The issue: Under the Americans with Disabilities Act, can an employer force an employee with a disability to compete for an open position?

It’s a question that continues to split the nation’s circuit courts of appeals, as the U.S. Supreme Court recently declined to hear an appeal in United Airlines Inc. v. EEOC.

At the heart of this case is a “competitive transfer” policy adopted by the airline which gave disabled workers preferential treatment over non-disabled workers for vacant positions for which they were qualified. It did not, however, afford automatic placement into those positions. The U.S. Equal Employment Opportunity Commission (EEOC) argued United Airlines’ policy violated the ADA, which it says requires employers to reassign disabled workers into vacant positions as part of the reasonable accommodation process. The 7th Circuit agreed with the EEOC, which led to the airlines’ unsuccessful attempt to have its appeal be heard by the nation’s highest court.

In the D.C., 7th and 10th circuits (whose rulings apply to Oklahoma employers), the courts have come down on the side of the EEOC, ruling that the ADA mandates that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such an accommodation would not present an undue hardship to the employer.

Not all circuits have addressed the issue, but in the 2nd, 4th, 5th, 6th and 11th circuits, the courts generally follow the reasoning that an employer does not violate the ADA when a disabled employee applies for reassignment to a vacant position but a more qualified non-disabled person is selected.

Given the split in the circuit courts, what’s an employer — particularly one with workplaces and employees in multiple jurisdictions — supposed to do?

Even in the 7th and 10th circuits, an employer can still deny a transfer request from a disabled employee if it can clearly show that reassigning the employee would create undue hardship on the company. In organizations where there is no seniority policy or collective bargaining agreement in place, arguing undue hardship may be more difficult. Seniority is an objective standard. Having a policy that requires hiring the best person for the job is more subjective.

The U.S. Supreme Court’s refusal to review this issue did not change the law in the 10th circuit. However, it is a good time to be reminded that in Oklahoma, companies will have to explain, on a case-by-case basis, why a qualified disabled employee was denied the requested transfer on the basis of undue hardship.