Title I of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12111 et seq.
(ADA), requires employers to “mak[e] reasonable accommodations to the known
physical or mental limitations of an otherwise qualified individual with a disability.”
42 U.S.C. § 12112(b)(5)(A). The statute expressly lists “reassignment to a vacant
position” as a “reasonable accommodation.” Id. § 12111(9)(B). The Equal
Employment Opportunity Commission (EEOC) has issued regulations implementing
that definition, 29 C.F.R. § 1630.2(o)(2)(ii), and it has interpreted those regulations
to provide that “[t]he employee does not need to be the best qualified individual for
the position in order to obtain it as a reassignment.” The questions presented are:
1. If a disability prevents an employee from performing the essential functions of his
or her current position, does the ADA require:
(a) that the employer reassign the employee to a vacant, equivalent position for
which he or she is qualified, as the Tenth and District of Columbia Circuits have
(b) that the employer merely permit the employee to apply and compete with other
applicants for the vacant, equivalent position for which he or she is qualified, as the
Seventh and Eighth Circuits have held?
2. Is the EEOC’s interpretation of its regulation entitled to deference under Long
Island Care at Home, Ltd. v. Coke, 127 S. Ct. 2339 (2007) — a case decided twelve
days after the Eighth Circuit rendered its decision in this case?