted after Congress realized that “the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis.” 144   Allowing an exception to reassignment due to an employer’s best-qualified-hiring policy would provide employers with an easy and undetectable avenue to discriminate against individuals with disabilities.  Congress explicitly acknowledged that prejudices against people with disabilities will prevent them from competing on an equal basis with those who do not have disabilities. 145   As such, the argument that the ADA simply requires disabled employees to compete for job vacancies is unwarranted, especially in light of the Supreme Court’s acknowledgement that the ADA requires affirmative conduct and preferential treatment. 146   Thus, reassignment without competition is consistent with the plain meaning of the statute, its legislative history, and the Supreme Court’s interpretation of the ADA.

A hiring policy which uses an employer’s subjective determination on the relative strength of different applicants would allow bias and prejudice to influence the employer’s ultimate hiring decision.  In 2019, there were over twenty-four thousand ADA claims charged by the EEOC, 147 and the unemployment rate for employees with disabilities is nearly twice that of nondisabled workers. 148   With these numbers in mind, it is not surprising that in a study where mock job applications were sent to employers, applicants who disclosed disabilities received twenty-six percent fewer expressions of employer interests than those applicants who reported no disability. 149   These statistics support the position that reassignment to a vacant position should be mandatory because discrimination against persons with disabilities continues to persist today. 150   Since reassignment is the accommodation of last resort, it is often the last chance for an employee with a disability to remain employed. 151   The consequences for the passed over “best-qualified” candidate are not nearly as severe; they simply remain in their current position while the opportunity to move into another position is deferred rather than lost. 152   Because reassignment is the last saving grace to keep the employee employed, it should be read as a mandatory requirement to properly carry out the ADA’s purpose of ensuring the “full participation, independent living, and economic self-sufficiency” of individuals with disabilities. 1 53 

B. Burden-Shifting Test and Fact-Intensive Inquiry

Rather than a per se rule that precludes reassignment in every circumstance when an employer utilizes a best-qualified hiring policy, courts should find reassignment as being generally reasonable, then allow employers to establish why reassignment would create an undue hardship given the specific facts of their case.  Such an approach is consistent with the burden-shifting test framed by the Supreme Court in U.S. Airways. 154   Under this framework, the employee with a disability must first prove that an accommodation is reasonable on its face. 155   If “the employee cannot show the accommodation is reasonable ‘in the run of cases,’” then summary judgment against the plaintiff-employee is appropriate. 15 6  It is already established that reassignment is generally a reasonable accommodation in ADA cases; 157 therefore, the burden is on the employer to establish special case-specific reasons demonstrating why reassignment would cause them an undue hardship. 158

Following the Supreme Court’s framework on a case-by-case basis better follows the provisions of the ADA than a rule precluding reassignment when an employer has a best-qualified policy because reasonable accommodation requests and undue hardship defenses are fact-intensive inquiries that are meant to be considered on a case-by-case basis. 159   A per se rule outwardly establishing reassignment as unreasonable when an employer has a best-qualified policy would prematurely dispose of cases at the summary judgment stage, denying employees with disabilities from presenting their cases to a jury and demonstrating why the specific facts of their case warrant reassignment.  More importantly, if failure to reassign claims are prematurely disposed of, then employers may easily hide intentional discrimination in the name of hiring a “better-qualified” individual.  The need for these cases to reach a jury is imperative given that discrimination may be easily covered up by an employer’s justification of hiring the “best-qualified” candidate.  The jury should be charged with deciding whether the employer’s choice for the vacant position was actually the better-qualified individual or whether the “employer consciously selected a less-qualified candidate––something that employers do not usually do, unless some other strong consideration, such as discrimination, enter[ed] into the picture.” 160  

Rather than shutting the door on reassignment, a better approach would require employers to demonstrate why reassignment is unreasonable given their business circumstances.  Under this approach, an employee can survive a motion for summary judgment if the employer fails to reassign the employee to a vacant position.  A jury can then decide whether (1) a vacant position existed; (2) the employee was qualified for the vacant position; and (3) reassignment would have caused the employer undue hardship. 161   This approach is consistent with the Supreme Court’s framework in U.S. Airways , allows employees with disabilities to challenge their employer’s determination of their qualifications, and retains the jury’s role in these fact-intensive inquiries.

C. The ADA Sufficiently Protects Employers from Any Potential Abuse by the Reassignment Accommodation

Employers are naturally hesitant of a law that would require them to reassign employees to positions they were not hired for.  A per se rule precluding reassignment when an employer utilizes a best-qualified hiring policy is unnecessary, however, because the ADA already provides employers with sufficient statutory protections. 162   To begin, reassignment is the accommodation of last resort, meaning that employers are only required to consider reassignment when no other accommodation is available or when any available accommodation would create an undue hardship on their business. 163   The ADA’s last resort status protects employers by requiring employers and employees to consider all other possible accommodations before reassignment becomes a possibility.

The ADA only requires employers to accommodate disabled employees if the employee can first prove they are qualified, meaning they can perform the essential functions of the job. 164   When considering reassignment to a vacant position, the employee must prove they can perform the essential functions of the job they are seeking. 165   This qualification protects the employer and allows them to deny reassignment if the employee is not qualified for the vacant position.  Further, an employer does not need to create a vacancy for the employee with a disability; reassignment is only necessary when there is already a vacancy in place. 166   This protects employers from potential backlash from other employees whose positions might be compromised if the employer were forced to create job vacancies.  It also serves as a financial protection since employers will not need to create a new position and hire an extra employee.  Additionally, the employer has the right to decide which vacant job position is to be offered to the employee; 167 the employee does not have the right to decide, and the reassignment need not involve a promotion. 168

Finally, the employer is always free to show that reassignment would create an undue hardship on their business given the particular facts of their case. 169   As indicated in Elledge , there are circumstances where reassignment would prove an undue hardship on an employer who uses a best-qualified hiring policy. 170   This defense protects employers who find themselves in situations where reassignment may affect the rights of other employees or cause other hardships for the employer. 171   As such, the provisions of the ADA sufficiently protect employers from potential abuse.  The Act’s limitations mean it will be used infrequently, reserving its protections for those special circumstances where employees with disabilities are left with no other means to remain employed.

The split between the federal circuit courts with respect to an employer’s duty to reassign has resulted in inconsistent applications of the law, leaving both employees and employers confused as to their rights and obligations under the ADA.  The Supreme Court failed to resolve the ambiguity involving an employer’s duty to reassign; it only complicated the inquiry as evidenced by the conflicting interpretations of U.S. Airways used by the lower courts.  As a result, in some states, a qualified person with a disability will automatically be reassigned to a vacant position as a form of reasonable accommodation.  In others, the person with a disability must either compete for the vacant position amongst other applicants and potentially still not receive the position or leave their job and face unemployment. 

When Congress enacted the ADA, it realized the prejudice that people with disabilities face in employment; those prejudices are still very much alive today.  In order to carry out the Act’s main purpose, which is to allow more individuals with disabilities to enter the workplace and remain employed, reassignment should be required by employers, even if there is a better-qualified candidate for the vacancy.  Until the Supreme Court hears the issue, courts should require employers to reassign their employees with disabilities when no other accommodation can keep them employed.  Once an employee with a disability has established that they are otherwise qualified for the position, the burden should shift to the employer to demonstrate why reassignment would cause them an undue hardship.  To read the provisions of the ADA otherwise would allow employers to always deny people with disabilities vacant positions in the name of a best-qualified hiring policy; such a rule would essentially remove the reassignment clause from the list of accommodations written in the ADA.

Belen Wilson *

      [1].   Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101­–12213.

      [2].   Anniversary of Americans with Disabilities Act: July 26, 2020 , U.S. Census Bureau: Facts & Features (June 17, 2020), https://www.census.gov/newsroom/facts-for-features/2020/disabilities-act.html .

      [3] .   See 42 U.S.C. § 1210(b)(1); see also id . § 1210(a)(3) (finding that “discrimination against individuals with disabilities persists in such critical areas as employment”); Stephen F. Befort & Tracey Holmes Donesky, Reassignment Under the Americans with Disabilities Act: Reasonable Accommodation, Affirmative Action, or Both? , 57 Wash. & Lee L. Rev. 1045, 1046 (2000) (stating that one of Congress’s principal reasons for enacting the ADA was to help disabled people enter and stay in the workplace).

      [4].   U.S. Dep’t of Just., ADA Series Commemorates Upcoming Anniversary (2017), https://www.justice.gov/archives/opa/blog/ada-series-commemorates-upcoming-anniversary . 

      [5] .   See Lawrence D. Rosenthal, Most-Qualified-Applicant Hiring Policies or Automatic Reassignment for Employees with Disabilities? Still a Conundrum Almost Thirty Years After the Americans with Disabilities Act’s Enactment , 70 Baylor L. Rev. 715, 716 (2018) (finding that much of the early litigation concerning the ADA resulted in many pro-defendant opinions to the detriment of disabled employees); see also Stephen F. Befort, The Most Difficult ADA Reasonable Accommodation Issues: Reassignment and Leave of Absence , 37 Wake Forest L. Rev. 439, 440 (2002) (stating that during the ADA’s early years there was heavy litigation concerning the scope of the “disability” definition); Civil Rights Div., U.S. Dep’t of Just., Questions and Answers about the Department of Justice’s Notice of Proposed Rulemaking to Implement the Americans with Disabilities Act Amendments Act of 2008 (Jan. 30, 2014), https://www.ada.gov/nprm_adaaa/adaaa-nprm-qa.htm (stating that amendments to the ADA were passed as a result of Supreme Court decisions that narrowly interpreted the ADA).

      [6].   42 U.S.C. § 12101(b).

      [7].   See generally Rosenthal, supra note 5 (finding that early litigation concerning the ADA resulted in many pro-defendant opinions).

      [8] .   Id . at 716–17; see also ADA Amendments Act of 2008, Pub. L. No. 110–325, 122 Stat. 3553.  The “Findings and Purposes” section of the ADAAA states that the amendments are a direct response to some Supreme Court decisions, which narrowly interpreted the ADA.   See id. at 3554.

      [9] .   See Rosenthal, supra note 5, at 716–17 (explaining that the ADAAA was passed to make the ADA more helpful for individuals with disabilities as a result of too many pro-defendant court opinions).

     [10] .   See, e.g. , John E. Murray & Christopher J. Murray, Enabling the Disabled: Reassignment and the ADA , 83 Marq. L. Rev. 721, 722 (2000) (stating that courts disagree as to the scope and parameter of an employer’s duty to accommodate its disabled employees, specifically through reassignment). 

     [11] .   See generally Befort, supra note 5 (stating that the attention of courts has shifted to the reasonable accommodation clause); Michael Creta, Note, The Accommodation of Last Resort: The Americans with Disabilities Act and Reassignments , 55 B.C. L. Rev. 1693, 1697 (2014).  The reasonable accommodation clause includes the reassignment clause, which lists reassignment to a vacant position as a type of reasonable accommodation.  42 U.S.C. § 12111(9).

     [12].   979 F.3d 1004 (4th Cir. 2020).

     [13] .   See id. at 1007–09.  A most-qualified (or best-qualified) hiring policy is a policy in which the employer hires the most-qualified applicant for a vacant position.  See id . at 1016.

     [14] .   Id .

     [15].   Id. at 1014–15.

     [16] .   See Stephen F. Befort, Reasonable Accommodation and Reassignment Under the Americans with Disabilities Act: Answers, Questions and Suggested Solutions After U.S. Airways, Inc. v. Barnett, 45 Ariz. L. Rev. 931, 944 (2003) (“Of all the accommodations listed in the ADA, the reassignment accommodation has proven to be the most difficult to apply.”).

     [17] .   See id. (stating that reassignments have generated more litigation than any other reasonable accommodation).

     [18] .   Compare Elledge , 979 F.3d at 1016–18 (finding mandatory reassignment to be unreasonable when an employer utilizes a best-qualified hiring policy), and EEOC v. St. Joseph’s Hosp., Inc., 842 F.3d 1333, 1346–47 (11th Cir. 2016) (same), and Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 483 (8th Cir. 2007) (same), with EEOC v. United Airlines, Inc., 693 F.3d 760, 761 (7th Cir. 2012) (finding that the ADA mandates reassignment to another position when there is no other reasonable accommodation the employer can make), and Smith v. Midland Brake, Inc., 180 F.3d 1154, 1181, 1183 (10th Cir. 1999) (same).

     [19] .   See, e.g. , Elledge , 979 F.3d at 1018 (“In order to prove a prima facia case that a removal violated the ADEA, [a plaintiff] must show inter alia that he was qualified for his job.”).   See also discussion infra Part III.

     [20] .   See infra Part I.

     [21].   535 U.S. 391 (2002).

     [22] .   See infra Part II.

     [23] .   See infra Part II.C.

     [24] .   See infra Part III.

     [25] .   See infra Part IV.

     [26] .   See infra Part IV.A.

     [27] .   See infra Part IV.B.

     [28] .   See infra Part IV.C.

     [29].   42 U.S.C. § 12112(a).

     [30] .   Id. § 12111(8).

     [31].   29 C.F.R. § 1630.2(n)(1) (2021).

     [32] .   See Creta, supra note 11, at 1702 (explaining how the ADA requires employers to engage in a two-step inquiry); Befort & Holmes Donesky, supra note 3, at 1051 (same).

     [33].   42 U.S.C. § 12112(b)(5)(A) (defining discrimination as the failure to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability”).

     [34] .   Id.   An undue hardship is an “action requiring significant difficulty or expense.”  Id. § 12111(10)(A).

     [35] .   See Thomas F. O’Neil III & Kenneth M. Reiss, Reassigning Disabled Employees Under the ADA: Preferences Under the Guise of Equality? , 17 Lab. Law. 347, 349 (2001) (stating that the statute “provides no guidance whatsoever in determining whether a certain accommodation is reasonable”).

     [36] .   See 42 U.S.C. § 12111(9)(B).

     [37] .   EEOC, Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (2002), https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada .

     [38] .    Id.

     [39] .    See, e.g. , Smith v. Midland Brake, Inc., 180 F.3d 1154, 1165 (10th Cir. 1999).

     [40] .   See EEOC v. St. Joseph’s Hosp., Inc., 842 F.3d 1333, 1345 (11th Cir. 2016) (“The ADA does not say or imply that reassignment is always reasonable.  To the contrary, the use of the word ‘may’ implies just the opposite: that reassignment will be reasonable in some circumstances but not in others.”). 

     [41] .   See, e.g. , Court Holds ADA Does Not Require Reassignment Without Compensation , Shawe Rosenthal LLP (Dec. 31, 2016), https://shawe.com/articles/court-holds-ada-does-not-require-reassignment-without-competition/ .

     [42] .   See St. Joseph’s Hosp. , 842 F.3d at 1345 (holding that reassignment is not mandatory under the ADA). But cf. Smith , 180 F.3d at 1165 (holding that reassignment is mandatory).

     [43].   In 2007 the Supreme Court agreed to address whether reassignment would be reasonable in the context of most-qualified hiring systems, but the parties settled the case prior to oral argument rendering it moot.  See Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 483 (8th Cir. 2007).

     [44] .   See U.S. Airways, Inc, v. Barnett, 535 U.S. 391, 392 (2002).

     [45] .   See, e.g. , St. Joseph’s Hosp ., 842 F.3d at 1345.

     [46] .   Compare Huber , 486 F.3d at 483 (finding that the Supreme Court’s decision in U.S. Airways bolstered its decision that reassignment is unreasonable when an employer utilizes a best-qualified hiring policy), with EEOC v. United Airlines, Inc., 693 F.3d 760, 764–65 (7th Cir. 2012) (finding that the Supreme Court’s decision in U.S. Airways provides support for noncompetitive reassignment). 

     [47] .   U.S. Airways , 535 U.S. at 391.

     [48] .   Id. at 403.

     [49] .   Id. at 404.

     [50].   Jared Hager, Note, Bowling for Certainty: Picking Up the Seven-Ten Split by Pinning Down the Reasonableness of Reassignment After Barnett, 87 Minn. L. Rev. 2063, 2081–82 (2003).

     [51] .   U.S. Airways , 535 U.S. at 403.

     [52] .   Id. at 397.

     [53] .   Id. at 403.

     [54] .   Id. at 405.

     [55] .   See infra notes 57–58.

     [56].   EEOC v. St. Joseph’s Hosp., Inc., 842 F.3d 1333, 1345 (11th Cir. 2016) (“[T]he ADA does not require reassignment without competition for, or preferential treatment of, the disabled.”); Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 483 (8th Cir. 2007) (stating that the ADA “does not require an employer to reassign a qualified disabled employee to a vacant position when such a reassignment would violate a legitimate nondiscriminatory policy of the employer to hire the most qualified candidate”).

     [57].   EEOC v. United Airlines, Inc., 693 F.3d 760, 765 (7th Cir. 2012) (adopting the approach that “the ADA requires employers to appoint disabled employees to vacant positions, provided that such accommodations would not create an undue hardship”); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1165 (10th Cir. 1999) (concluding that reassignment to a vacant position must be offered to the disabled employee if he or she is unable to perform their existing job).  Some consider the D.C. Circuit to require mandatory reassignment to a vacant position; however, the court was not confronted with an employer’s best-qualified hiring policy when it decided the case.  See Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1304 (D.C. Cir. 1998).

     [58] .   St. Joseph’s Hosp ., 842 F.3d at 1345; Huber , 486 F.3d at 483.

     [59] .   See St. Joseph’s Hosp ., 842 F.3d at 1345; Huber , 486 F.3d at 483.

     [60] .   See St. Joseph’s Hosp ., 842 F.3d at 1345 (“To the contrary, the use of the word ‘may’ implies just the opposite: that reassignment will be reasonable in some circumstances but not in others.”). 

     [61] .   Huber , 486 F.3d at 483 (quoting EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024, 1028 (7th Cir. 2000) (internal citations omitted), overruled by United Airlines, Inc. , 693 F.3d at 764–65).  The Eighth Circuit viewed U.S. Airways as support for its position, even though the Supreme Court stated in that case that the ADA requires employers to sometimes treat an employee with a disability preferentially.  See U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 397–98 (2002).

     [62] .   Huber , 486 F.3d at 483 (stating that “[t]his conclusion is bolstered by the Supreme Court’s decision in U.S. Airways, Inc. v. Barnett ”).

     [63] .   St. Joseph’s Hosp ., 842 F.3d at 1346.

     [64].   United Airlines, Inc. , 693 F.3d at 763; Smith v. Midland Brake, Inc., 180 F.3d 1154, 1165 (10th Cir. 1999).

     [65] .   Smith , 180 F.3d at 1165 (“Allowing the plaintiff to compete for jobs open to the public is no accommodation at all. . . . [The employer’s] policy or practice that all reassignments are made through competitive hiring prevents the reassignment of employees with disabilities to vacant positions for which they are qualified and discriminates against qualified individuals with disabilities.” (quoting Ransom v. State of Ariz. Bd. of Regents, 983 F. Supp. 895, 902–03 (D. Ariz. 1997) (internal citations  and quotation marks omitted)). 

     [66] .   Id . (citing Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1304 (D.C. Cir. 1998)).

     [67] .   Aka , 156 F.3d at 1304.

     [68] .   Smith , 180 F.3d at 1164.

     [69].   Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1205 (10th Cir. 2018).

• See 42 U.S.C. § 12116 (authorizing the EEOC to create regulations to implement the ADA).
• See EEOC, supra note 37.
• Smith , 180 F.3d at 1166–67 (quoting EEOC, Enforcement Guidance: Reasonable accommodation and Undue Hardship Under the Americans With Disabilities Act 44 (1999)).
• See EEOC v. St. Joseph’s Hosp., Inc., 842 F.3d 1333, 1345–47 (11th Cir. 2016); Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 482–83 (8th Cir. 2007).
• See EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024, 1029 (7th Cir. 2000), overruled by EEOC v. United Airlines, Inc., 693 F.3d 760, 763 (7th Cir. 2012).
• See United Airlines , 693 F.3d at 761, 764–65.
• Id. at 763.
• Id. at 764.
• Id. (stating that “the violation of a best-qualified selection policy does not involve the property-rights and administrative concerns (and resulting burdens) presented by the violation of a seniority policy”).
• 80 . See supra notes 59–64 and accompanying text.
• 81 . See United Airlines , 693 F.3d at 765.
• 82 . See Elledge v. Lowe’s Home Ctrs., LLC, 979 F.3d 1004, 1014–15 (4th Cir. 2020) (stating that the ADA simply provides that employers do not need to create preferential accommodations that maximize workplace opportunities for employees with disabilities).
• 83 . See Eustace v. Springfield Pub. Schs., 463 F. Supp. 3d 87, 106–09 (D. Mass. 2020); Kosakoski v. PNC Fin. Servs. Grp., Inc., No. 12-cv-00038, 2013 WL 5377863, at *17 (E.D. Pa. Sept. 26, 2013) (finding that an employer’s best-qualified hiring policy does not create a per se undue hardship that would alleviate the employer’s duty to reassign).
• 84 . Elledge , 979 F.3d at 1016.
• 85 . Id . at 1007–08.
• 86 . at 1008.
• 87 . at 1009–10.
• 88 . at 1008.
• 90 . at 1008, 1012 (according to Elledge, this restructuring also allowed him to perform the true essential functions of his job).
• Id. at 1008.
• Id. at 1008, 1017.
• Id. at 1009 (citing 42 U.S.C. § 12111(8)).
• Id. at 1012.  When determining whether an employee is a qualified individual when seeking reassignment as a reasonable accommodation, the relevant question is whether the employee is qualified for the new position, not whether the employee is qualified for her current position.   See United States EEOC v. St. Joseph’s Hosp., Inc., 842 F.3d 1333, 1344 (11th Cir. 2016).
• Elledge , 979 F.3d at 1013–14.
• Id. at 1014.
• Id. at 1015.
• Id. at 1016–17.
• Id. at 1015 (citing U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 404–05 (2002)).
• Id . at 1015–16.
• Id. at 1016 (Lowe’s’ policy “invites, rewards, and protects the formation of settled expectations regarding hiring decisions.”).
• Id. at 1015–16, 1018.
• EEOC, supra note 37.
• Elledge , 979 F.3d at 1016 (stating that “Lowe’s offer of a motorized scooter was reasonably calculated to mitigate the disadvantages of Elledge’s reduction in natural mobility”).
• Id. at 1012.
• The ADA: Your Responsibilities as an Employer (2021) , EEOC,

https://www.eeoc.gov/publications/ada-your-responsibilities-employer (last visited Jan. 27, 2022) (“It need not be the best accommodation or the accommodation the individual with a disability would prefer . . . .”).

• Elledge , 979 F.3d at 1013 (stating that an employer “do[es] not need to change a job’s essential functions or split them across multiple employees” to accommodate an employee with a disability (citing 29 C.F.R. app. § 1630.2(o))).
• Id. at 1013.
• Id. at 1016 (“Lowe’s advanced its employees in accordance with a special kind of best-qualified hiring system.” (emphasis added)).
• Id. (noting that this hiring policy was “a succession system within a best-qualified system”).
• Id. at 1016.
• See Hager, supra note 51, at 2091.
• See Cal. Brewers Ass’n v. Bryant, 444 U.S. 598, 606, 613–14 (1980) (stating that seniority systems are objective and easily calculable since they are based on the length of employment with a particular employer).
• EEOC v. Mfrs. & Traders Trust Co., 429 F. Supp. 3d 89, 115 (D. Md. 2019) (“Unlike a seniority system, a best-qualified candidate policy provides no guarantee of steady and predictable advancement.  Indeed, by its very nature, a best-qualified employee policy undermines predictability, as employees cannot know the pool of applicants against whom they will compete.”).
• There is no legal entitlement to a vacant job position based on an employer’s best-qualified hiring policy because the applicant does not have a contractual agreement with the employer that provides a right to the position.  See U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 409 (2002) (O’Connor, J., concurring).
• Mfrs. & Traders Trust , 429 F. Supp. 3d at 116.
• See Bryant , 444 U.S. at 605–06.
• See EEOC v. St. Joseph’s Hosp., Inc., 842 F.3d 1333, 1346 n.5 (11th Cir. 2016) (acknowledging that a merit-based selection policy leaves more room for subjectivity and is inherently more susceptible to abuse for discriminatory purposes).
• See Barnett , 535 U.S. at 421–22 (Souter, J., dissenting).
• Elledge v. Lowe’s Home Ctrs., LLC, 979 F.3d 1005, 1016 (4th Cir. 2020).
• Barnett , 535 U.S. at 403–06.
• EEOC v. St. Joseph’s Hosp., Inc., 842 F.3d 1333, 1345 (11th Cir. 2016).
• 42 U.S.C. § 12101(b)(1).
• 42 U.S.C. § 12111(9)(B).
• ADA Amendments Act, Pub. L. No. 110–325, 122 Stat. 3553 § 2(a)(4) (2008).  (“[T]he holdings of [recent Supreme Court cases] . . . have narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect . . . .”).
• Creta, supra note 11, at 1698; see also Befort, supra note 5, at 449 (stating that the ADA departed from the Rehabilitation Act by including “reassignment to a vacant position” in its list of reasonable accommodations (quoting 42 U.S.C. § 12111(9)(B))).
• H.R. Rep. No. 101-485, pt. 2, at 63 (1990), as reprinted in 1990 U.S.C.C.A.N. 303, 345.
• See 42 U.S.C. § 12111(9); EEOC v. Mfrs. & Trust Co., 429 F. Supp. 3d 89, 112 (D. Md. 2019).
• Mfrs. & Trust , 402 F. Supp. 3d at 112.
• Id. at 113 (quoting Smith v. Midland Brake, Inc., 180 F.3d 1154, 1168 n.7 (10th Cir. 1999)).
• 42 U.S.C. § 12112(a).
• Mfrs. & Trust , 429 F. Supp. 3d at 112.
• Creta, supra note 11, at 1719.
• 42 U.S.C. § 12101(a)(8).
• See 42 U.S.C. § 12101(a)(2) (stating that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem”).
• U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 400 (2002).
• EEOC, Charge Statistics (Charges filed with EEOC) FY 1997 Through FY 2020 (2021), https://www.eeoc.gov/statistics/charge-statistics-charges-filed-eeoc-fy-1997-through-fy-2020 .
• Press Release, U.S. Bureau of Lab. Stats., Persons with a Disability: Labor: Force Characteristics Summary (Feb. 24, 2021), https://www.bls.gov/news.release/disabl.nr0.htm .
• Sarah Parker Harris & Rob Gould, Research Brief: Experience of Discrimination and the ADA , ADA Nat’l Network (2019) (citing J. E. Beatty, Career Barriers Experienced by People with Chronic Illness: A US Study , 24 Emp. Resp. & Rts. J., 91–110 (2012)), https://adata.org/research_brief/experience-discrimination-and-ada .
• Stacy M. Hickox, Transfer as an Accommodation: Standards from Discrimination Cases and Theory , 62 Ark. L. Rev. 195, 224 (2009).
• See Befort, supra note 5, at 469.
• Id. at 469–70.
• 42 U.S.C. § 12101(a)(7)–(8).
• U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401 (2002).
• EEOC v. Mfrs. & Trust Co., 429 F. Supp. 3d 89, 103 (D. Md. 2019) (quoting Barnett , 535 U.S. at 394.
• Barnett , 535 U.S. at 402–03 (stating that normally a reassignment request is reasonable within the meaning of the ADA).
• Id. at 401–02.
• See Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 650 (1st Cir. 2000) (reasonable accommodation requests require “difficult, fact intensive, case-by-case analyses” and are “ill-served by per se rules or stereotypes”).
• Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1294 (D.C. Cir. 1998).
• See Terrazas v. Medlantic Healthcare Group, Inc., 45 F. Supp. 2d 46, 54 (D.D.C. 1999).
• See Smith v. Midland Brake, Inc., 180 F.3d 1154, 1170 (10th Cir. 1999) (“Congress has already significantly cabined the obligation to offer reassignment to a qualified employee who is disabled so as to ensure that it is not unduly burdensome, or even particularly disruptive, of an employer’s business.”). 
• See 42 U.S.C. § 12112(b)(5)(A) (stating that an employer only needs to accommodate an “otherwise qualified individual with a disability” (emphasis added)). 
• See EEOC, supra note 109.
• See id .; see also id. , supra note 109 (stating that an employer is “not required to create a position or to bump another employee in order to create a vacancy”).
• Smith , 180 F.3d 1154, 1170 (10th Cir. 1999).
• 42 U.S.C. § 12112(b)(5)(A). 
• See Elledge v. Lowe’s Home Ctrs., LLC, 979 F.3d 1004, 1016–18 (4th Cir. 2020).
• See 42 U.S.C. § 12111(10).

      *.   J.D. Candidate 2022, Wake Forest University School of Law; Political Science & Spanish, B.A. 2018, Emory University.  Thank you to the Board and Staff of the Wake Forest Law Review for their hard work and time on this Comment.  Thank you also to my family and friends for their encouragement and for enduring endless discussions on the ADA.  Lastly, I would like to thank Professor Sue Grebeldinger for igniting my interest in Employment Law.  

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Why has my case been reassigned to another judge.

There are many reasons why a case is reassigned to a new judge–most of which involve the internal administration of the court. For instance, when a judge retires, passes away, or leaves the bench, the cases assigned to that judge must be reassigned to other District of Connecticut judges. In addition, when a new judge joins the bench, cases must be reassigned to the new judge. Furthermore, as part of the court’s general administrative functions, cases may be reassigned to different judges to equalize the caseload among the judges in the court.

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In 2019, we are poised to learn where the Fourth Circuit stands on reassignment as an accommodation—an issue that has split the Circuits.

Before discussing where courts are divided, let’s start with the consensus.  First, the Americans with Disabilities Act (“ADA”) clearly requires employers to make reasonable accommodations to the limitations of an employee with a disability unless an employer can show that the accommodation would impose an undue hardship.  The statutory text of the ADA states that the term “reasonable accommodation” may include “reassignment to a vacant position.”  42 U.S.C. § 12111(9)(B) .  Thus, if during the interactive process an employer is unable to identify a reasonable accommodation that will enable an employee with a disability to continue performing the essential functions of his or her current job, an employer may need to consider reassigning the employee to a vacant position—often referred to as the accommodation “of last resort.”  It is here, when we get to the meaning of “reassignment,” where courts diverge.

Does reassignment mean that the employee seeking accommodation gets the vacant position if he or she is qualified for it?  Or, does the ADA only require that the employee be allowed to compete equally with other applicants for the position?  Or, is the answer somewhere in the middle?

The Supreme Court has held that, in the run of cases, an employee with a disability seeking an accommodation is not entitled to a vacant position over a worker with superior rights to bid for the job under an employer’s seniority system.   US Airways, Inc. v. Barnett , 535 U.S. 391, 403 (2002) .  The Supreme Court, however, has not addressed the rights of an employee with a disability seeking a reassignment outside this seniority system context.

A recurring, critical question is whether an employee with a disability seeking an accommodation is entitled to a vacant position over someone more qualified for the job, particularly when an employer has a practice or policy, like most employers do, of hiring the most qualified person for the job.  According to the Equal Employment Opportunity Commission (“EEOC”), reassignment means the employee with the disability seeking reassignment gets the vacant position if qualified for it even if another individual is more qualified.   EEOC, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act  (Oct. 17, 2002).

Circuit Courts of Appeals are split on this issue.   Compare Huber v. Wal-Mart Stores, Inc. , 486 F.3d 480, 483 (8th Cir. 2007) (“[T]he ADA is not an affirmative action statute and does not require an employer to reassign a qualified disabled employee to a vacant position when such a reassignment would violate a legitimate nondiscriminatory policy of the employer to hire the most qualified candidate.”),  and   EEOC v. St. Joseph’s Hosp., Inc. , 842 F.3d 1333, 1346 (11th Cir. 2016) (“Requiring reassignment in violation of an employer’s best-qualified hiring or transfer policy is not reasonable ‘in the run of cases.’”),  with EEOC v. United Airlines, Inc. , 693 F.3d 760, 761 (7th Cir. 2012) (“[T]he ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer.”),  Smith v. Midland Brake, Inc. , 180 F.3d 1154, 1169 (10th Cir. 1999) (en banc) (“[R]equiring the reassigned employee to be the best qualified employee for the vacant job is judicial gloss unwarranted by the statutory language or its legislative history.”),  and   Aka v. Wash. Hosp. Ctr. , 156 F.3d 1284, 1304 (D.C. Cir. 1998) (en banc) (explaining that the word “reassign” in the ADA’s statutory text “must mean more than allowing an employee to apply for a job on the same basis as anyone else.”).

In  Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1205 (10th Cir. 2018) , the Tenth Circuit recently reiterated its position that “in most situations, an employer must award the [vacant] position to the disabled, but qualified, employee.”  The Tenth Circuit, however, explained that an employer’s policy of hiring the most qualified applicant for vacant positions is relevant and an “employer could point to its policy and argue that while the employee was technically qualified for a given position, the employee’s qualifications for the position fell significantly below the qualifications of other applicants such that reassignment is not reasonable or would place an undue hardship on the employer.”

The Fourth Circuit Court of Appeals, like several other Circuit Courts, has never squarely addressed this issue, but it could soon because of an appeal pending in  Elledge v. Lowe’s Home Ctrs., LLC , No. 5:16-cv-00227-RJC-DCK (W.D.N.C. Dec. 20, 2018) .  Elledge sought reassignment to multiple positions after his knee condition left him unable to perform the essential functions of his current job, which required frequent traveling, walking, and standing.  Lowe’s, like many employers, had a hiring policy requiring that jobs be posted and that individuals apply and compete for vacant jobs.  While Elledge applied for multiple vacant jobs, the evidence showed that Elledge did not obtain these positions because other applicants were more qualified.

Elledge brought suit alleging that Lowe’s violated the ADA by failing to reassign him to the vacant positions sought.  The district court dismissed Elledge’s claims on summary judgment.  The district court explained that Elledge “should not have enjoyed a privileged status in the job application process . . . . He was required to adhere to Lowe’s standard policy and compete on equal footing with other employees and outside applicants.” Elledge recently appealed the decision, and a ruling from the Fourth Circuit should come later this year.

Given the Circuit split on the extent of an employer’s obligation to reassign an employee with a disability to a vacant position as a reasonable accommodation, the Supreme Court may soon resolve this issue should the appropriate case come before it.  Until then, employers should stay up to date on the evolving law in the jurisdictions where they operate and consult with legal counsel when considering reassignment as an accommodation.

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Reassigning cases on remand in the interests of justice, for the enforcement of appellate decisions, and for other reasons that remain unclear.

Jonathan D. Colan

Federal appellate courts have the authority to order reassignment of cases to different district judges as part of their supervisory authority over the district courts within their circuits. This Article examines the categories of cases in which the Eleventh Circuit has ordered reassignment to different district court judges on remand and explains the rationale underlying reassignment in each category. The more understandable cases address both the appearance and the presence of bias or impropriety by the original trial judge. This Article describes the general principles underlying the Eleventh Circuit’s reassignment practices and then questions why reassignment is necessary in cases involving government breaches of plea agreements where none of the usual reasons underlying reassignment seem to exist.

In United States v. Torkington , the Eleventh Circuit extended the principle underlying reassignment beyond cases involving an erroneous refusal of the trial judge to recuse himself or herself. While the Torkington test addresses problems regarding the original trial judge’s bias, appearance of bias, recalcitrance, or missteps, there is an interesting deviation from these bases for reassignment in cases involving breached plea agreements. Relying on the United States Supreme Court’s decision in Santobello v. New York , the Eleventh Circuit holds that the available remedies in a case where the prosecution breaches a plea agreement by making sentencing arguments or recommendations it promised not to make are either for the defendant to be allowed to withdraw his guilty plea or for the case to be remanded for resentencing by a different judge. The Eleventh Circuit reasoned that the trial judge who heard the prosecutor’s improper sentencing argument cannot un-hear that argument when the case is remanded for resentencing. Yet, trial judges (and even lay jurors) are routinely presumed to be able to disregard improper evidence and arguments.

The rationale for reassignment in breached plea agreement cases remains curiously unexplored and seemingly at odds with the rationales underlying reassignment in other scenarios. This Article suggests that the Eleventh Circuit may wish to consider formalizing its reassignment practices and criteria by local rule.

Recommended Citation

Jonathan D. Colan, Reassigning Cases on Remand in the Interests of Justice, for the Enforcement of Appellate Decisions, and for Other Reasons That Remain Unclear , 72 U. Mia. L. Rev. 1092 (2018) Available at: https://repository.law.miami.edu/umlr/vol72/iss4/6

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Why has my case been reassigned to another judge?

There are many reasons why a case is reassigned to new judge - most of which involve the internal administration of the Court.  For instance, when a judge passes away, retires, or leaves the bench, the cases assigned to that judge must be reassigned to the other Southern District of New York judges.  In addition, when a new judge joins the bench, cases must be reassigned to the new judge.  Furthermore, as part of the Court’s general administrative functions, cases are reassigned to different judges to equalize the caseload in the Court.

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Lcrr 56.5 reassignment of cases.

56.5      Reassignment of cases

• Reassignment to promote judicial economy - The court may reassign cases from one judge to another (i) to equalize and balance workloads among judges; (ii) to assign cases to senior or visiting judges or remove cases from their dockets as necessary; (iii) to comply with the requirements of the Speedy Trial Act, or (iv) for other reasons of judicial economy. Any case may be reassigned under this rule from one judge to another judge with the consent of both judges. Cases may also be reassigned by administrative order of the Chief Judge if approved by a majority of active district judges.
• Definition – Cognate cases are pending criminal actions that have substantial questions of fact or law in common such that their assignment to a single judge is likely to effect a substantial saving of judicial effort and to avoid wasteful and duplicative proceedings for the court and the parties.
• Procedure for reassignment – When a district judge determines that reassignment of cognate cases would serve the interests of justice and judicial economy, the judge will contact all other district judges to whom cognate cases have been assigned.  If all those judges agree to reassignment, the Chief Judge will enter an administrative order reassigning such cognate cases to the district judge with the earliest numbered case.  The administrative order may also provide for automatic assignment of future cognate cases to that district judge, and for an adjustment of future case assignments to that district judge to compensate for the increased workload.

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Definition of reassign verb from the Oxford Advanced American Dictionary

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• 2 reassign something (to somebody/something) to give something to a different person or organization; to change the status of something The case was reassigned to a different court.

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• accommodate
• accommodate someone with something
• administration
• arm someone with something
• hand something down
• hand something in
• hand something out
• hand something over

reassignment | Business English

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Definition of reassign

transitive verb

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These examples are programmatically compiled from various online sources to illustrate current usage of the word 'reassign.' Any opinions expressed in the examples do not represent those of Merriam-Webster or its editors. Send us feedback about these examples.

Word History

1611, in the meaning defined above

Dictionary Entries Near reassign

reassociative

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“Reassign.” Merriam-Webster.com Dictionary , Merriam-Webster, https://www.merriam-webster.com/dictionary/reassign. Accessed 7 May. 2024.

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Supreme Court eases the path for discriminatory transfer claims

The US Supreme Court’s recent ruling in Muldrow v. City of St. Louis clarifies whether a job transfer on the basis of sex could be considered discrimination within the meaning of Title VII, even where the transfer does not cause “significant” harm to the worker.

The Court ruled on April 17, 2024, that, although employees must show some harm with respect to an identifiable term or condition of employment resulting from a job transfer in order to prevail in a Title VII suit, they do not need to show that the harm incurred was “significant” or otherwise exceeded some heightened bar.

Specifically, the Court rejected the legal standards being applied by any circuit court that has previously required a Title VII plaintiff to show “significant,” “material,” or “serious” injury in connection with the challenge of a job transfer. Simply put, Muldrow is likely to have a reverberating impact on whether job transfers (or work reassignments or other job-related actions that allegedly leave an employee "worse off" with respect to an identifiable term or condition of employment) constitute an adverse employment action for purposes of anti-discrimination statutes.

Factual background

Plaintiff Jatonya Clayborn Muldrow was a plainclothes officer in the St. Louis Police Department’s specialized Intelligence Division. Her duties included investigating corruption and human trafficking cases and overseeing the Gang and Gun Crimes Unit. Muldrow also served as a Task Force Officer with the FBI, which allowed her access to FBI materials, a take-home vehicle, and additional authority to conduct investigations outside of St. Louis.

In 2017, after a change in Department leadership, the new commander transferred Muldrow, against her wishes, out of the unit and into a uniformed position in a different district. While the former commander had given Muldrow high praise for her work, his replacement allegedly preferred to assign a male officer in her position, noting in his deposition that the work could be “very dangerous.” While Muldrow retained her rank and pay, her new responsibilities included supervising neighborhood patrol officers, reviewing and approving arrests, and handling other administrative matters. Because she no longer served as a Task Force Officer, Muldrow was forced to surrender her FBI credentials and take-home vehicle. Further, she claimed, she lost the opportunities, perks, and prestige that were associated with her previous position.

Procedural background

Muldrow filed a Title VII lawsuit against the City of St. Louis, alleging that her forced transfer out of the Intelligence Division constituted gender discrimination.

The District Court granted the City summary judgment, finding that Muldrow needed to show that the transfer caused her “’significant’ change in working conditions producing ‘material employment disadvantage’” with respect to the terms or conditions of her employment. Because the transfer did not impact Muldrow’s salary or rank, and she did not provide evidence that it had harmed her career prospects, the court found that she had not met the requisite standard for harm. Being required to work a rotating schedule (including weekends) and the loss of Muldrow’s take-home vehicle were instead found to be “minor alterations of employment, rather than material harms.”

The US Court of Appeals for the Eighth Circuit affirmed the District Court’s judgment, emphasizing that Muldrow failed to make a showing that the transfer caused a “materially significant disadvantage” because, among other reasons, she maintained the same title, salary, and benefits, and experienced only an “insufficient” change in job responsibilities.

The US Supreme Court granted certiorari to resolve a circuit split on whether an employee challenging a job transfer under Title VII must meet a “heightened threshold of harm – be it dubbed significant, serious, or something similar.”

The City presented three arguments for maintaining a “significance” standard, rooted in text, precedent, and policy. In a majority opinion authored by Justice Elena Kagan, and joined by five other justices, the Supreme Court rejected all three arguments, vacating and remanding the case for further proceedings.

First, the City presented a textual argument, predicated on Title VII’s basic prohibition that employers may not fail or refuse to hire, discharge, or “otherwise discriminate” against a person based on a protected trait. Because refusing to hire or discharge someone “causes a significant disadvantage,” the City argued that the “otherwise discriminate” prong covering transfer decisions should be read to require an equal level of harm.

The Court found this argument unpersuasive. Instead of the degree of harm, the Court ruled that the text itself provided a different shared trait: “[e]ach kind of prohibited discrimination [under Title VII] occurs by way of an employment action,” such as hiring, firing, or otherwise altering the terms or conditions of employment. With this finding, the Court concluded there was no need for a “significant-harm requirement” to be read into the text.

Next, the Court considered the City’s argument based on existing precedent. The City relied on Burlington Northern & Santa Fe Railway Co. v. White , a 2006 opinion which found that Title VII applies only when a retaliatory action is “materially adverse,” meaning that it causes “significant harm.” The City argued to the Court that the same standard of significant harm in retaliation cases should be imported into discriminatory job transfer cases.

The Court likewise dismissed this argument, noting that in White , the Court stated that the purpose of anti-retaliation laws is to prevent “those (and only those) employer actions serious enough to ‘dissuade[] a reasonable worker from making or supporting a charge of discrimination.” Insignificant harm, or harm that does not dissuade an employee from complaining of unlawful conduct, would not fall within the scope of anti-retaliation laws. In contrast, any injury caused by discrimination based on traits such as race and sex are covered by Title VII, and the anti-discrimination provision at issue does not “distinguish[] between significant and less significant harms.” As such, the Court reaffirmed that Title VII retaliation claims still require “significant harm.”

Finally, the City presented a policy argument, asserting that doing away with a significant-injury requirement – and thereby removing a barrier to litigation – would “swamp courts and employers” with insubstantial lawsuits. The Court disagreed, noting that discrimination plaintiffs must still show injury and discriminatory intent regardless of the degree of harm alleged. The Court concluded that there were multiple ways to dispose of meritless Title VII claims and, even if the City’s policy prediction materialized, it was not the Court’s job to revise the statute drafted by Congress for a more desirable result.

In the end, the Court held that plaintiff Muldrow needed only "to show that the transfer brought about some ‘disadvantageous’ change in an employment term or condition”: in other words, some specific harm or injury respecting her employment terms or conditions that “left her worse off,” even if not “significantly so." The lower court’s judgment therefore was vacated and remanded for further proceedings.

Concurrences

Justices Thomas, Alito, and Kavanaugh all concurred in the judgment but raised various concerns with the majority’s opinion.

First, Justices Alito and Thomas opined separately that the majority’s ruling would make no practical difference in how lower courts will apply the standard moving forward. Justice Alito saw no reason for switching out “terminology the Court approves [for] the terminology it doesn’t like.” Instead, Justice Alito noted that by definition, significance is inherent in the words “harm” and “injury,” and offered that he had “no idea” how the guidance supplied in the opinion would be applied by trial courts. Justice Thomas did not read the Court of Appeals’ decision as having imposed any heightened requirement of harm, and that minor employment changes, “even unpalatable or unwelcome ones, which cause no materially significant disadvantage,” do not rise to the level of an adverse employment action.

In response to Justice Thomas’s concurrence, the majority opinion expressed the belief that the standard being announced would have real-world impact, citing fact patterns from failed Title VII matters that would have been allowed to proceed under the Muldrow standard, including:

• An engineering technician assigned a new job site in a 14’ x 22’ wind tunnel;
• A shipping worker reassigned to only nighttime work; and
• A school principal forced into a non-school-based administrative role supervising fewer employees.

Justice Kavanaugh took issue with the Court’s new “some harm” requirement, and instead would have presumed that discrimination is itself the harm, with no separate showing of harm required separate and apart from the underlying act of discrimination. Justice Kavanaugh concluded, however, that the majority’s standard appeared to be a relatively low bar to meet and would “lead to the same result in 99 out of 100 discriminatory-transfer cases, if not in all 100” because additional harm of any sort would be easy to show.

Key takeaways for employers

The Supreme Court’s ruling makes Title VII claims less demanding for plaintiffs who allege discriminatory transfers. Even beyond transfers, and presumably, denial of transfers, the Court’s new standard will likely be invoked to more easily satisfy the adverse action requirement of Title VII and other anti-discrimination statutes with similar textual wording ( ie , prohibiting employers to “otherwise discriminate”).

A prima facie case of discrimination, as stated in the seminal decision of McDonnell Douglas v. Green , requires the plaintiff to (a) be a member of a protected class; (b) be qualified for the position at issue; (c) suffer an adverse employment action despite being qualified for the job; and (d) show circumstances giving rising to an inference of discrimination. In most jurisdictions to date, lateral job transfers, work reassignments, and the like generally have not been actionable under Title VII. Muldrow would seem to significantly relax (if not lower) the bar of satisfying the third prong of the above test and suggests that many more cases will move beyond summary judgment. But the final outcome will still depend on actual proof of discrimination as well as some actual harm or injury as a result of the lateral transfer (or work reassignment, etc.).

Muldrow also serves to remind employers of the importance of documenting the legitimate, non-discriminatory reasons for transfers, work reassignments and other any job-related actions. Documented proof of budgetary constraints, staffing shortages, mismatched skillsets, performance problems, behavior issues, or other legitimate bases for employment actions will become increasingly important to establish that those actions – whether they would previously have been characterized as “adverse” or not – are being made for reasons unrelated to race, sex, national origin, age, disability, or other legally protected characteristics.

For more information, please contact any of the authors or your DLA Piper relationship partner.

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What a judge’s gag order on Trump means in his hush money case

The judge overseeing Donald Trump’s New York hush money trial has clarified the gag order pertaining to the ex-president doesn’t prohibit him from testifying on his own behalf.

Donald Trump has been fined $9,000 for repeatedly violating a gag order that barred him from making public statements about witnesses, jurors and some others connected to his New York hush money case.

FILE - Former President Donald Trump speaks outside the courtroom in New York, April 30, 2024. A gag order bars him from making public comments on witnesses, jurors and some others connected to the case. The judge found that Trump repeatedly violated the order and he fined Trump $9,000 and warned that jail could follow if Trump keeps it up. The order doesn’t stop Trump from talking about the allegations against him or commenting on the judge or the elected top prosecutor. And it doesn’t stop him from testifying in court if he chooses. (Justin Lane/Pool Photo via AP, File)

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Former President Donald Trump returns to the courtroom following a break in his trial at Manhattan criminal court in New York, on Friday, May 3, 2024. (Charly Triballeau/Pool Photo via AP)

Former President Donald Trump speaks to media as he returns to his trial at the Manhattan Criminal Court, Friday, May 3, 2024, in New York. (Curtis Means/Pool Photo via AP)

Former President Donald Trump speaks to media as he returns to his trial at the Manhattan Criminal Court, Friday, May 3, 2024, in New York. (Charly Triballeau/Pool Photo via AP)

NEW YORK (AP) — Virtually every day of his hush money criminal trial , former President Donald Trump talks about how he can’t talk about the case.

A gag order bars Trump from commenting publicly on witnesses, jurors and some others connected to the matter. The New York judge already has found that Trump, the presumptive Republican nominee for president, repeatedly violated the order, fined him $9,000 and warning that jail could follow if he doesn’t comply.

What to know about Trump’s hush money trial:

• Trump faces jail threat over gag order. Follow today’s live updates .
• A guide to terms used in the Trump trial.
• Trump is the first ex-president on criminal trial. Here’s what to know about the hush money case.
• Trump is facing four criminal indictments, and a civil lawsuit. You can track all of the cases here.

But the order doesn’t stop Trump from talking about the allegations against him or commenting on the judge or the elected top prosecutor. And despite a recent Trump remark, it doesn’t stop him from testifying in court if he chooses .

As he fights the felony charges against him while running for president, Trump has at times stirred confusion about what he can and can’t do in the case. He has pleaded not guilty.

So what does the order do, what doesn’t it and where did it come from?

WHAT IS A GAG ORDER?

Generally speaking, a gag order is a judge’s directive prohibiting someone or people involved in a court case from publicly commenting about some or all aspects of it. In Trump’s case, it’s titled an “Order Restricting Extrajudicial Statements,” with “extrajudicial” meaning outside of court.

Gag orders, particularly in high-profile cases, are intended to prevent information presented outside a courtroom from affecting what happens inside.

Trump also is subject to a gag order in his federal criminal election interference case in Washington. That order limits what he can say about witnesses, lawyers in the case and court staff, though an appeals court freed him to speak about special counsel Jack Smith, who brought the case.

In his recent New York civil fraud trial , Trump was fined a total of $15,000 for comments he made about that judge’s law clerk after a gag order barred participants in the trial from “posting, emailing or speaking publicly” about the court’s staff.

The U.S. Supreme Court has acknowledged that gag orders can pit fair trial rights against free speech rights. The court has struck down some orders that barred the press from reporting on certain cases or court proceedings and rejected as too vague a Nevada court rule that limited what all lawyers could say out of court.

IS TRUMP FIGHTING THE GAG ORDER?

Yes. Before the trial, he asked a state appeals court to postpone the trial while he appeals the gag order , but the court refused. His appeal of the order itself is ongoing.

WHO IS COVERED BY THE GAG ORDER ON TRUMP?

Initially imposed March 26 , the gag order bars Trump from making or directing others to make public statements about any juror and about any “reasonably foreseeable” witness’ participation in the investigation or the trial.

It also bars any statements about lawyers in the case, court staffers, prosecution aides and relatives of all of the above, to the extent that the statements are intended to “materially interfere with, or to cause others to materially interfere with” their work on the case “or with the knowledge that such interference is likely to result.”

The order doesn’t apply to Judge Juan M. Merchan or to Manhattan District Attorney Alvin Bragg, whose office is bringing the case. It does apply to comments about their family members, however. Merchan added that provision on April 1 after Trump lashed out on social media at the judge’s daughter , a Democratic political consultant, and made a claim about her that was later repudiated by court officials.

Trump is also allowed to talk about his political opponents, as Merchan made clear on Thursday.

The order also doesn’t bar witnesses from commenting on Trump. Michael Cohen, Trump’s ex-lawyer and an expected witness, has routinely attacked his former boss, leading Trump to complain about not being able to respond in kind.

CAN TRUMP TESTIFY?

Yes. The U.S. Supreme Court has held that criminal defendants have a constitutional right to take the stand in their own defense — or not to .

There was some confusion after Trump said Thursday that because of the gag order, he was “not allowed to testify.” In context, it appeared he was actually referring to his ability to respond to a reporter’s court-hallway question about a witness’ testimony that afternoon.

Trump clarified to reporters Friday that he understood the order wasn’t a bar on testifying. Merchan emphasized the same in court.

“I want to stress, Mr. Trump, you have an absolute right to testify at trial, if that’s what you decide to do after consultation with your attorneys,” Merchan said.

WHY DID TRUMP GET FINED? WHAT CAN’T HE SAY?

Merchan found that Trump violated the gag order with social media posts that laid into Cohen. Among the offending posts: one that asked whether “disgraced attorney and felon Michael Cohen been prosecuted for LYING,” a repost of a New York Post article that described Cohen as a “serial perjurer,” and a Trump post referring to Fox News host Jesse Watters’ claim that liberal activists were lying to infiltrate the jury.

Merchan noted that Trump’s comment on the Watters segment misstated what the host had actually said, making the comment “the words of Defendant himself.”

On the other hand, Merchan declined to sanction Trump for an April 10 post that referred to Cohen and Stormy Daniels, the porn performer who got a $130,000 hush money payment that’s at the heart of the case, as “sleaze bags.”

Trump contended that he was responding to previous comments by Cohen, and the judge said the back-and-forth gave him pause as to whether that post met the bar for a violation.

COULD TRUMP REALLY GO TO TO JAIL OVER THE GAG ORDER?

When Merchan fined Trump $1,000 apiece for nine violations — the maximum fine allowed by law — he wrote that “jail may be a necessary punishment” for some wealthy defendants who won’t be deterred by such a sum.

Merchan added that he “will not tolerate continued willful violations” of the gag order and that, if “necessary and appropriate,” he “will impose an incarceratory punishment,” meaning jail.

It’s unclear what would rise to the level of “necessary and appropriate.”

Defense lawyer Todd Blanche indicated in court Friday that he plans to appeal the judge’s finding this past week that Trump violated the gag order.

Prosecutors have asked Merchan to hold Trump in contempt again and fine him $1,000 for each of four alleged violations from April 22-25. But the prosecution isn’t asking for the former president to be locked up over those comments because they happened before Merchan’s jail warning and because “we’d prefer to minimize disruption to this proceeding,” prosecutor Christopher Conroy said.

Supreme Court to rule on city's homeless encampment ban. What will it mean for Worcester?

WORCESTER — With the U.S. Supreme Court expected to make a decision this summer over whether local governments may  ticket homeless people sleeping on public property , some Worcester area service providers for the homeless fear an outcome that could further criminalize homelessness.

"We're fixing the wrong problem," Leah Bradley, executive director of the Central Massachusetts Housing Alliance, said. "Folks are homeless because there's not enough housing at a price that they can afford. They're really just surviving."

The case at hand, The City of Grants Pass v. Johnson, centers on the city of Grants Pass, Oregon. The city argues that a U.S. Court of Appeals for the 9th Circuit ruling that cities could not issue tickets to homeless people who were using blankets, pillows or means to protect themselves from the elements hamstrung their ability to respond to safety issues in encampments.

More: 'No place to go': Supreme Court debates cities' leeway to crack down on homeless camps

Homeless advocates have argued the U.S. Constitution's Eighth Amendment protects people from being punished based on a personal status outside their control — like being homeless. They fear that if Grants Pass wins the case, homeless residents could face punishment for using as little as one blanket outside.

The Supreme Court heard the case April 22. The majority of justices appeared to side with Grants Pass in giving local governments discretion — and limiting the federal courts involvement in local decisions.

However, some justices showed sensitivity to the plight of homeless residents and several suggested limiting the scope of any decision related to the case.

A decision is expected by the end of June.

'Criminalization of homelessness'

Danielle LaRiviere, director of Worcester Health Care for the Homeless at Family Health Center of Worcester, said there has been a move toward further criminalizing homelessness in the country.

"It's alarming the move toward criminalization of homelessness," LaRiviere said.

She said the City of Grants Pass passed several ordinances that would strictly impact homeless people's basic survival needs in the city, referencing one that punishes residents for sleeping outside with a blanket.

"It just really feels like it's a punishment for people who are experiencing homelessness when homelessness is a very systematic issue that needs to be addressed," LaRiviere said.

LaRiviere added that such policies further add to stigma around homeless people in the general public.

While no area in Worcester has seen a concentration of homeless people as large and infamous as in Boston's intersection of Melnea Cass Boulevard and Massachusetts Avenue, or in San Francisco's Tenderloin neighborhood, the Central Massachusetts Housing Alliance has reported a rising homeless population in the city as housing costs rise.

The city saw a 70% increase in homeless individuals from 2021 to 2023. In the peak month of March 2023, 810 people were recorded as experiencing homelessness throughout the month.

While a 60-bed emergency winter shelter at the former RMV building at Main Street remains in use as a shelter, providers and city officials have acknowledged a gap in needed beds still exists.

City declines to comment on Grants Pass case

A spokesperson for the City of Worcester said the city would not comment on any hypothetical verdict in the Grants Pass case, and the city did not make any representative available for an interview.

According to the spokesperson, the only rule the city has on the books related to pitching encampments and sleeping in public spaces is a fine for erecting a booth, tent, sleeping tent, sleeping bag, inflatable rides, stall, camper, motorhome or other sleeping structure in any park or playground without a permit from Parks & Recreation.

The rule also forbids use of a tent unless it is stake-less or without the written permission of Parks & Recreation. Violators can face a noncriminal disposition fine. The fine system is structured as follows: $25 for a first offense, $50 for a second offense and $100 for third and subsequent offenses.

Could Supreme Court ruling reverberate elsewhere in Central Mass.?

LaRiviere said there is existing case law in Massachusetts that grants homeless people protections. A verdict in the Grants Pass case could reverse these established precedents in the state.

The Central Massachusetts Housing Alliance fears that some municipalities in the region could implement policies similar to the one in Grants Pass if the Supreme Court sides with that city.

"Folks in those communities will most likely go to the communities that don't have the policies, so it's going to make our work really challenging where we're trying to keep folks in the community they live in," Bradley said.

Keeping homeless residents in their home community allows them more access to their support systems and tends to lead to people experiencing homelessness for shorter durations, Bradley said.

Allowing such policies like the disputed Grants Pass fines could lead to homeless people placing themselves in unsafe and unsanitary conditions, Bradley said. She added that homeless advocates will be tasked with explaining the risks associated with such policies.

"The impacts on the individuals who are experiencing homelessness are far greater than what I think the community that brought the lawsuit and the Supreme Court really recognize," Bradley said.

LaRiviere said it is wrong to think more enforcement of sleeping outside will lead to homeless people seeking shelter or housing. Laws that could either directly add to the criminal records of homeless people or jail them after they are unable to pay fines could make it harder to find them housing, she said.

"It's a lot more expensive to send people to jail for their homelessness than it is to house them," LaRiviere said.

As head of a provider that offers medical services to the homeless, LaRiviere said it would be harder to connect with patients if they go so deep into places such as wooded areas that they are hard to locate.

Bradley said the idea that homeless people are a public safety issue is more of a "perception" than one borne out by studies. She said municipalities should gear their policies more toward providing housing for homeless people and building more available units. Bradley pointed to policies such as inclusionary zoning and the construction of accessory dwelling units.

The city's deficit of shelter beds to meet the needs of the homeless population — including shelters that are spaces for youths, women and members of the LGBTQ+ community — is an ongoing issue that LaRiviere acknowledges is complex.

In addition, LaRiviere said, having more services for addiction treatment and programs to prevent homelessness would help in Worcester.

Worcester City Council has debated encampments

Last year, the Worcester City Council was hesitant to adopt a request for a moratorium on encampment sweeps or to find a site to support people living in encampments while the city works to expand shelter beds.

Encampment sweeps, also known as clearings, have been defined as a forced removal of encampments where homeless people have gathered. Advocates say people who are homeless are often removed from the area and their possessions lost as a result of so-called sweeps.

The proposed moratorium faced opposition from the Worcester Regional Chamber of Commerce. Several councilors also said they worried about the impact encampments could have on resident quality of life and safety risks coming from encampments.

In February, the City Council unanimously voted to end consideration of a petition from homeless resident and advocate Samantha Olney asking that the city allow the homeless to temporarily set up tents in public spaces.

While councilors said the city needed to develop a solution for the growing homeless population in Worcester, several said the city needed to have the ability to intervene when residents call to complain about an encampment's impact on their property or quality of life.

Homeless advocates across the country, such as the National Health Care for the Homeless Council , have maintained that while residents sleeping in tents is not ideal, encampment sweeps are detrimental to addressing homelessness.

"If they have to continually move from one place to the other, they're focused on where their next location is going to be and not on finding housing and getting benefits and doing the things that they want to do in order to get themselves closer to a housing option," Bradley said.

Councilors did vote to request that Olney be invited to a group convened by the city to discuss homelessness.

In March, a City Council petition from Olney requesting "a sanctioned area for unhoused individuals to camp safely, free from prejudice and prosecution," was voted down in a 6-5 vote.

The 'Challengers' ending explained — and why its screenwriter thinks that question you're asking yourself is irrelevant

• Warning: spoilers ahead for "Challengers," which is showing now in theaters.
• "Challengers" ends without showing who wins the match it builds up to.
• The film's screenwriter and director said that the winner of the match is irrelevant to the story.

The ending of the tennis movie " Challengers " has left many viewers questioning who wins the final match, but the film's director and screenwriter said it is not about a singular winner.

The new film stars Zendaya , Mike Faist, and Josh O'Connor as three tennis players entangled in a messy, 13-year-long throuple . The movie centers on a Challenger tournament final between famous tennis star Art Donaldson (Faist) and his former friend Patrick Zweig (O'Connor).

Patrick must win to play at the US Open after 13 years of failure, while Art is trying to prove he is better than Patrick to save his marriage to Tashi (Zendaya), who has become bored of her husband's lack of drive.

During a tiebreak in the final scene, Patrick and Art enter a rally, hitting the ball at each other instead of trying to score. As they get closer to the net, Patrick hits the ball upwards, forcing Art to jump up and volley it over the net.

The camera never shows where the ball lands, instead focusing on the two players as Art falls in Patrick's embrace. The camera then moves to Tashi, who is sitting in the crowd, as she screams out "come on!" before the movie ends.

The movie made $15 million in its first weekend, and has created a buzz similar to 2023's " Saltburn ." Both films partly enticed audiences with the promise of taboo sex scenes, while their ambiguous endings and complex characters kept them talking on social media long after watching.

Here's what this final scene could mean and what the director and screenwriter have said about it.

Art broke down on the tennis court because of a secret signal from Patrick.

In the final scene, Art is one point away from winning the competition. However, after Patrick places his tennis ball in the throat of his racket, imitating Art's signature serve, the superstar player swears audibly and loses three points by not returning Patrick's shot, leading to a tie-break.

This seems completely out of character for Art, but there is a reason for the sudden loss of composure.

Ahead of the game, Tashi tells Art that she will leave him if he loses the match against Patrick, but later meets Patrick to ask him to lose the game. Tashi also sleeps with Patrick without telling her husband.

When Patrick imitates Art's signature serve in the match, it is a callback to an earlier scene set 12 years before the final game. In this scene, Patrick is dating Tashi, and Art is trying to find information about their relationship to break them up. Art eventually asks Patrick to copy his serving style if he has had sex with Tashi, and it becomes a secret signal between the pair.

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Repeating the signal at this crucial moment was Patrick's way of coming clean to Art about his wife's infidelity.

Some fans have interpreted this moment as Patrick trying to make Art lose his composure, but others have theorized that Patrick is goading Art to get him to play better and win the match with his own skill.

The "Challengers" director and screenwriter said it doesn't matter who won the final match.

The movie leaves the question of who won the tennis match open-ended as the audience never sees what happens after Art volleys the ball.

Art could have won the point and then finally beaten Patrick after years. Or the pair may abandon the match entirely and rebuild their bond as friends or lovers.

David Hanzes, an umpire for the US Tennis Association's Eastern Division, told Slate on Friday that the point would likely go to Patrick because players cannot hit the ball from the other side of the court or touch the net. Art makes these two mistakes on his final volley.

However, despite the movie focusing on one tennis match, the director, Luca Guadagnino, and screenwriter Justin Kuritzkes said the final score is unimportant.

Kuritzkes told Today on Friday that he thought the story was over once all the main characters were open with each other, which only occurs when Patrick reveals Tashi's infidelity.

"In many ways, this is a movie about people who can only really speak their hearts on the tennis court, through action, through playing," Kuritzkes said. "I think by the end for me, they're playing all of a sudden. Art and Patrick are playing a real point, and somehow Tashi is playing, too. So the movie's over."

He added: "The question of 'Who wins the match?' just felt so totally irrelevant."

Guadagnino told Entertainment Weekly on Friday that the three lead characters spend the movie trying to recreate their first moment together, their three-way kiss in a hotel room, and can only recreate it through the rivalry on the court.

"I needed to get this very, very visually amped up and really immersed for the audience to understand how much it meant for them not to win over the other, but to be back together, all of them," he said.

Art and Patrick seem to have fixed their friendship at the end

Art and Patrick's embrace in the final moment heavily implies a restoration of their friendship.

O'Connor , who plays Patrick, told Entertainment Weekly that the final moment is meant to show that the three lead characters have found each other again.

"They've been all searching for a way and getting it terribly wrong, searching for a way to satisfy that need, that hunger for each other. And they're all trying to find their way in different ways," he said, adding that he thinks Patrick's infidelity revelation pushes Art to play in a way that satisfies all three characters.

Tashi initially seems angry when she screams in the final scene, but it may be a shout of triumph. Throughout the movie, she chases a specific sensation where two competitors form a subconscious bond by playing tennis.

When she loses her ability to play the sport due to an injury, she tries to manipulate Art and Patrick to play tennis her way so she can experience that thrill again. Tashi only succeeds at the end of the movie. Tashi's scream is likely a callback to an earlier scene when a younger version of the character screams after defeating her opponent in a tournament.

And all three characters seem to win at the end. Art, who cares more about the people he loves than tennis, reconnects with Patrick. Patrick gets to prove his talent to the world against one of the best players.

And in her words, Tashi finally gets to see "some fucking good tennis."

Watch: How AI technology could change the way we watch sports according to IBM's Jonathan Adashek

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A state judge ordered that a controversial proposal on abortion rights be removed from the November ballot — delivering a blow to New York Democrats using the issue as a key campaign strategy.

A judge in Livingston County ruled Tuesday that the legislators had failed to follow the proper constitutional steps to get the measure on the November ballot.

Gov. Kathy Hochul and other Dem lawmakers around the state have been pushing the measure that would enshrine abortion rights in the state Constitution — despite the Empire State already having one of the strongest abortion access laws in the country.

The move was part of the political strategists’ efforts to boost turnout in key swing districts in the state as the GOP’s influence grows in areas of New York, including Long Island.

Dems have used the issue as a rallying cry for their base in the wake of the  US Supreme Court  overturning Roe v. Wade in 2022, which puts the power back in local lawmakers’ hands.

Critics railed against the proposed change last year , claiming the measure would limit the rights of parents when minors look to undergo gender reassignment surgery.

Assemblywoman Majorie Byrnes (R-Livingston), who brought the lawsuit in her Western New York district, said she was pleased with the court ruling.

“While the state is controlled by one party, our constitution and our laws must be honored. I am pleased with Justice Doyle’s decision which upholds the plain meaning and integrity of the constitution of our state,” Byrnes told the Post in a statement.

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Judge fines Trump after 10th contempt of court as former president is told further violations could mean jail

T he judge in  Donald Trump 's criminal trial has fined him $1,000 and held him in contempt of court for a 10th time while warning him continued violations could land him in jail.

Justice Juan Merchan said the nine $1,000 fines he had imposed on Trump for breaching a gag order banning him from making comments on jurors had not proved to be deterrent.

Justice Merchan said he considered jail time “truly the last resort” as he did not want to further disrupt to the trial, which is concerned with alleged payments made by Trump over to try to ‘hush up’ claims over sexual behaviour.

He also pointed to the potential upheaval to the political process ahead on an election as well as the the logistical headache of imprisoning an ex-president with a lifetime Secret Service detail.

But he said Trump’s “continued, wilful” violations of the gag order amounted to a “direct attack on the rule of law.”

He told the court: “I do not want to impose a jail sanction and have done everything I can to avoid doing so. But I will if necessary,”

New York law allows fines of up to $1,000 or jail time of up to 30 days for violating a court-imposed gag order.

Merchan imposed a $1,000 fine on Monday for an April 22 broadcast interview in which the Republican former president said: "That jury was picked so fast - 95% Democrats. The area's mostly all Democrat."

He found that other statements flagged by prosecutors that mentioned witnesses Michael Cohen and David Pecker did not violate the order.

Last week Merchan fined Trump $9,000 for nine social media posts that he ruled had violated the gag order.

Merchan spoke while Trump sat at the defendant's table in the New York courtroom in the first criminal trial of a former US president.

Trump's criminal hush money trial, now in its 12th day, has featured testimony from a top aide and a former tabloid publisher about efforts during his first presidential bid to avert stories of unflattering sexual behaviour being made public.

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