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Should disabled workers automatically be moved into vacant jobs?

Here in Wisconsin, and throughout the U.S., the Americans with Disabilities Act generally requires employers to move workers who may lose their jobs because of disabilities into vacant positions for which they are qualified. This is a very important protection under federal employment law, because a disability can strike an American worker at any time and this should not automatically result in job loss.

Nonetheless, sometimes employers misinterpret this law, which results in very difficult and unfair consequences for disabled workers. A 12-year-old case that was recently revived by the Equal Employment Opportunity Commission shows us the importance of this ADA provision.

The case involves United Continental airline, which in 2003 began what has been described as a "competitive transfer" policy in order to reposition disabled workers. Under this policy, disabled workers are not automatically placed into vacant positions, but a disabled worker has preferential treatment over non-disabled workers for positions. This means if a qualified disabled worker and a qualified non-disabled worker apply for the same job, the disabled worker will receive it.

The EEOC has argued that this policy violates the Supreme Court's interpretation of the ADA, which requires disabled workers to be placed into open positions--not to compete for them.

In 2000, the 7th Circuit said that the ADA did not have the requirement that the EEOC brought up. But just yesterday, a panel of judges overruled this decision and sent it to a U.S. district judge to review United Continental's policy.

The panel of judges agreed with the Supreme Court's view that it is reasonable to ask employers to accommodate disabled workers by moving them into vacant positions.

The Americans with Disabilities Act is a complicated area of law. When an employer does not understand its obligations under the law, or ignores these requirements, disabled workers need advocates to stand up for their rights.

Source: Reuters, "EEOC lawsuit vs United Air on disabled workers revived," Jonathan Stempel, Sept. 7, 2012

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