Due to changes resulting from enactment of the ADA Amendments Act of 2008, there has been renewed attention on employers’ obligations to disabled employees under the ADA.
Back in 2000, the 7th Circuit held that employers are not required to reassign disabled employees to a vacant position for which they are qualified. Although the EEOC recently challenged this position in EEOC v. United Airlines, Inc. (No. 11-1774, 7th Cir., 2012), the 7th Circuit held its ground, reaffirming its previous decision.
United Airlines has a “Reasonable Accommodation Guidelines” policy that addresses accommodating employees who, because of a disability, can no longer perform the essential functions of their current jobs. The policy states that transfer to an equivalent or lower-level vacant position may be a reasonable accommodation, but cautions that the transfer process is competitive.
As a result, United will not automatically place a disabled employee into a vacant position. Instead, the airline gives preference to those employees. That means disabled workers can submit an unlimited number of transfer applications, and they are guaranteed an interview. They receive priority consideration over similarly qualified applicants.
The EEOC sued United, claiming its accommodation policy violates the ADA because the law requires employers to reassign disabled employees to a vacant position for which they are qualified.
A district court dismissed the lawsuit, citing 7th Circuit precedent in EEOC v. Humiston-Keeling (227 F.3d 1024, 7th Cir., 2000), in which the federal appeals court held that a competitive transfer policy does not violate the ADA.
No reassignment required
The 7th Circuit affirmed the district court’s decision. The 7th Circuit reasoned that the Humiston-Keeling decision is directly on point.
In Humiston-Keeling, an employee injured her arm and was not able to perform her job, which required lifting. She applied for vacant clerical positions but did not receive any of them.
The EEOC sued the employer, claiming that reassignment was a form of reasonable accommodation, which required the disabled employee to be advanced over a more qualified, nondisabled person if the disabled employee was qualified to do the job and the employer did not suffer undue hardship.
The 7th Circuit rejected the EEOC’s argument, holding that an employer is not required to reassign a disabled employee to a different job if there is a better applicant, as long as the employer’s consistent and honest policy is to hire the best applicant for the job.
In the United case, the 7th Circuit noted that the EEOC would have to convince it to overrule Humiston-Keeling. In order to do so, the EEOC would have to show that Humiston-Keeling was either inconsistent with a Supreme Court decision or was incompatible with a change in the law.
The EEOC argued that the Supreme Court decision, US Airways, Inc. v. Barnett (535 U.S. 391, 2002), undermined Humiston-Keeling.
In Barnett, the Supreme Court considered whether an employer with a seniority system in place was required to reassign a disabled employee to a position that more-senior employees were seeking. Despite its finding that the disabled employee’s request for reassignment was a reasonable accommodation under the ADA, the Supreme Court ruled in favor of the employer because the violation of a seniority system posed an undue hardship.
When deciding United, the 7th Circuit considered Humiston-Keeling in relation to Barnett and did not find a conflict. Accordingly, the 7th Circuit’s continued reliance on Humiston-Keeling compelled the conclusion that the case remained good law and the 7th Circuit was required to follow its precedent in this case.
More judicial review to come?
Although employers may be pleased by this decision, its impact remains to be seen. The 7th Circuit acknowledged that the EEOC’s interpretation of the ADA was persuasive and strongly recommended en banc consideration of the EEOC’s arguments. (An en banc review involves all of an appeals court’s judges, not just a panel. Only the full 7th Circuit can overturn circuit precedent.)
Additionally, the U.S. Supreme Court may take up this issue sometime in the future in order to resolve the existing circuit split.
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