If you can’t do your specific job because you are disabled, do you have the right to be placed in another vacant position? What if there’s another candidate who is more qualified for the vacant position? In the DC Circuit, as well as the Seventh and Tenth Circuits, the Courts have held that employer’s duty to accommodate a disabled employee now includes reassignment to an equivalent, vacant position for which the employee meets the minimum qualifications, even if a more qualified candidate has applied, so long as doing so would not pose an undue hardship.
The most recent case was decided last month by the 7th Circuit Court of Appeals in Chicago, EEOC v. United Airlines. The lead plaintiff in that case was Joe Boswell, a United mechanic at San Francisco International Airport who had a brain tumor. At first, he took leave and sought medical treatment. His doctors concluded that he would be unable to do his job as a mechanic. But United did not offer him another job. He applied for numerous other open positions at the airline, but he was consistently turned down. So United put him on involuntary leave.
United had a policy whereby disabled workers had to compete for vacant positions. They got preferential treatment over non-disabled workers for vacant positions. That meant that if the two workers were equally qualified for a job, the disabled worker would win. The policy did not afford automatic placement into those positions. In other words, if the non-disabled candidate was better qualified, the disabled candidate would lose out.
The EEOC argued that United’s policy violated the Americans with Disabilities Act (“ADA”). It contended that the ADA required employers to do more – they must move workers losing their jobs because of disability to vacant jobs for which they are qualified. According to the EEOC, it did not matter that there was a more qualified candidate.
The 7th Circuit agreed:
(We) hold 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.
The 7th Circuit sent the case back to U.S. District Judge Harry Leinenweber in Chicago to review United’s policy under this standard.
The case is Equal Employment Opportunity Commission v. United Airlines Inc, 7th U.S. Circuit Court of Appeals, No. 11-1774.
If you feel that your employer has discriminated against you because of a disability, please contact Kalijarvi, Chuzi, Newman & Fitch for a confidential consultation.
Partner Elizabeth L. Newman contributed this blog entry.