By now, all employers know they are required to make reasonable accommodations for qualified disabled employees under the Americans with Disabilities Act ("ADA"). Most employers also know that "reassignment to a vacant position" is a potential reasonable accommodation that employers should consider making.  But, courts have come to different conclusions on the extent of this obligation when a disabled employee and a more qualified employee seek the same, vacant position. 

Until this month, employers in the Seventh Circuit relied on the case EEOC v. Humiston-Keeling for the proposition that while the ADA instructed employers to consider reassignment, reassignment was not mandatory.  Instead, under Humiston-Keeling, an employer was entitled to fill the vacancy with the most qualified candidate – even if that meant the disabled candidate did not receive the reassignment.  The Seventh Circuit's opinion in Humiston-Keeling rejected the EEOC's approach of granting preferential or priority status upon individuals with disabilities, noting that the approach was "affirmative action with a vengeance" and created a "hierarchy of protections for groups deemed entitled to protection against discrimination."  The court held that passing over the more qualified employee transformed the ADA from a nondiscrimination statute into a mandatory preference law not justified by the Act.

While the court in Humiston-Keeling noted that employers were required to legitimately consider reassignment to a vacant position, it cautioned that reassignment was not mandatory and employers were not required "to give [an employee with a disability] the job even if another worker would be twice as good at it."

In a startling reversal, the Seventh Circuit "reinterpreted" the law of reasonable accommodation and found that, unless to do so would create an undue hardship, the ADA required that disabled employees be given preferential treatment and be reassigned to positions for which they were qualified, even if there is another, arguably more qualified, candidate. 

In EEOC v. United Airlines (decided 9/7/12), the EEOC challenged the airline's policy under which employees with disabilities requiring a reassignment received priority consideration for the vacant position, a guaranteed interview, and ultimate selection for the position—provided the disabled employee was equally qualified as other applicants.  The assignment process, however, remained competitive.  The Seventh Circuit sided with the EEOC, and held that "the ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer."  The court noted that the Supreme Court has not imposed any "categorical exceptions" to an employer's reasonable accommodation obligation, and that an accommodation providing a "preference" to a disabled employee could be "reasonable on its face, i.e., ordinarily or in the run of cases."  Further, the court noted that the requirement to provide a reasonable accommodation cannot be overcome by strict adherence to disability-neutral rules.

In light of the Seventh Circuit's reversal of its long-standing precedent, employers should:

  • Ensure that all job descriptions are accurate and up to date.  The Seventh Circuit opinion does not lead to an automatic transfer in all cases—the employee must be qualified for the vacant position.
  • Engage the employee in the decision-making process for any transfers to ensure that all parties are working with the same information and expectations are being defined.
  • Document all discussions to show that the employer engaged in the interactive process.
  • Determine if there are any case-specific circumstances that might create an undue hardship that should prevent the transfer.
  • Utilize the Human Resources department or employment counsel when addressing transfers and reassignments.