Are employers obligated, as a reasonable accommodation, to fill a vacant position with an employee whose disability renders him unable to perform his own job when other candidates for the vacant position are more qualified? The position of the Equal Employment Opportunity Commission (EEOC) that employers have that obligation under the Americans with Disabilities Act (ADA) was recently rejected by a three-judge panel of the Court of Appeals for the Seventh Circuit. But the panel took the unusual step of recommending that the issue be considered by the court en banc (i.e. by the entire membership of the Seventh Circuit). In the great majority of circuits, the issue remains unsettled, and employers must tread carefully when responding to such accommodation requests.

The Seventh Circuit’s Decision

In EEOC v. United Airlines, Inc., the EEOC brought suit under the ADA against United Airlines (United) on behalf of five United employees who were unable to continue in their current positions because of their disabilities and whose applications for vacant positions were rejected under United’s policy of requiring such employees to compete for vacant positions. The ADA expressly provides that a reasonable accommodation “may include . . . reassignment to a vacant position." 29 U.S.C.§ 12111(9)(B). Under United’s policy, to receive priority consideration for placement in a vacant position as an accommodation a disabled employee must be at least tied in qualifications with the best applicant. The District Court dismissed the EEOC’s action, ruling that it was bound by the Seventh Circuit’s 2000 decision in EEOC v. Humiston-Keeling, where the court had rejected the EEOC’s position that policies requiring disabled employees to compete for vacant positions violated the ADA.

In United Airlines, the EEOC asked the Seventh Circuit to reverse its decision in Humiston-Keeling in light of the Supreme Court’s subsequent decision in US Airways, Inc. v. Barnett in 2002. There, the Supreme Court held that ordinarily it would be an “undue hardship” under the ADA to require an employer to forego its well established seniority system in filling a vacant position in favor of a disabled employee. But seniority systems aside, the Court ruled that merely because an employer’s policy for filling vacancies is disability-neutral does not make “unreasonable” a disabled employee’s accommodation request to fill a vacant position for which he is qualified. Thus, presumably, an employer’s policy of filling a vacant position with the most qualified employee is not by itself a valid basis on which to reject an accommodation request from a disabled employee qualified to fill the vacancy, and the employer would have to demonstrate why requiring it to disregard its policy would constitute an “undue hardship” under the circumstances.

In United Airlines, the panel hearing the appeal concluded that it did not have the authority to reverse the Court’s earlier decision in Humiston-Keeling. Finding the logic of the EEOC’s position persuasive, however, the panel “strongly” recommended en banc consideration of the issue. The other circuits that have considered the precise issue are divided. The Eighth Circuit has adopted the Seventh Circuit’s position, but the Ninth and Tenth Circuits have concluded that employers must demonstrate “undue hardship” for ADA purposes when rejecting an accommodation request for a vacant position and cannot merely rely on the availability of more qualified candidates.

Conclusion

It is likely that the Supreme Court will take up this issue at some point. Indeed, the Supreme Court granted certiorari in the above-noted Eighth Circuit case, but the case settled before the Court could render a decision.

Employers should review requests to fill vacant positions as an accommodation on a case-by-case-basis. Although in most jurisdictions there is currently no definitive ruling on the issue, an employer who cannot demonstrate undue hardship when denying such a request in favor of a more qualified employee runs a not insignificant risk that it will not fare well in any ensuing litigation.

If you have any questions regarding the accommodation of disabled employees, please feel free to contact any of the attorneys in the Gibbons Employment & Labor Law Department with any questions that you may have.

Richard S. Zackin is a Director in the Gibbons Employment & Labor Law Department.