Must Employers Appoint Employees With Disabilities to Vacant Positions? New Guidance From The Courts

Employers may violate the Americans with Disabilities Act (“ADA”) if they fail to appoint disabled employees to vacant positions for which they are qualified, even if they are not the most qualified candidate for the job, according to a recent decision by the Seventh Circuit.  In EEOC v. United Airlines, No. 11-1774 (7th Cir. Sept. 7, 2012),  the Seventh Circuit overruled its own precedents and adopted the Supreme Court rule first announced in U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002) – that an employer has a duty to appoint a qualified disabled employee to a vacant position, absent “undue hardship”.  Under Barnett, for example, if the reassignment violates a seniority system, that ordinarily will constitute undue hardship, but the Plaintiff can still argue that special circumstances support the finding of an ADA violation.  This decision brings the Seventh Circuit in line with the Tenth and D.C. Circuits, though the Eighth Circuit continues to adhere to precedent imposing no such duty on employers.