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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.).

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