On September 7, 2012, the United States Court of Appeals for the Seventh Circuit—which has jurisdiction over cases from Illinois, Indiana and Wisconsin—changed its position regarding when an employer must reassign a disabled employee to a vacant position as a reasonable accommodation under the Americans with Disabilities Act (ADA). The Seventh Circuit's ruling in EEOC v. United Airlines requires employers to place disabled employees who have been displaced from their positions due to disability in vacant positions for which they are qualified, even if there is a more qualified candidate for the open position, provided that the accommodation would be ordinarily reasonable and would not present an undue hardship to that employer.

Employers in the Seventh Circuit had previously been operating under the precedent set in EEOC v. Humiston-Keeling, which permitted employers to consider whether the disabled employee was the best qualified applicant for a position vacancy. In United Airlines, the Seventh Circuit held that its Humiston-Keeling decision was overruled by the United States Supreme Court opinion in the case US Airways v. Barnett, despite other rulings since the Barnett decision that continued to follow Humiston-Keeling. In Barnett, the employee was a cargo holder who suffered a back injury and subsequently invoked his seniority status, not his disability status, to transfer to a mailroom position. Two more senior employees subsequently bid on mailroom jobs, effectively "bumping" plaintiff Barnett from that role, and the airline declined to override the seniority system and keep Barnett in his mailroom position as a reasonable accommodation. The Court held, without considering whether Barnett was the best qualified applicant for the position, that the employer was not required to keep Barnett in the mailroom position because violation of the seniority system would have been an undue hardship.

In United Airlines, the EEOC challenged the airline's reasonable accommodation guidelines because the guidelines required disabled employers who were displaced from their positions due to disability to compete with non-disabled employees for employment vacancies. The District Court granted the airline's motion to dismiss the case based on Humiston-Keeling, but the Seventh Circuit reversed that ruling holding that employers are required to appoint disabled employees to vacant positions for which they are qualified, as long as the accommodation would ordinarily be reasonable and would not present an undue hardship to the employer. The court noted that despite the fact that employers might prefer to hire the best-qualified applicants and have a policy to that effect, the violation of such a policy would not necessarily create an undue burden for the employer. On that note, it is important to highlight the fact that the Seventh Circuit also remanded this case to the lower court for evaluation of any fact-specific considerations which would indicate that placement of the disabled employee in the open position would have been an undue hardship on the employer. Such factors could include whether the vacant position was previously offered to another employee or whether there was a conflicting policy, such as a seniority system, that would cause an undue burden if disrupted.

Although employers in the Seventh Circuit who do not give displaced, disabled employees preferential consideration for open positions should review their policies in light of this holding, the United Airlines ruling does not make granting a disabled employee's request for a reassignment as a reasonable accommodation automatic. Employees must first establish that they have disabilities and inform their employers of their disabilities in order to trigger the duty to provide the employee with a reasonable accommodation. Furthermore, reassignment to a vacant position may not be the only option available to the employer where another reasonable accommodation is available; such as providing an accommodation which allows the disabled employee to remain in his or her current position. The United Airlines decision also does not change the fact that employers have no duty to create vacancies as a reasonable accommodation, to promote disabled employees to higher positions than they formerly held, or to place disabled employees in positions for which they are not qualified.

In light of the Seventh Circuit's recent decision, employers should seek legal counsel to ensure that their accommodation policies and decisions comply with all applicable laws.