Is reassignment to a vacant position required by the ADA?


Lynette, an employee in your organization, injured her back. As a result, she can no longer perform the frequent lifting required by her current job. As a reasonable accommodation, she requested reassignment to a vacant position for which she is qualified. However, pursuant to your company’s competitive transfer policy, you instead hired a more qualified applicant. Contending that your failure to reassign her to the vacant position violated the Americans with Disabilities Act (ADA), Lynette filed a lawsuit against your organization. Will she be successful?


Maybe. In a case involving an employer’s competitive transfer policy, which provided that employees needing accommodation would not be automatically placed into vacant positions but would instead be given preferential treatment, the Seventh Circuit ruled that the ADA requires an employer to appoint employees with disabilities to vacant positions for which they are qualified, provided that such an accommodation would be ordinarily reasonable and would not present an undue hardship for the employer. Noting that the U.S. Supreme Court has found that accommodation through appointment to a vacant position is reasonable, the federal appeals court stated that absent a showing of undue hardship, an employer must implement such a reassignment policy. Joining the Tenth and D.C. Circuits, the court overruled an earlier Seventh Circuit decision that held that an employer’s competitive transfer policy did not violate the ADA.

Source: EEOC v. United Airlines, Inc (7thCir 2012) No. 11-1774.

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