Assume an employee came to you and said that he was unable to do his job because of a disability, but that he could perform the duties of a vacant job in another department. You already have three other applicants for the position, each of whom is more qualified than the disabled employee. What do you do?
According to a new decision by the federal Court of Appeals for the Seventh Circuit, you may have to transfer the less qualified individual with a disability in order to comply with the Americans With Disabilities Act (ADA). In E.E.O.C. v. United Airlines, Inc., decided September 7, 2012, the Court overruled one of its prior decisions which had come to the opposite conclusion. In the new case, the Court explained that the first issue an employer must consider in determining whether it is required to transfer an employee to a vacant position when there are better qualified candidates for the position to consider is whether reassignment in general would be a reasonable accommodation. If it is, then the employer must consider whether there are fact-specific considerations particular to its employment system that would create an undue hardship. If so, then the employer need not transfer the disabled employee to a vacant position for which there are better qualified applicants.
Unfortunately, the Court did not give any guidance to employers as to what “fact-specific considerations” might give rise to an undue hardship. If you are faced with a request by a disabled employee to transfer to a vacant position, and you already have more qualified applicants for the job, you will need to proceed with caution before denying the request for the transfer.