Sometimes the U.S. Supreme Court affects the state of the law by not doing something.  This occurred recently when the Supreme Court did not review a Seventh Circuit case entitled, United Airlines v. EEOC, Dkt. No. 12-707 (U.S. May 28, 2013), regarding mandatory reassignment under the Americans with Disabilities Act (ADA).

In EEOC v. United Airlines, 693 F.3d 760 (7th Cir. 2012), the Seventh Circuit held that when a disabled employee is unable to perform the essential function of a job with or without reasonable accommodation, the employer must reassign the employee to a vacant position for which he or she is qualified, even if there is a better candidate, absent undue hardship.  The Court’s holding reversed the law of the Seventh Circuit and adopted the position asserted by the EEOC.  The Supreme Court’s subsequent decision not to review the case essentially keeps an element of uncertainty regarding the meaning of “reassignment” as a reasonable accommodation under the ADA because other federal circuits have held that the ADA does not mandate reassignment under such circumstances.

For Minnesota employers relying on the ADA case law of the Eighth Circuit, the current governing case is Huber v. Wal-Mart, 486 F.3d 480 (8th Cir. 2006), which articulated a position different from the current Seventh Circuit position in United Airlines.  In Huber, the Eighth Circuit adopted the rule that the “ADA is not an affirmative action statute” and that an employer’s “best qualified” selection policy for vacant positions is not superseded by a disabled employee’s ADA reassignment rights.  In other words, reassignment is not mandated if a better qualified candidate is available.  But the Eighth Circuit’s rule was largely based on precedent from the Seventh Circuit, which is now reversed by United Airlines.  Thus, the Eighth Circuit’s Huber decision may have an uncertain future.

Takeaway:  Confusing and uncertain?  Yes.  The mandatory reassignment rule, adopted in United Airlines, is arguably becoming the prevailing view in the federal courts and is the position urged by the EEOC, but it is not the law for Minnesota employers who can, at least for now, look to the Huber case.  By denying review of the United Airlines case, the U.S. Supreme Court has allowed this uncertainty to remain by not settling the issue nationwide.  Uncertainty adds a necessary element of caution to any reassignment decision involving an interpretation of ADA rights.  An employer facing an ADA reassignment problem should consult with legal counsel for assistance in navigating such uncertain seas.