The answer depends on where you live. For Minnesota employers, the Federal Eighth Circuit Court of Appeals ruled in a case entitled Huber v. Wal-Mart Stores, Inc., 486 F.3d 480 (8th Cir. 2007), that an employer is not required to reassign a disabled person to a vacant position ahead of better qualified applicants.
The Equal Employment Opportunity Commission (EEOC) believes otherwise, having asserted way back in 1999 that “reassignment means that the employee gets the vacant position, if s/he is qualified for it.” Courts in other federal circuits, including those in Colorado (10th Circuit), D.C. (D.C. Circuit), and Florida (11th Circuit), have agreed with the EEOC’s reading of the ADA.
The Seventh Circuit in Chicago had previously sided with the Eighth Circuit’s view on this issue, explaining that the ADA merely requires a level playing field and is not “an affirmative action statute.” However, last week they reversed course and ruled:
“[T]he 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.” EEOC v. United Airlines Inc., No. 11-1774 (Sept. 7, 2012).
The court was not persuaded by the company’s “disability neutral” policy of hiring only the best applicant for a vacant job. They found that while an employer probably does not have to disregard a full-fledged “seniority system” (e.g., a system established by a collective bargaining agreement), a simple rule or policy does not create an “automatic exemption” from an employer’s duty to accommodate under the ADA. Instead, the employer must be prepared to show that “fact-specific circumstances” particular to the employer’s employment system would create an undue hardship and render mandatory reassignment of a disabled employee into a vacant job unreasonable.
Bottom Line
Remember that this is a Seventh Circuit decision so it does not directly impact Minnesota employers. However, the EEOC’s success in getting the Seventh Circuit to flip flop almost certainly will spur them to seek the same from the Eighth Circuit. Therefore, while the law governing Minnesota says that we can remain “disability neutral” and not give preference to a disabled employee over more qualified applicants for a vacant job, we definitely can sense a possible change in the wind.
We will keep you up to date as this emerging issue continues to develop.