Reasonable accommodation. Those are words that can keep employers up at night. Often, it’s not clear what is a mandatory reasonable accommodation for an employee with a disability or what is an accommodation that imposes an undue hardship on the employer.

A recent Seventh Circuit opinion, EEOC v. United Airlines, Inc., No. 11-1774 (7th Cir. Sept. 7 2012), reexamined whether transferring an employee with a disability to a vacant position is a required reasonable accommodation under the Americans with Disabilities Act. Under the Seventh Circuit’s old analysis of EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000), the court held an employer is not required to reassign an employee to a vacant position when they are no longer qualified for their previous position due to a disability.

The Seventh Circuit changed course when asked to look again at this rule by the EEOC in light of the Supreme Court’s opinion in U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002). There, the Supreme Court determined that transferring an individual with a disability to a vacant position would not be a reasonable accommodation where that reassignment would violate a seniority system in place. However, the Seventh Circuit described that the seniority system in Barnett was a fact-specific exception to the general standard laid out by the Supreme Court and violation of that seniority system would have caused a hardship on the employer.

Instead, the Seventh Circuit found that its previous Humiston-Keeling opinion did not follow the Supreme Court’s finding that reassignment to a vacant position is a reasonable accommodation. A two step analysis applies under Barnett: first, the employee must show that the accommodation is a type that is reasonable in the run of cases; second, the employer must then demonstrate that the accommodation would impose undue hardship in the particular circumstances. Even if the employee is unsuccessful in showing that the accommodation is reasonable, the Seventh Circuit noted he or she can still be successful “by showing that special circumstances warrant a finding that the accommodation is reasonable under the particular circumstances of the case.”

This new opinion is important for Wisconsin and Illinois employers because both states fall under the jurisdiction of the Seventh Circuit. Where an employee with a disability is unable to continue in their current role, an employer will likely need to consider granting a request to a vacant position that the employee is qualified to fill. The EEOC v. United Airlines, Inc. opinion strongly suggests it is only in a narrow set of circumstances where the employer may claim undue hardship to deny the request. Employers should contact an attorney with any questions concerning their obligations under the specific circumstances they encounter.