EMPLOYERS MAY BE REQUIRED TO REASSIGN DISABLED EMPLOYEES TO VACANT POSITIONS. THE SEVENTH CIRCUIT “CORRECTS [A] CONTINUING ERROR” IN ITS DISABILITY ACCOMMODATION JURISPRUDENCE

The Seventh Circuit Court of Appeals issued an opinion on September 7, 2012 that clarifies employer responsibilities to disabled employees under the Americans with Disabilities Act. In EEOC v. United Airlines, Inc., the Court considered whether a United Airlines policy noting that “transfer … [to] an equivalent or lower-level vacant position” may be a reasonable accommodation, any such transfer is subject to a competitive process. Such a process would ensure preferential treatment of a disabled employee over a similarly-situated non-disabled employee but would not give a preference to a disabled employee over a more-qualified non-disabled employee. The Court first discussed the U.S. Supreme Court’s decision in U.S. Airways, Inc. v. Barnett. In that case, the Supreme Court set forth a framework for analyzing vacancy accommodation cases. First, a plaintiff/employee must show that an accommodation seems reasonable “on its face, i.e., ordinarily or in the run of cases.” If the employee meets this burden, the employer must demonstrate “undue hardship in the particular circumstances.” Here, the Court sent the case back to the trial court and instructed it to consider whether “mandatory reassignment is ordinarily, in the run of cases, a reasonable accommodation.” If it is, the court must then determine whether any “fact-specific considerations particular to United’s employment system that would create an undue hardship and render mandatory reassignment unreasonable.” Many Wisconsin employers erroneously believe that disabled employees requesting job transfer or reassignment as an accommodation are attempting to exercise rights outside of that required by the Americans with Disabilities Act. The Seventh Circuit rejects that position and adopts a two-step, case-specific approach for employers and employees to use when faced with this situation. Since this analysis is driven by facts on a case-by-case basis, we encourage you to contact one of the employment attorneys at Hawks Quindel, S.C. for assistance.