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.
Circuit courts had been evenly divided on whether an individual with a disability is entitled to that vacant position—a “mandatory preference” — or must compete with other candidates for it. The Seventh Circuit has now changed its position to join the “mandatory preference” view. Considering its earlier position in light of the 2002 United States Supreme Court decision in U.S. Airways, Inc. v. Barnett, the Seventh Circuit held “that 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.” EEOC v. United Airlines, Inc., (7th Cir. September 7, 2012).
The Tenth and D.C. Circuits also hold the “mandatory preference” view. The Eighth Circuit is the lone circuit to take the “opportunity to compete” view. In 2008, the United States Supreme Court was to resolve the issue by reviewing the an Eighth Circuit decision but dismissed the case as moot when the parties settled their dispute. Eventually, this issue will percolate up to the Supreme Court again. Until then, circuit matters.