Unless the Supreme Court decides to weigh in on a dispute between the circuits, employers with workers in multiple states are forced to navigate state by state where they are required to place a minimally-qualified disabled candidate into a vacant position over a more qualified non-disabled candidate. In its December 2012 petition for a writ of certiorari, United Air Lines Inc. asked the high court to address this important issue by reviewing a 7th Circuit ruling that essentially turns the Americans with Disabilities Act (ADA) into an affirmative action statute (EEOC v. United Airlines, Inc.).

Back in 2000, the 7th Circuit held in EEOC v. Humiston-Keeling that an employer did not violate the ADA if it required disabled employees to compete with other candidates rather than be automatically awarded vacant positions as accommodations.

Fast forwarding to 2009, the EEOC filed a case against United Airlines claiming its reasonable accommodation guidelines violated the ADA by requiring disabled employees to compete with non-disabled employees for vacant positions. The district court for the Northern District of Illinois granted United’s motion to dismiss, relying on Humiston-Keeling and other precedents. However, in September 2012, the 7th Circuitwhile admitting it “may be a close question”resurrected the EEOC’s case against United, ruling Humiston-Keeling did not survive the 2002 Supreme Court decision in U.S. Airways Inc. v. Barnett.

As United argued in its petition to the Supreme Court, Barnett did not suggest that an accommodation is reasonable if it requires better-qualified individuals to be denied positions when up against minimally-qualified disabled employees. Although Barnett rejected the contention that the ADA never requires “preferential treatment” of any kind, the Barnett court provided examples of “preferences” that would enable disabled employees to enjoy equal opportunity, such as suspending disability-neutral rules regarding office assignments which would prevent a disabled employee who needs a ground floor office from working on the ground floor.

United’s petition asks the high court to settle a split among the courts of appeals, where at present the 2nd, 4th, 5th, 6th, and 11th Circuits would appear to favor the 8th Circuit’s conclusion in Huber v. Wal-Mart Stores, Inc. that the ADA is not an affirmative action statute. On the other side of the fence, the 7th Circuit has now joined the 10th and (possibly) D.C. Circuits.

Meanwhile, contrary to its position in its case against United, the EEOC’s own website provides the following guidance to employers in its publication “The ADA: Your Responsibilities as an Employer” :

“The ADA does not interfere with your right to hire the best qualified applicant. Nor does the ADA impose any affirmative action obligations. The ADA simply prohibits you from discriminating against a qualified applicant or employee because of her disability.”

The Supreme Court most likely will weigh in on this important issue. After all, it previously granted certiorari to resolve the identical issue in Huber v. Wal-Mart Stores, Inc. but never had the opportunity to render a decision before the parties settled their dispute in 2008. Until the high court provides the law of the land, employers should use caution if requiring disabled employees in certain jurisdictions to compete for vacant jobs.