We posted previously about the Seventh Circuit holding in EEOC v. United Airlines that, in deciding whether a disabled employee who cannot perform the essential functions of his or her position is entitled to a vacant position as an accommodation under the ADA, the employer must disregard its policy of awarding positions to the best-qualified candidate.  The “best-qualified” policy relates to the question of whether transfer to a vacant position, the ADA’s “accommodation of last resort,” requires an employer to provide the disabled employee a “mandatory preference” or “an opportunity to compete” for that position.

The Seventh Circuit had remanded the case and directed the district court to apply the “reasonable accommodation” analysis from U.S. Airways, Inc.  v. Barnett , i.e., whether mandatory reassignment would be reasonable “in the run of cases” and, if so, whether any considerations in this case would make mandatory reassignment an undue hardship. The court stayed its remand to allow United Airlines to seek review by the United States Supreme Court.

On December 6, 2012, United Airlines asked the Supreme Court to hear its appeal. United Airlines said the case “raises the important and recurring issue whether the “preferences” provided for in the ADA (i) level the playing field for disabled employees [i.e., provide the opportunity to compete] or (ii) go significantly further and require affirmative action such that, absent undue hardship, employers who have an established, bona fide policy to fill positions with the best-qualified individual ordinarily must instead fill that position by reassigning a minimally qualified disabled employee who is not the most-qualified individual.”

In 2008, the Supreme Court had agreed to resolve this issue by reviewing the Eighth Circuit’s decision in Huber v. Wal-Mart but dismissed the case as moot when the parties settled their dispute.