Some Employers Now Obligated to Transfer Employees with Disabilities to Vacant Positions

The Seventh Circuit Court of Appeals issued a decision this fall in EEOC v. United Airlines, determining that employers have a duty to transfer employees who are losing their current positions due to disability into vacant positions for which they are otherwise qualified, unless “undue hardship” would result. The Court concluded that the Airline’s policy of filling a vacant position with the best qualified candidate, at the expense of a disabled employee, was suspect under the ADA. “[T]he 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 Seventh Circuit’s approach adopts that of two other federal courts of appeals. The Tenth Circuit and the Circuit for the District of Columbia have both determined that the ADA requires employers to appoint disabled employees to vacant positions for which they are otherwise qualified, absent any undue hardship, even if more qualified candidates are available.

In light of this ruling, employers in the Seventh Circuit (Wisconsin, Illinois and Indiana) are advised to be extremely careful when handling requests from disabled employees for accommodation. The Eighth Circuit Court of Appeals, in contrast, has held that the ADA does not require an employer to fill a vacant position with a disabled worker if there is a better candidate, provided the employer consistently and honestly selected the best-qualified applicant for open positions. But the Eighth Circuit’s decision relied on an earlier Seventh Circuit case as precedent for its decision. Because of this, the Eighth Circuit case may not be reliable precedent any longer. Employers in the Eighth Circuit (Minnesota, North and South Dakota, Iowa, Missouri, Arkansas and Nebraska), therefore, would also be wise to take a cautious approach in responding to the requests of disabled employees to fill vacant positions.

This ruling of the Seventh Circuit, along with similar rulings in the Tenth and D.C. Circuits, suggest that an employer will expose itself to significant risk if it is unable to demonstrate a significant hardship in granting a disabled employee’s request to fill a vacant position and rather fills that vacant position with a nondisabled employee. Therefore, when selecting employees for job vacancies, an employer must select a disabled employee who has requested a reasonable accommodation and is otherwise qualified for the position, ahead of any other qualified candidate, unless the employer can demonstrate that to install the disabled employee in the position would pose an undue hardship for the employer. Simply choosing the most qualified candidate could potentially open an employer to the risk of a lawsuit. Keep in mind, however, that all candidates, including disabled applicants, must meet the essential requirements of the position. The Supreme Court may ultimately decide that this new ruling effectively grants preferential, not equal, treatment to the disabled and reaffirm the Eighth Circuit rule, but the law in the Seventh Circuit is now essentially preferential treatment.

Some questions employers should consider include: What does your handbook say about transfers as an accommodation? Do you have lawfully drafted job descriptions which specify the job’s essential duties and qualifications, including physical and mental requirements? Does the Company post all open positions internally?

If you have any questions regarding this LawFacts or any other employment or labor law question, please contact the authors, Attorneys Tara Craft Adams, Emily Ruhsam or any attorney at Peters, Revnew, Kappenman & Anderson, P.A. at (952) 896-1700.

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