Many employers will need to change their practices for selecting employees for job vacancies due to a decision issued last week by a federal appeals court interpreting the ADA. In EEOC v. United Airlines, the Seventh Circuit addressed the issue of whether an employer has a duty under the ADA to assign an employee who is unable to do his/her current job due to a disability to a vacant position over more qualified candidates for the job. The Seventh Circuit, whose decisions apply in Illinois, Wisconsin, and Indiana, has said that, in most circumstances, they do.In the United Airlines case, the employer had a policy, like many employers do, of selecting the most qualified candidate for a job vacancy. The court had previously held that an employer that had such a policy was not required by the ADA to make an exception to that policy for an employee who needed a job transfer because that employee could no longer do his/her job due to a disability. The court has now come to the opposite conclusion in the United Airlines case. Absent a seniority system governing job assignments, an employer must assign a disabled employee to a job vacancy if the employee meets the minimum qualifications for the job, unless the employer can make a particularized showing that it would be an undue hardship to do so. In other words, the disabled employee cannot be required to compete for the job if he/she is minimally qualified. Under this decision, simply presenting evidence that the candidate selected was more qualified for the job, and that the employer’s policy is to select the most qualified candidate, will not be enough to establish such undue hardship.
There is a split in authority on the issue in the federal courts and, as a result, it may ultimately be decided by the U.S. Supreme Court. However, in the meantime, employers need to be aware that choosing a better-qualified candidate for a job vacancy over a minimally qualified disabled employee who needs the job as an accommodation may be found to violate the ADA, unless the employer can establish it would be an undue hardship, under the particular circumstances, to assign the disabled employee to the job. Employers should check the status of the law where they are located before refusing to place a disabled employee into a job vacancy because the disabled employee is not the most qualified candidate for the job.