Under the Americans with Disabilities Act (“ADA”), employers must provide a reasonable accommodation to a qualified individual who has a disability absent an undue hardship to the employer. The ADA further provides that reassignment to a vacant position is a possible reasonable accommodation.
Earlier this year, the Seventh Circuit Court of Appeals in EEOC v. United Airlines, Inc. [pdf] overturned its prior precedent on the issue of competitive transfers. United maintained reasonable accommodation guidelines which provided that a transfer to a vacant position may be a reasonable accommodation. However, the guidelines further provided that the transfer process is competitive. Disabled employees submit transfer applications and are provided priority consideration for the positions, but are not guaranteed the position. If two candidates are equally qualified, the employee seeking an accommodation would receive the job.
The EEOC took issue with the policy and filed suit alleging that United’s policy violated the ADA. The Seventh Circuit relying on the Supreme Court’s decision in US Airways v. Barnett reinstated the EEOC’s case instructing the trial court to determine “if mandatory reassignment is ordinarily, in the run of cases, a reasonable accommodation.” The Court further indicated that unless there are circumstances of which the Court of Appeals was not aware, the reassignment should be a reasonable accommodation, and the focus should be on whether the reassignment is an undue hardship on the employer.
This case is a good reminder for employers confronted with a request to transfer as a possible reasonable accommodation. Employers must carefully consider the legal implications as mandatory reassignments to open positions are likely required unless such reassignment would create an undue hardship.