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Lawyers find ADA circuit split hard to accommodate

It’s an issue that leaves employment lawyers and their clients scratching their heads: Must an employer reassign a disabled employee to a vacant position that would have otherwise been filled by a competitive process?

While the circuits have split on the issue and attorneys have relied on the law of their particular jurisdiction, a recent reversal from the U.S. Court of Appeals for the 7th Circuit in favor of disabled employees has created a new sense of uneasiness in the employment law bar — and spurred calls for the U.S. Supreme Court to clear up the confusion.

“For employers with a presence in multiple circuits, the circuit split makes it difficult for them to apply consistent job transfer and accommodation policies at all their worksites,” said Katie Triska, an employer-side attorney in the labor and employment practice of Reinhart Boerner Van Deuren in Milwaukee.

But plaintiffs’ lawyers say that disabled employees have the most at stake.

“Disability cases are extremely hard to win,” said Elizabeth Newman, a partner in the Washington office of employment law firm Kalijarvi, Chuzi, Newman & Fitch.

When the issue is the reasonableness of an accommodation, Newman said, “it’s hard to even get that far in a disability case.”

In its Sept. 7 decision in EEOC v. United Airlines, the 7th Circuit overturned a previous holding to declare 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.”

After the ruling, the employer quickly filed a petition for certiorari with the Supreme Court. The court is scheduled to decide later this term whether to add the case to its docket.

Precedent, split and reversal

The Supreme Court has ruled on the issue of reassignment under the Americans with Disabilities Act before. In its 2002 ruling in US Airways v. Barnett, the court held that an employer’s established seniority policy trumps the ADA provision including “reassignment to a vacant position” among the list of reasonable accommodations.

Unless a disabled employee can show special circumstances warranting a transfer that is contrary to the employer’s seniority policy, the court held, the policy controls.

The ruling left open the question of whether an employer’s policy of filling a position via a competitive hiring process would also trump the ADA, and the lower circuits have come to different conclusions.

The D.C. Circuit held that a disabled employee could be reassigned to a vacant position, and the U.S. District Court there has interpreted that precedent as establishing an affirmative duty on employers to reassign a disabled employee if a vacant position would accommodate their condition. The 10th Circuit has also ruled that the ADA requires reassignment of a disabled employee to a vacant position, although it indicated that the right was not absolute.

But other courts disagree, starting with the 7th Circuit in the 2000 decision in EEOC v. Humiston-Keeling, which held that the ADA does not require an employer to reassign a disabled worker to a vacant position if there is a better qualified applicant for the job. Following that reasoning, the 8th Circuit held similarly in Huber v. Wal-Mart Stores. The Supreme Court granted certiorari to settle the issue, but dismissed the case after the parties settled.

Last year the 7th Circuit reversed itself in United Airlines, expressly overruling Humiston-Keeling and holding that reassignment to a vacant position was mandated by the ADA. A circuit split remains, but a ruling relied upon by employers and their attorneys has now been replaced by a decision establishing the broadest duty to reassign disabled workers.

Employers consider risk

Even if employers have clear policies requiring competitive hiring processes for vacant positions, those policies may not be enough to preclude an ADA claim. So employers should err on the side of caution.

“Employers need to determine how much risk they are comfortable assuming,” Triska said. “As a conservative approach, employers should give qualified disabled employees preference for vacant positions as a reasonable accommodation. Of course, in the regions [where circuits have held in employers’ favor], those employers may take a slightly more aggressive approach in considering disabled employees for vacant positions.”

The current circuit split has a larger potential impact now that the ADA Amendments Act has broadened the definition of “disabled” under the Act.

“Employers may have to give preference to more individuals for vacant positions than they would have had to do before the ADAAA,” Triska said.

But Newman said the sky is not falling.

“In the federal government, this has already been the rule,” said Newman, who represents federal employees who are required to be transferred to vacant positions for which they are qualified if they are disabled. “If you have a position that is vacant, and a [disabled] person is qualified for that position, they have the right to be transferred.”

The employment bar is now waiting to see if the Supreme Court again grants certiorari on the issue. Business groups are urging the court to step in. In an amicus brief filed in support of granting certiorari in the 7th Circuit case, the Equal Employment Advisory Council, the U.S. Chamber of Commerce and other groups argue that the latest ruling “unjustly interferes with the unassailable right of employers to select and maintain the best qualified workforce available, and upsets the legitimate expectations of non-disabled employees to be judged solely on their merit.”


Does the ADA require an employer to reassign a disabled employee to a vacant position that would otherwise be filled via a competitive hiring process?


The D.C. and 10th Circuits have ruled that the law does require reassignment, but have noted exceptions to that rule. The 7th Circuit recently overturned its prior precedent, now holding that the law does mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified.

The 8th Circuit has held that an employer did not violate the ADA by requiring a disabled employee to apply for reassignment to a vacant position and ultimately selecting a non-disabled applicant to fill the post.


A petition for certiorari in the 7th Circuit case is pending before the Supreme Court, and filings are due in April. The Court had agreed to consider the issue in a previous case out of the 8th Circuit in 2007, but the case was dismissed before oral argument when the parties settled.

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