I hope everybody had a great Fourth of July weekend.

Today’s blog entry deals with a couple of different questions. First, in a situation where a person can no longer do the essential functions of the job with or without reasonable accommodations, is reassignment mandatory or is it subject to open competition? Second, what kind of notice does the employer need in order to activate the reassignment process, assuming it is mandatory. The case of the day is Equal Employment Opportunity Commission v. William Beaumont Hospital, here, decided in the process of considering motions for summary judgment on July 2, 2025, by the United States District Court for the Eastern District of Michigan. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning concerning the sufficiency of the notice necessary to activate the mandatory reassignment process; whether reassignment for a person who can no longer do the essential functions of the job with or without reasonable accommodation is mandatory; and thoughts/takeaways. Of course, the reader is free to read any or all of the categories.

I

Facts

The facts are actually quite involved but can be condensed quite a bit. Megan Shefke (for ease of understanding, we will refer to her as plaintiff even though the EEOC is technically the plaintiff), has Fabry disease, a condition causing her body to make too little of an enzyme to keep a fattie substance-GL-3, from building up in her body and causing problems with her heart. As a result, she has pain in her hands and feet that varies with temperature and activity, extreme fatigue, and enlargement of the left ventricle of her heart caused by the buildup of GL-3. She also suffers from pain flares leaving her unable to work at all. The condition can only be treated and manage as it is progressive and worsens over time. Rest and recuperation are necessary for managing her symptoms. She does take medication that slows but does not reverse the progression of her disease. Things ultimately got to the point where she could no longer do the essential functions of the job with or without reasonable accommodations. She then inquired about the possibility of working elsewhere at the hospital. She used the terms in her email subject line “ADA accommodation,” or “Re: ADA accommodations.” She also specifically asked to be placed in an open position she was qualified for as she claimed that was a fair expectation under the ADA. Subsequently she applied to several other part-time nursing positions within the hospital system, but did not inform anyone in HR or in Talent Acquisition that she had applied for those positions. Subsequently, plaintiff resigned from her position in order to take a job with another company after she had been rejected from all the jobs she had applied to. Finally, for each position she applied to, the hiring manager was not made aware that plaintiff was seeking the position as an accommodation for her disability.

II

Court’s Reasoning Concerning the Sufficiency of the Notice Necessary to Activate the Mandatory Reassignment Process, Assuming Reassignment Is Mandatory in the First Place

1. In order to show disability discrimination in the reassignment context, a plaintiff must show that she either requested and was denied, reassignment to a position for which she was otherwise qualified or that she requested some specific assistance in identifying jobs for which she could qualify.
2. If an employee request assistance in identifying vacant positions-even if the request is as generic as “I want to keep working for you-do you have any suggestions?,“ then the employer has a duty under the ADA to ascertain whether the employer has some job that the employee might be able to fill.
3. The employee is not required to use magic words such as “accommodation,” and “disability,” rather, the question is whether a factfinder could infer that the interaction constituted a request for an accommodation.
4. In the event of § II(2), (3) of this blog entry, overcoming summary judgment means that the plaintiff generally must identify the specific job she seeks and demonstrate that she is qualified for that position.
5. Once an employee requests an accommodation, the employer has a duty to engage in the interactive process.
6. Once the employee establishes a prima facie showing that she proposed a reasonable accommodation, the employer had the burden of showing how the accommodation would cause an undue hardship.
7. Failing to assist an employee in seeking an accommodation may suggest bad faith.
8. Plenty of published Sixth Circuit authority indicates that the ADA generally imposes an obligation on the employer and not on the employee to identify vacant roles once a request for transfer as an accommodation is made.
9. Sixth Circuit case law allows an employer to shift that responsibility to look at a broad range of jobs onto the employee if it has a legitimate, non-discriminatory administrative policy requiring an employee to apply for transfer to a new position within their restrictions. In that situation, an employer need not look into the suitability of jobs that the employee does not apply to.
10. The proposition that an employer must search for applicable vacant positions upon an employee’s request for transfer comes from cases outside of the Sixth Circuit.
11. If an employee generically requests only (emphasis in opinion), to be reassigned to a vacant position, then an employer can legitimately, in good faith and as part of the interactive process, ask the employee to put forward the first vacant position they wish to be considered for by using an internal job listing service in order to identify job that they believe they are qualified for. However, if an employee specifically requests help identifying (emphasis in opinion), vacant positions, then an employer must in good faith do at least some investigation into whether possible vacancies exist and propose those to the employee as part of the interactive process, even if they otherwise require applicants to go out and apply. Refusing to follow up on that request may constitute a breakdown of the interactive process for which the employer bears responsibility. It also creates an independent path to liability for a plaintiff that does not necessarily depend on what happened in regards to their request for a transfer more generally.
12. If an employee specifically requests help in identifying vacant positions, the employer is obligated to take three steps: 1) identify the full range of alternative positions for which the individual satisfies the employer’s legitimate nondiscriminatory prerequisites; 2) determine whether the employee’s own knowledge, skills, and abilities enable the employee to perform the essential functions of any of those alternative positions with or without reasonable accommodation; and 3) consider transferring the employee to any of those other jobs, including those that would represent a demotion. The facts in this case are unclear as to whether the employer had the right to shift the responsibility onto the employee and a jury must decide that.
13. While a plaintiff does have a burden as a matter of law to identify specific positions open at the time and that the employer could have transferred them to as an accommodation, that burden arises at the summary judgment (emphasis in opinion), stage, and does not necessarily translate to a strict requirement that a plaintiff identify them for the employer at the time of the request for accommodation (emphasis in opinion), itself (when that burden is merely part of the interactive process).
14. A Sixth Circuit opinion stating that a plaintiff has the evidentiary burden of pointing to a specific vacant position for which she was qualified, which she actually requested, and which was not provided to her, is dicta because that particular fact was not actually at issue in that case. It is also not the facts of this case as the plaintiff did apply for positions she was qualified for and identified particular positions that she actually sought at summary judgment. She also did not necessarily have to bring her application to Beaumont’s attention when they told her that applying was the best way to notify them of her interest.

III

Court’s Discussion of Whether Reassignment for A Person Who Can No Longer Do The Essential Functions of The Job With Or Without Reasonable Accommodation Is Mandatory

1. The courts are split on whether a reassignment is mandatory when a person can no longer do the essential functions of the job they are currently in with or without reasonable accommodations, but can do the essential functions of other jobs with or without reasonable accommodation within that company. The Seventh, 10^th, and District of Columbia Circuits land on the side of mandatory reassignment. The Third Circuit in an opinion not directly on point has indicated that it leans that way in an opinion by then Judge Alito. On the other hand, the Fourth, Fifth, Eighth, and 11^th Circuits go with the competitive bidding approach. The Sixth Circuit has not directly spoken on the issue.
2. The trouble with the line of cases taking the competitive bidding approach is that they ignore the statutory text and render reassignment meaningless if all that an employer has to do is to allow the employee to apply to vacant roles never have to hire them.
3. In a footnote, the court said that the duty to reassign does not extend to positions that are not vacant, that the applicant is not qualified for, or if it is not a reasonable accommodation or represents an undue hardship. Also, the employer has the authority to pick and choose which appropriate vacant job is to offer to the otherwise qualified employee with a disability.
4. The ADA per 42 U.S.C. §12111(9), requires employers to make reasonable accommodations, which can include reassignment to a vacant position.
5. While it is true that an employee’s application for transfer will necessarily conflict with the interest of other applicants for that same role, that conflict is only relevant if there is some pre-existing, pre-vested right of other employees at issue, which is not the case here.
6. Mandatory reassignment is reasonable in the run of cases because it generally applies when reassignment is the only remaining option (emphasis in opinion), for an employee with a disability.
7. Reasonable accommodation is a reasonable accommodation of last resort and is only required after it has been determined that: 1) there are no effective accommodations enabling the employee to perform the essential functions of their current position; or 2) all other reasonable accommodation impose an undue hardship.
8. Preferences are sometimes necessary to achieve the ADA’s basic equal opportunity goal. If that was not the case, then the protection of the ADA would be a paper shield. That is, an employer could, for example, tell an employee to apply to transfer to vacant positions, and then decide for each position to go with another candidate. They would then be claiming that reassignment was an option in theory, but denying it in practice.
9. In the same way that neutral office assignment rules might be required to occasionally yield to the covered employee requiring a ground-floor office, so too must generally neutral hiring considerations occasionally yield to a covered employee left with no option but to transfer into a vacant position accommodating their needs.
10. It is not the court’s role to decide as a matter of policy whether providing preferential treatment in reassignment to vacant positions is unfair to other applicants in a narrow band of cases were reassignment has become the only available option available to a current employee as that choice is written into the ADA itself.
11. In a footnote, the court notes that Congress did not reserve special status for healthcare industry when it comes to reasonable accommodation obligations.
12. While on the face of things, the opportunity to apply on equal terms with other candidate may look non-discriminatory, it is not a reasonable accommodation (emphasis in opinion), for the covered employee by the ADA’s own terms.
13. Beaumont Hospital was not required to assign the plaintiff to each and every one of the positions she applied for, instead they just had to pick one of them and they were free to choose whichever one they liked.
14. In a footnote, the court noted that the evidence revealed that the hospital’s most qualified hiring policy was already subject to exceptions, so an ADA exception would be only another exception among several.
15. Viewing the facts in a way most favorable to the plaintiff, the hospital’s most qualified hire system for transfer application resulted multiple times in the hiring of another external candidate over the plaintiff, who was an internal qualified transfer requesting a transfer as an accommodation. Assuming plaintiff can prove the remaining elements of her claim, that results in an ADA violation.
16. Plaintiff’s eventual reassignment without the hospital’s help, months after they did not hire her for position she applied to and was qualified for, does not speak to whether the hospital fulfilled its duties under the ADA as to the positions she identified.
17. The rest of the opinion goes into detail on each of the specific jobs that plaintiff applied to in light of the principles laid out in this blog entry. The end result of that analysis is the judge found numerous genuine issues of material fact existed and set the case for trial.
18. Early in the opinion, the court says that the plaintiff was undoubtedly a person with a disability and also otherwise qualified for the positions she applied to and granted summary judgment to the EEOC on those points.

IV

Thoughts/Takeaways

1. It will be very interesting to see how this case plays out on appeal when that point comes. My problem with the court’s reasoning is to activate the mandatory reassignment process under this opinion, it focuses on form over substance. That is, a person has to make a request explicitly requesting assistance in identifying jobs for which he could qualify as one of the ways to activate the mandatory reassignment process. However, as we have discussed numerous times, magic words are not required to activate the interactive process for getting reasonable accommodations. Even the district judge in this case, admitted that magic words are not required.
2. Absolutely impossible to say which way the United States Supreme Court will land on with respect to mandatory reassignment. The Supreme Court will certainly consider the issue as the circuit courts are split on the question. For the reasons discussed in this section of the blog entry, it will not surprise me to see if the circuit courts also wind up splitting on the question of the sufficiency of notice needed to activate a mandatory reassignment process.
3. Mandatory reassignment is not the harder issue (it is either required by the ADA or it isn’t), but rather the notice needed to activate the mandatory reassignment process is the more difficult one. I struggle to understand why magic words are not required for outside the mandatory reassignment process when it comes to reasonable accommodation for an employee with a disability, but they are, or at least something close to that, required with respect to activating the mandatory reassignment process, at least according to this decision. It will be interesting to see whether other circuits adopt the view that magic words are not required when it comes to asking for a reasonable accommodation except in the case of activating the mandatory reassignment process.
4. If you are in the Southern District of Michigan and are an employee unable to do the essential functions of their job with or without reasonable accommodation, use the magic words of needing help identifying positions in order to activate the mandatory reassignment process. That is, magic words are not required except when they are.
5. Preventive law demands employers to act on the principle that magic words not be required for seeking reasonable accommodations in general AND for seeking the reasonable accommodation of reassignment.
6. Mandatory reassignment as a reasonable accommodation is a last resort.
7. While a plaintiff does have the burden to identify specific positions open at the time and that the employer could have transferred them to as an accommodation, that burden arises at the summary judgment (emphasis in opinion), stage, and does not necessarily translate to a strict requirement that a plaintiff identify them for the employer at the time of the request for accommodation itself when that burden is merely part of the interactive process.
8. Preventive law demands and employer work with the employee to find suitable positions they are a qualified person with a disability for, regardless of whether the employer’s particular circuit takes the mandatory reassignment approach or the competitive bidding approach.