Here’s the scenario: You have a disabled employee who seeks an accommodation. Mindful of the Americans with Disabilities Act, and being the compliant company that you are, you engage that employee in an interactive dialogue to discuss reasonable accommodations — options to allow the employee to perform the essential functions of the position.
Ah yes! You recall that there is another vacant position for which the employee is qualified — albeit barely. That’s a reasonable accommodation. But, oh no! You remember seeing the resume of the perfect candidate for that position.
Question: If there is no other reasonable accommodation available, do you have to offer that open position to the barely-qualified disabled employee? Or can you fill the position with the more qualified candidate?
I’ll discuss after the jump…
* * *
That was the issue in EEOC v. United Airlines. When that case made it to the Seventh Circuit Court of Appeals, that Seventh Circuit had already held (here) that an employer did not have to reassign the disabled employee and, instead, could choose the more qualified candidate. But, when it revisited the issue in the United Airlines case, the Seventh Circuit reversed itself, holding that reassignment under the ADA trumped going with the better job candidate.
In requesting relief from the Supreme Court, United Airlines pointed out that while the Seventh Circuit’s decision jibes with prior decisions from the Tenth Circuit and DC Court of Appeals, it is at loggerheads with decisions of six Circuit courts (Second, Fourth, Fifth, Sixth, Eighth, Eleventh).
[For my local readers, there has been no direct guidance from the Third Circuit of which I am aware. This is the closest, you’ll get. And it’s not really on point. However, one of the district courts in Pennsylvania (here) has sided with the Seventh Circuit.]
Unfortunately, rather than address the issue raised in the United Airlines case, the Supreme Court passed. Interestingly, the Supreme Court had previously agreed to consider the Eighth Circuit decision noted above. But that case settled before the Court had a chance to rule.
Answer: If you are in one of the Circuits where the court has specifically addressed this issue, you have your local guidance. (Note: Some of the decisions cited by United are not directly on point). Otherwise, the risk averse employers will fill the vacant position with the disabled employee, or consider other accommodation possibilities.
Above all, with a dicey issue like this, consult legal counsel before making any decisions.