One form of accommodation under the Americans with Disabilities Act involves reassignment to a vacant available position of a disabled employee who can no longer perform the essential functions of his or her current job. However, federal appellate courts have differed on whether the disabled employee must be given the alternative position over other better qualified applicants for the job.

The Seventh and Eighth Circuits have concluded that there is no right of automatic assignment under the ADA, while the Tenth and D.C. Circuits have ruled that the disabled employee must be placed into the alternative job without having to compete against other applicants for the position.

Last week, a Seventh Circuit panel refused to reverse its position on this issue. In EEOC v. United Airlines, Inc., the Equal Employment Opportunity Commission urged the court to change its earlier position based on its reading of a 2002 U.S. Supreme Court case. The Seventh Circuit panel declined, finding no compelling reason to reverse its prior reasoning. However, the panel strongly urged the full Seventh Circuit to hear the case en banc to determine if the prior decision is consistent with the ADA.

In 2007, the Supreme Court accepted review of a case that was expected to resolve this issue. However, that case was settled before oral arguments were held. Unless the Supreme Court grants review to another case, the answer to whether reassignment is automatic under the ADA will continue to depend on the federal circuit where the employee works.