Publications: Full 7th Circuit may decide to reconsider a key ADA ruling

Does the federal Americans With Disabilities Act (ADA) require an employer to reassign a disabled employee to a vacant job the employee is qualified to perform, even if a better qualified candidate applies?

A panel of the 7th U.S. Circuit Court of Appeals recently reaffirmed that it does not, at least in Illinois, Indiana and Wisconsin, but strongly suggested that en banc review of the issue is advisable. EEOC v. United Airlines, Inc. No. 11‐1774 (March 7, 2012).

The ADA mandates that employers reasonably accommodate the disabilities of otherwise qualified employees, unless the accommodation poses an “undue hardship.”

As a result this mandate, the Equal Employment Opportunity Commission (EEOC) challenged United Airlines’ reasonable accommodation guidelines, claiming that they violate the ADA. Specifically, United’s guidelines provided that while “transfer to an equivalent or lower‐level vacant job” might be a reasonable accommodation for a worker unable to perform her current job due to a disability, United’s reassignment process is “competitive” and the disabled employee might be bested by another, better qualified applicant. In the EEOC’s view, however, the qualified, disabled employee should be awarded a preference under the ADA.

United claimed that the 7th Circuit’s 2000 decision in EEOC v. Humiston‐Keeling, 227 F.3d 1024 (7th Cir. 2000), was definitive on the matter. In Humiston‐Keeling, the court ruled that an employerʹs competitive transfer policy does not violate the ADA.

The EEOC countered that the U.S. Supreme Court’s intervening decision in U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002), undercut Humiston‐Keeling. In Barnett, a cargo handler with a bad back invoked seniority under his employer’s policies for a transfer to a mail room job. Two more senior employees bid on the job, however. Barnett claimed that his status as a disabled employee who could perform the mail room job trumped the more senior employees’ claims to the job under the bona fide seniority system.

The Supreme Court conceded that Barnett’s proposed accommodation would be a “preference,” but that such a “preference” would not “automatically show that the accommodation is not reasonable.” The court instead adopted a “case specific approach.” It ultimately decided that while Barnett’s bid for a mail room reassignment was a “reasonable accommodation” under the ADA, running roughshod over seniority rights in this case could be an “undue hardship.” The Supreme Court remanded the case so that the lower courts could consider these issues.

Before the 7th Circuit in United Airlines, the EEOC pointedly noted that U.S. Airways in Barnett had relied heavily on Humiston‐Keeling and that the Supreme Court in Barnett expressly contradicted or questioned Humiston‐Keeling’s language.

According to the EEOC, the Barnett decision rejected an “anti‐preference interpretation” of the ADA because that theory does not recognize that sometimes, the ADA requires preferences to “achieve the actʹs basic equal opportunity goal.”

The federal circuits are split on the issue. The 8th Circuit, in Huber v. Wal‐Mart Stores, 486 F.3d 48 (8th Cir. 2007), previously was the most recent to weigh in. It followed Humiston‐Keeling to find that while reassignment might be a reasonable accommodation, the ADA does
not necessarily require it when a more qualified candidate presents. The 10th Circuit, in Smith v. Midland Brake, Inc. , 180 F.3d 1154 (10th Cir. 1998) and the District of Columbia Circuit in Aka v. Washington Hospital Center, 186 F.3d 1285 (D.C. Cir. 1998), both ruled closer to the EEOC’s position, finding that the ADA mandates the reassignment of disabled employees to vacant positions for which they are qualified.

In ruling for United, the 7th Circuit declined the EEOC’s invitation to, at a minimum, ignore Humiston‐Keeling. That case, the court noted, is “still good law and directly on point.” It accordingly had to be applied.

However, the court continued, the “EEOC’s argument may be persuasive … “ As only the full 7th Circuit can override its own precedents, the United Airlines panel recommended an en banc consideration to determine if Humiston‐Keeling should be deep‐sixed in light of Barnett.

Stay tuned.

Reprinted with permission from the Chicago Daily Law Bulletin.