The 7th Circuit Changes Its Position on Assigning Employees With Disabilities to Vacant Positions

Author: Melissa Burdorf, XpertHR Legal Editor

Employers in the 7th Circuit (Illinois, Wisconsin and Indiana) should now rethink the way they select employees for job vacancies as a result of a new decision that interprets this issue under the ADA. In EEOC v. United Airlines, Inc., +2012 U.S. App. LEXIS 18804 (7th Cir. Ill. Sept. 7, 2012), the court looked at whether an employer has a duty under the ADA to assign an employee who is unable to perform the essential functions of his or her job due to a disability to a vacant position (as an accommodation) over a more qualified candidate for the job. The 7th Circuit joined DC and the 10th Circuit and determined that in most situations employers will need to choose the employee with a disability.

In this case, United Airlines had a policy of selecting the most qualified candidates for vacant job positions. The process was "competitive". Although employees with disabilities received preferential treatment when seeking reassignment, they were not promised reassignment if a better qualified candidate without a disability applied for the vacancy. For the past 10 years, the 7th Circuit held that such a policy was in compliance with the ADA.

Now, the court has switched its viewpoint. For employers in the 7th Circuit, this switch means that absent a seniority system controlling the assignment of jobs (see Special Circumstances May Require Altering the Rules of an Established Seniority System as an ADA Reasonable Accommodation), merely providing preferential treatment to employees with disabilities is no longer acceptable. Rather, an employer must pass over a more qualified individual and, as a reasonable accommodation, assign an employee with a disability to a vacant job, if the employee with a disability meets the minimum qualifications for the job unless, the employer can show that it would be an undue hardship to do so. Thus, an employee with a disability will not be compelled to compete for a vacant position if the employee is minimally qualified and needs the job as an accommodation in order to keep working.

The federal courts are not unanimously in agreement on this issue. Unless the Supreme Court addresses it, employers will need to be guided by the law in the state in which their business operates. For employers in DC, and the 7th and 10th Circuits, this means that selecting the superior candidate may no longer be the soundest employer decision.

Additional Resources

Employee Management > Disabilities (ADA)

How to Engage in and Properly Document the Interactive Process Under the ADA

EEOC Press Release: Seventh Circuit Revives EEOC Disability Discrimination Lawsuit