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Employers Must Appoint Disabled Employees to Vacant Positions

By Robyn Hagan Cain | Last updated on

In March, the Seventh Circuit Court of Appeals ruled that Humiston-Keeling still controlled reasonable accommodation claims, but it indicated that it might reconsider the impact of the Supreme Court's 2002 US Airways, Inc. v. Barnett decision on Humiston-Keeling.

That day of reconsideration has come.

Friday, the appellate court announced that Humiston-Keeling did not survive Barnett, and that “the ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer.”

The case, EEOC v. United Airlines, involved a dispute over an internal policy at United.

In 2003, United set out Reasonable Accommodation Guidelines that addressed accommodating employees who, because of disability, could no longer do the essential functions of their current jobs even with reasonable accommodation. While the guidelines noted that "transfer ... to an equivalent or lower-level vacant position" may be a reasonable accommodation, they specified that the transfer process was competitive. Employees needing accommodation would not be automatically placed into vacant positions, but would be given preferential treatment.

The EEOC sued United, alleging that the policy violated the ADA. A district court granted United's motion to dismiss the suit under Rule 12(b)(6), finding Humiston-Keeling, which held that a competitive transfer policy does not violate the ADA, was directly on point and had not been overruled by the Seventh Circuit.

That was correct. Until this week.

The Seventh Circuit Court of Appeals has now followed the Tenth and D.C. Circuits' leads, finding that the ADA requires employers to appoint disabled employees to vacant positions, barring undue hardship or collective bargaining limitations.

In case you didn't already have enough work to keep you busy through the day, it's time to update your clients, and modify your company policies accordingly.

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