When an employee cannot perform the essential functions of his or her position, with or without an accommodation, due to a disability, an employer must consider “the accommodation of last resort”—transfer to a vacant lateral or lower position for which the employee is qualified.

The circuit courts have split on whether an individual with a disability is entitled to that vacant position or must compete for it. The Tenth and D.C. Circuits have held that an individual is entitled to it. The Seventh and Eighth Circuits have held an employer may require the disabled employee to compete for it. In 2007, the United States Supreme Court agreed to review an Eighth Circuit decision on the issue, but the Court dismissed the case when the parties settled their dispute. Huber v. Wal-Mart (8th Cir.2007).

 In 2009, the EEOC sued United Airlines over its policy which required individuals with a disability to compete for a vacant position. Likely seeking a favorable venue and perhaps to avoid Seventh Circuit precedent, the EEOC sued in San Francisco but that court granted United’s motion for a change of venue to Illinois. The EEOC urged the Seventh Circuit to reverse its position. Rejecting the EEOC’s argument, the Seventh Circuit panel reiterated, yet again, that a policy requiring a disabled employee to compete for a vacant position does not violate the ADA, but urged the EEOC to request an en banc review. EEOC v. United Airlines, Inc. (7th Cir. 3/7/12).

Eventually, this issue will percolate up to the Supreme Court again. Until then, circuit matters.