Contributed by Sara Zorich
On September 7, 2012, the Seventh Circuit revisited and changed its position regarding an employer’s duty to transfer an employee who was losing his/her current position due to disability into vacant positions for which he/she is otherwise qualified. The court’s new view is that the Americans with Disabilities Act (ADA) mandates that an employer must appoint an employee with a disability to a vacant position which he/she is qualified, provided that the accommodation would be ordinarily reasonable and does not create an undue hardship.
In its decision, the court adopted the 2-step case specific analysis outlined by the Supreme Court in U.S. Airways, Inc. v. Barnett, 535 U.S. 391(2002) as follows:
- Plaintiff/Employee only needs to show that the accommodation is reasonable on its face (i.e. ordinarily or in the run of cases).
- If the accommodation is shown to be the type that is reasonable then the burden shifts to the employer to show granting the accommodation would impose an undue hardship under the particular circumstances. On the other hand, if the accommodation is not shown to be reasonable then the employee can still prevail by showing that the special circumstances warrant a finding that the accommodation is reasonable under the particular circumstances of the case.
It is clear that the Supreme Court and now the Seventh Circuit both have found that ordinarily accommodation through appointment to a vacant position is a reasonable accommodation. The Seventh Circuit went on to note that employers will not be able to automatically claim that a deviation from a best-qualified applicant selection policy is an undue hardship.
In light of this ruling, employers should review their accommodation policies and practices. Furthermore, employers should ensure when engaging in the interactive process with a disabled employee that employers are reviewing their vacant positions and offering qualified disabled employees vacant positions as an accommodation.
EEOC v. United Airlines, Inc., 2012 U.S. App. LEXIS 18804 (7th Cir. Sept. 7, 2012)