By: John E. Murray

Under the American’s with Disabilities Act, and most state discrimination laws, employers must make reasonable accommodations for qualified disabled workers. When no accommodation would allow the employee to remain in his or her current position, employers must consider reassignment to a vacant position for which the employee is qualified. In a decision it issued last week, the Seventh Circuit Court of Appeals (covering Illinois, Indiana and Wisconsin) clarified the obligation to reassign disabled workers.

On September 7, 2012, the Seventh Circuit issued its decision in EEOC v. United Airlines, Inc. For the first time, the court ruled that employers may be required to place a qualified disabled worker in a vacant position over a more qualified candidate. If a disabled employee is qualified for the position, and it would be reasonable to transfer her into it, the employer must give her that position unless that reassignment would create an undue hardship. A reassignment that would violate a collective bargaining agreement, or a seniority system, is likely to meet this standard. The court ruled that a policy of hiring the most qualified applicant is not enough.

The United Airlines decision overruled the Seventh Circuit’s prior decisions on this issue. In the past, the Seventh Circuit viewed policies favoring the most qualified applicant to be no different from collective bargaining agreements or seniority policies. An employer who consistently followed such a practice could refuse to reassign a qualified disabled employee if another candidate was more qualified. That is no longer the case.

If you have questions about your accommodation/reassignment practices, feel free to call John Murray at 414-226-4818, or any other Lindner & Marsack attorney at 414-273-3910.

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