On May 28, 2013, the Supreme Court denied certiorari in United Airlines v. EEOC, a case arising from the Seventh Circuit. EEOC v. United Airlines, Inc., No. 11-1774 (7th Cir. 2012)(cert. denied). (EEOC v. United Airlines) The issue in United Airlines was whether the Americans with Disabilities Act (“ADA”) requires an employer to reassign a disabled employee to a vacant position that would have otherwise been filled by a competitive process. According to the ADA, a reasonable accommodation may include reassignment to a vacant position. U.S. Equal Employment Opportunity Commission – Disability Discrimination. (EEOC - Disability Discrimination) A recent news article discussed the Circuit’s different views on this issue. Kimberly Y. Atkins, Jury’s Still Out on Whether Vacant Post is Accommodation, The Daily Record–Lawyers USA, June 3, 2013 at 11A. The Seventh Circuit, Tenth, and D.C. Circuits all follow the same approach. Id. These Circuits require employers to shift a disabled individual to an open position rather than waiting for there to be a competitive process. Id. The rule adopted by the Seventh Circuit states, “the ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer.” Id. The remaining Circuits Courts follow the approach from Huber v. Wal-Mart Stores, a 2007 Eighth Circuit case. Id. The Eighth Circuit, relying on EEOC v. Humiston-Keeling, held that an employer did not violate the ADA when it made a disabled worker apply for reassignment to a vacant position and then selected a non-disabled person who was more qualified for the job. Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 483 (8th Cir. 2007). But, does the Fourth Circuit actually follow this approach? Jackson v. Fujifilm Manufacturing is the most recent Fourth Circuit case relating to this issue, a 2011 case arising from the US District Court of South Carolina that made its way to the Fourth Circuit Court of Appeals. The District Court found that the Fourth Circuit had not addressed whether the ADA requires an employer to give a current disabled employee preference in filling a vacant position when the employee is able to perform the job duties but is not the most qualified candidate. Jackson v. Fujifilm Mfg. USA, Inc., 2011 U.S. Dist. LEXIS 13426 (U.S. Dist. Ct. of S.C. Feb. 7, 2011). The District court cited Huber in its decision, which is the likely cause of the news article associating the Fourth Circuit as a follower of the Eighth Circuit. In reality, it appears as though the Fourth Circuit has no clear-cut law with regards to this issue. In the Fujifilm case, the employer prevailed because the employee failed to show that the employer did not attempt to provide him with reasonable accommodations. Jackson v. Fujifilm Mfg. USA, Inc., 2011 U.S. Dist. LEXIS 13426 (citing Jackson v. Fujifilm Mfg. USA, Inc., 2010 U.S. Dist. LEXIS 141130 (U.S. Dist. Ct. of S.C. June 18, 2010)). The Fourth Circuit affirmed this finding. Jackson v. Fujifilm Mfg. USA, Inc., 447 F. App’x 515, 2011 U.S. App. LEXIS 19909 (4th Cir. 2011). The issue of whether the employer violated the ADA by not providing disabled individuals were priority in reassignment. For the time being, the law regarding whether an employer has to provide a transfer to a disabled employee to a vacant position for which s/he qualifies remains uncertain in the Fourth Circuit.
