An employer should have to place a disabled worker into an open position, even if far more qualified employees are seeking the same vacancy. Sound like a legal requirement? It could be.

In a recent case involving an employer’s obligation to accommodate a disabled employee by transferring her to a vacant position, the U.S. Court of Appeals for the Seventh Circuit appeared to indicate that the ADA required such an accommodation. However, because the three-judge panel’s belief was at odds with previous decisions, the Court affirmed dismissal of the case, but not without first inviting the entire appeals court to adopt a more employee-friendly standard.

In E.E.O.C. v. United Airlines, Inc., the employer adopted new reasonable accommodation guidelines. Those guidelines specified that while transferring a disabled employee no longer able to perform the essential functions of his or her job to a vacant position could be an appropriate accommodation, the transfer process is competitive, meaning that though disabled employees will receive priority consideration, they will not be guaranteed the vacancy over superior candidates seeking the same position. The EEOC took exception and filed suit, asserting that the ADA requires the disabled employee be given the vacancy as long as the disabled individual is minimally qualified for the position. Because the Seventh Circuit had addressed this same issue in 2000, the district court granted the employer’s motion to dismiss. The EEOC then appealed, arguing that the Seventh Circuit should overturn its previous decision.

While the Court declined the EEOC’s request and reaffirmed the previous ruling — that the ADA does not require disabled employees receive preferential treatment for vacancies when a more qualified candidate seeks the same position — its endorsement of that ruling was tepid at best. While the Court noted, “the EEOC’s interpretation may in fact be a more supportable interpretation of the ADA, and here we think that is likely,” the Court stated that it could not overturn a previous decision absent a change in the governing statutory language or an intervening Supreme Court decision directly undermining the previous decision. Because neither had occurred, the panel was constrained by the 2000 decision and thus affirmed dismissal. However, after noting that other U.S. Courts of Appeals had reached different conclusions and again suggesting that the EEOC’s position was persuasive, the panel closed its opinion by “strongly” recommending that the full Seventh Circuit reconsider the issue on an en banc basis — the only mechanism for reversal of the Seventh Circuit’s current precedent short of Supreme Court reversal.

While the recent decision does not render any immediate change to the ADA landscape, it does portend both that the EEOC will continue pushing this issue and that a national rule of law requiring super-preferential treatment for disabled employees may be on the horizon. In light of the Seventh Circuit’s language, the likelihood that the EEOC will seek en banc review from the Seventh Circuit is high, and if that effort is unsuccessful, the EEOC also is likely to petition the Supreme Court for review. The EEOC also is likely to push the issue in jurisdictions where the circuit court of appeals has not opined on this issue and, in light of the Seventh Circuit’s tepid decision, it may find other circuits to be receptive. Employers looking to avoid the risks presented by this uncertainty — particularly in areas where the governing circuit has yet to weigh in on this issue — might be wise to give preferential treatment to disabled employees seeking internal transfers, and if better qualified
candidates for the same position exist, employers should seek legal counsel to assist with making an appropriate decision.