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Employers in Indiana May Be Required to Reassign Disabled Employees to Vacant Positions

Employers in the Seventh Circuit, which includes Indiana, Illinois and Wisconsin, must now reassign employees with a disability covered under the Americans with Disability Act (ADA) to vacant positions for which they are qualified if it is generally reasonable, unless the employer can demonstrate that it would create an undue hardship in the specific situation.  Even if reassignment to a vacant position is not generally reasonable, an employer may have to permit reassignment if the employee can establish that the accommodation is reasonable under the specific circumstances of the case due to special circumstances. 


United Airlines had established guidelines to use when an employee with a disability could no longer perform the essential functions of the job, even with a reasonable accommodation.  In those situations, United allowed the employee to seek a transfer to an equivalent or lower-level vacant position, but only in a process that was competitive.  Thus, if a better qualified applicant was seeking the position, that applicant would get the position.  If two candidates were equally qualified, the disabled employee would be given the transfer. 

The Equal Employment Opportunity Commission filed suit arguing that the ADA, which specifically includes “reassignment to a vacant position” as a possible reasonable accommodation, requires employers to reassign disabled employees to vacant positions for which they are qualified, even if a more qualified nondisabled person applies, unless the employer can show this would create an undue hardship.  This argument had previously been rejected by the Seventh Circuit and the EEOC requested reconsideration in light of a U.S. Supreme Court decision, U.S. Airways, Inc. v. Barnett.

In Barnett, the employee had injured his back at work and, using his seniority status instead of his disability status, transferred to a mailroom position.  Later, when more senior employees sought transfer to that position, he claimed he should be able to keep the position as a reasonable accommodation under the ADA.  The Supreme Court noted that giving a preference to the employee with a disability, even if it violates a rule others must obey, does not by itself automatically make it unreasonable.

The court created a two-step approach when a reasonable accommodation in the form of job reassignment is asserted to violate an employer’s rule prohibiting it.  First, the employee must show the accommodation is reasonable in the general run of situations.  Second, if it is, the employer must show it would be an undue hardship to reassign the employee in that specific situation.  Even if the employee cannot show the accommodation is generally reasonable, the employee can still win by showing the accommodation is reasonable under the specific circumstances. 

Although employers in the Seventh Circuit should review their policies based on this ruling, they should also remember that reassignment to a vacant position need not automatically be granted.  In order to be required under the ADA, an employee must first be a qualified individual with a disability.  Even if an employee is covered under the ADA, there may also be other options that qualify as a reasonable accommodation, such as a job modification that permits the employee to remain in the current position.  This case also does not alter the fact that the ADA does not require employers to create new positions, promote disabled employees to higher-level positions, or place them in a position for which they are not qualified.

If you have questions about how this may affect you or your business, please contact a member of the Labor and Employment Practice Group at Bingham Greenebaum Doll LLP.

To learn more about Philip C. Eschels and his practice, visit his profile.

  • Partner

    Phil is a partner and former co-chair of the Labor and Employment Department. He represents employers in defending against employment-related claims in both federal and state courts. He represents clients involving covenants not ...



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