[ author: Mark Wilkinson ]

The Americans with Disabilities Act (ADA) generally requires an employer to make a reasonable accommodation for a qualified applicant or employee’s physical or mental limitations unless the employer can demonstrate that the accommodation would pose an undue hardship on its operations. The focus of the inquiry under the ADA often turns on whether an employer offered a reasonable accommodation, especially because the 2008 Americans with Disabilities Act Amendments Act significantly lowered the threshold for the kinds of conditions that qualify as covered disabilities.

When employees have disabilities that render them unable to perform the essential functions of their jobs—with or without a reasonable accommodation—the Court of Appeals for the Tenth and District of Columbia Circuits have held that the employer has a duty to reassign the employee to an equivalent, vacant position for which the employee is qualified, even if he is not the most qualified for the job in comparison to other applicants. The Seventh and Eighth Circuits, however, have found that an employer satisfies its duty to provide a reasonable accommodation by giving an employee with a disability the opportunity to apply for the vacancy, but the employer does not have to award the position if the employee is not the most qualified candidate.

Last week in EEOC v. United Airlines Inc., the Equal Employment Opportunity Commission (EEOC) asked the Seventh Circuit to change course and overrule its prior precedent (EEOC v. Humiston-Keeling), which held that an employer’s offer of a competitive transfer satisfied the obligation to provide a reasonable accommodation. The court declined to do so, but “strongly recommended” consideration of the EEOC’s arguments by all of the Seventh Circuit judges “since the logic of the EEOC’s position on the merits, although insufficient to justify departure” from existing precedent, “is persuasive.” If a majority of the Seventh Circuit’s judges agree to consider the EEOC’s position, the court may very well reverse course and adopt a rule like the Tenth and District of Columbia Circuits have. The Supreme Court may also decide to review this issue and settle the debate amongst the federal appellate courts. We will continue to monitor these developments as they unfold.