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Employment Law Blog
James Tarquin, P.A
As part of our commitment to assist and educate employees in fighting back against the abusive employment practices of employers, we offer a broad range of information about employment law issues in our employment blog

Must Employers Appoint Employees With Disabilities To A Vacant Position As A Reasonable Accommodation Under The Americans With Disabilities Act?

Disabled woman in wheelchair at work

The Americans with Disabilities Act (ADA) makes it unlawful for employers to discriminate against employees on the basis of disability.  Discrimination under the ADA includes not making reasonable accommodations to the known physical or mental limitations of an individual with a disability.  Thus, the ADA establishes a cause of action for disabled employees whose employers fail to reasonably accommodate their disability. The ADA includes reassignment to a vacant position as a possible reasonable accommodation for disabled employees.  At issue in EEOC v. United Airlines, Inc., 693 F.3d 760 (7th Cir. 2012) was whether reassignment under the ADA requires employees to appoint employees who are losing their current positions due to a disability to a vacant position for which they are qualified.

In that case, the U.S. Equal Employment Opportunity Commission (EEOC) brought suit claiming that United Airlines violated the ADA’s reasonable accommodation requirement by refusing to place employees who were losing their jobs due to a disability to vacate positions for which they were qualified. United Airlines maintained a written policy providing that transfer of employees who become disabled and can no longer perform the essential functions of their current position to an equivalent or lower-level vacant position may be a reasonable accommodation.  However, United Airlines’ policy further provided that:

[T]he guidelines specify that the transfer process is competitive.  Accordingly, employees needing accommodation will not be automatically placed into vacant positions but instead will be given preferential treatment. This allows employees needing accommodation to submit an unlimited number of transfer applications, be guaranteed an interview and receive priority consideration over a similarly qualified applicant—that is, if two candidates are equally qualified, the employee/applicant seeking accommodation will get the job.   

Under this policy, United Airlines did not appoint employees who become disabled and can no longer perform the essential functions of their current position into a vacant position as a reasonable accommodation. Instead, Untied Airlines required these employees to compete for the vacant positions with other employees and job applicants. As a result of this practice, employees with disabilities who were qualified for vacant positions were often unable to continue their employment with United Airlines.  In bringing the lawsuit, the EEOC sought an injunction barring United Airlines from making disabled employees compete with other job applicants for vacant positions and asked the court to require United Airlines to implement new policies.        

The trial court concluded that the ADA does not require an employer to reassign a disabled employee to a job for which there is a better qualified applicant and summarily dismissed the EEOC’s lawsuit. On appeal, the Seventh Circuit Court of Appeals reversed the trial court’s decision and reinstated the EEOC’s lawsuit. The appellate court held that “the ADA does 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 on that employer.” 

The Seventh Circuit’s decision potentially enables an employee who becomes disabled and who is no longer able to perform the essential functions of his or her current position to continuing working for the employer by requesting, as a reasonable accommodation under the ADA, reassignment to a vacant position for which they are qualified. Under the Seventh Circuit’s decision, the ADA’s reasonable accommodation requirement imposes a duty on employers to appoint employees who are losing their current positions due to a disability to vacant positions for which they were otherwise qualified as long as reassignment does not impose an undue hardship on the employer.   

We have extensive experience representing employees who have been subjected to disability discrimination and other types of discrimination in the workplace. If believe that you have experienced disability discrimination or your employer has refused to reasonably accommodate your disability, please contact our office for a free consultation.

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