[author: Mark Wilkinson]

As we reported in March, the Seventh Circuit Court of Appeals previously held that an employer's duty to accommodate a disabled employee did not extend to reassigning the employee to a vacant position if a more qualified candidate had applied. Rather, an employer satisfied its duty to accommodate by allowing the disabled employee to apply for a vacant position for which he or she was qualified; however, the employer had no duty to award the position to the disabled employee if he or she was not the most qualified candidate.

The Seventh Circuit originally reaffirmed this ruling in EEOC v. United Airlines Inc., but after invoking an appellate procedure by which all the court's judges were polled about how they would approach this issue if given the opportunity, a majority of them voted to reverse the court’s earlier decision. Accordingly, on September 7, the Seventh Circuit issued a new opinion. The court joined the Court of Appeals for the Tenth and District of Columbia Circuits and adopted a new rule: An 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.

For employers with operations in the Seventh Circuit (Illinois, Indiana, and Wisconsin), the new United Airlines decision will make it somewhat more difficult to establish that they met their duty to accommodate a disabled employee. In addition to traditional accommodations such as modifying facilities or work stations, job restructuring, part-time or modified work schedules, or acquiring or modifying equipment, employers in the Seventh Circuit must add reassignment to an equivalent, vacant position (assuming one exists) to the list of possible accommodations, notwithstanding the existence of a more qualified candidate. Although employers can refuse to reassign a disabled employee if doing so would pose an undue hardship, employers should remain mindful that generalized conclusions will not suffice to support a claim of undue hardship. Instead, to show undue hardship, employers must make specific, individualized, non-speculative assessments of the difficulty or expense of a particular reasonable accommodation.