Seventh Circuit Increases Duty of Employers to Reassign Disabled Workers
Under the American’s with Disabilities Act, and most state discrimination laws, employers must make reasonable accommodations for qualified disabled workers. When no accommodation would allow the employee to remain in his or her current position, employers must consider reassignment to a vacant position for which the employee is qualified. In a decision it issued last week, the Seventh Circuit Court of Appeals (covering Illinois, Indiana and Wisconsin) clarified the obligation to reassign disabled workers.
On September 7, 2012, the Seventh Circuit issued its decision in EEOC v. United Airlines, Inc. For the first time, the court ruled that employers may be required to place a qualified disabled worker in a vacant position over a more qualified candidate. If a disabled employee is qualified for the position, and it would be reasonable to transfer her into it, the employer must give her that position unless that reassignment would create an undue hardship. A reassignment that would violate a collective bargaining agreement, or a seniority system, is likely to meet this standard. The court ruled that a policy of hiring the most qualified applicant is not enough.
The United Airlines decision overruled the Seventh Circuit’s prior decisions on this issue. In the past, the Seventh Circuit viewed policies favoring the most qualified applicant to be no different from collective bargaining agreements or seniority policies. An employer who consistently followed such a practice could refuse to reassign a qualified disabled employee if another candidate was more qualified. That is no longer the case.
About the Author
John E. Murray is a Shareholder with Lindner & Marsack, S.C. He has represented employers for more than 20 years. He has helped employers develop policies to limit risks. He offers counseling on all employment law matters and has developed several training programs, addressing critical risk topics for employers. If you have questions about your accommodation/reassignment practices, feel free to call him at 414-226-4818, or any other Lindner & Marsack attorney at 414-273-3910.
Lindner & Marsack, S.C. has represented management exclusively in all facets of labor, employment, and employee benefits law since 1908. They may be reached at (414) 273-3910, or visit via their website, www.lindner-marsack.com.