In the case of EEOC v. United Airlines, Inc., United agreed to pay more than $1 million to settle a lawsuit regarding reasonable accommodation issues for disabled employees. (N.D. Ill., June 11, 2015). The lawsuit focused on to what extent an employer is required to assign a disabled employee to a vacant position as a form of reasonable accommodation. United permitted the reassignment of a disabled employee, but stated that reassignment must be on a competitive basis. That is, in order for the disabled employee to move into the vacancy, the employee must apply for it and be considered with any other employee. According to United’s transfer policy, the “disabled employee [must] be  the best qualified individual, or tied in qualifications with the best qualified individual, to receive priority consideration for placement in a vacant position needed as an accommodation.” The district court dismissed the EEOC’s lawsuit, and the Seventh Circuit reversed its precedent in holding that assignment to a vacant position as a form of accommodation and may not be on a competitive basis.

According to the EEOC, “as the Seventh Circuit’s decision highlights, requiring the employee to compete for positions fall short of the ADA’s requirements. Employers should take note: when all other accommodations fail, consider whether your employee can fill a vacant position for which he or she is qualified.” This decision is consistent with the appellate courts of the Tenth Circuit and District of Columbia, but conflicts with the Eighth Circuit Court of Appeals, which holds that the ADA does not require preferential treatment to fill a vacancy as a form of accommodation.

Under the ADA, transfer to a vacant position for which the employee is qualified is a potential form of accommodation, even if that position pays less. Until recently, it was generally agreed that the employer still had the right to select the most qualified applicant for the position, even if the applicant pool included an internal candidate who could no longer perform his current position because of a disability. That premise is now in question as more courts agree with the EEOC that assignment to a vacant position does not require the employee to compete for that assignment, only that he hold the minimum qualifications.