According to a new decision issued by the 7th Circuit, EEOC v. United Airlines, Inc., employers are now required to reassign to vacant positions workers with disabilities who can no longer perform the essential functions of their jobs. In reaching this decision, the 7th Circuit overruled precedent allowing employers to implement transfer policies requiring disabled employees to compete with other candidates for reassignment positions. The shift in the court’s interpretation of the Americans with Disabilities Act (ADA) has great significance for employers working with employees with disabilities.

At issue in the decision was United’s “Reasonable Accommodation Guidelines,” which addressed the process for transferring employees with disabilities to vacant positions when they could no longer perform the essential functions of their current jobs. The guidelines specified that the process was “competitive.” In other words, employees with disabilities would receive preferential treatment when seeking reassignment, but were not guaranteed the transfer if a better-qualified candidate also sought the position. The Equal Employment Opportunity Commission (EEOC) argued that this policy violated the ADA, however the district court disagreed, citing a 2000 case, EEOC v. Humiston-Keeling.

In Humiston-Keeling, the 7th Circuit considered and upheld as legitimate a competitive transfer policy. Under that policy, disabled workers were required to compete with other, potentially better-qualified candidates for reassignment positions and the employer was permitted to select the best-qualified candidate without violating the ADA.

Though Humiston-Keeling was on-point for United’s case, the 7th Circuit determined that a 2002 case, U.S. Airways, Inc. v. Barnett, changed things. The Barnett court set forth a two-step, case-specific test for considering the reassignment question. First, the employee must show that an accommodation seems reasonable on its face, i.e., ordinarily or in the run of cases. The burden then shifts to the employer to show special, case-specific circumstances that demonstrate undue hardship in making the accommodation at issue. Based on this two-step approach, the 7th Circuit determined that, assuming an accommodation through appointment to a vacant position is reasonable, an employer must implement such a policy absent a showing of undue hardship. The 7th Circuit further noted that the Supreme Court has found that accommodation through reassignment of a disabled but qualified employee to a vacant position is reasonable. 

With this analysis, the 7th Circuit overruled Humiston-Keeling, noting that it “did not survive Barnett.” Significantly, the 7th Circuit 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 represent an undue hardship to that employer.”

This shift in interpretation of the ADA by the 7th Circuit is important. Under the 7th Circuit’s ruling, providing merely preferential treatment to employees with disabilities is no longer acceptable. Rather, unless the employer can show undue hardship, automatic reassignment is required. In light of this decision, employers are encouraged to review their accommodation policies and update them accordingly.