News & Knowledge
Seventh Circuit Reverses Its Precedent on Job Reassignment as a Reasonable Accommodation
Originally published in Employment & The Law - Fall 2012
Evan H. Pontz
In EEOC v. United Airlines, Inc., the United States Court of Appeals for the Seventh Circuit recently held that the Americans with Disabilities Act (the "ADA") "mandate(s) that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer." This decision reverses the court’s decision in EEOC v. Humiston-Keeling, which held that if an employer has a consistent policy of hiring the best candidate for the job, the employer is not required to reassign a disabled employee to a vacant position for which there was a more-qualified candidate. In overruling this precedent, the court has changed the landscape for employers in the Seventh Circuit (which covers Illinois, Indiana and Wisconsin), and possibly beyond.
In 2003, United set out Reasonable Accommodation Guidelines for accommodating employees who, because of a disability, could no longer perform the essential functions of their jobs, even with reasonable accommodations. While the guidelines indicated that reassignment to an equivalent or lower-level position may be available as a reasonable accommodation, they also noted that the transfer process was competitive. Thus, employees would not automatically be reassigned to vacant positions over more qualified candidates. Rather, they would receive priority consideration over similarly-qualified candidates. In other words, if two candidates were equally qualified, the disabled employee seeking accommodation would get the job.
The EEOC filed suit and challenged United’s policy as violating the ADA. In essence, the EEOC claimed that the ADA required employers to move disabled workers to vacant jobs for which they were qualified, regardless of whether similarly-qualified candidates were in line. Following the authority of Humiston-Keeling, the district court dismissed the EEOC’s complaint. The EEOC appealed, arguing that Humiston-Keeling had been overruled by the Supreme Court’s decision in U.S. Airways, Inc. v. Barnett.
In Barnett, the Supreme Court considered reassignment as an accommodation in the context of an established seniority system, and outlined a two-step, case-specific approach for analyzing such cases. In the first step, the employee must show that the requested accommodation seems reasonable "in the run of cases." If the employee shows that the requested accommodation is reasonable on its face, the burden shifts to the employer to show that providing that accommodation would present an undue hardship. Under the facts of Barnett, the Supreme Court held that reassignment would violate the employer’s seniority system, and that violation of a seniority system would not be reasonable in the run of cases. However, while the Supreme Court determined that it would not ordinarily be reasonable to require an employer to violate a seniority system to accommodate a disabled employee, it did not create a per se exception. Instead, the Court held that where an accommodation might not be reasonable in the run of cases, a plaintiff may still prevail by showing that special circumstances warrant a finding that the requested accommodation is reasonable under the particular facts of the case.
In United Airlines, the EEOC argued that Barnett overruled Humiston-Keeling’s holding that an employer can decline reassignment as an accommodation in favor of hiring a more qualified candidate for a vacant position as long as it followed a disability-neutral policy. The EEOC also argued (and the Seventh Circuit ultimately agreed), that a best-qualified candidate policy, such as the one maintained by United, was not the functional equivalent of a seniority system in terms of the burdens that an employer might experience in deviating from that policy to give preference to a qualified disabled employee seeking reassignment. United, on the other hand, argued that the ADA is not a mandatory preference law, but merely a non-discrimination statute, and that an employer should not be required to violate a disability-neutral rule by giving preference to a less-qualified candidate as an accommodation.
The Seventh Circuit found that Barnett specifically rejected United’s interpretation of the ADA, and that the airline’s argument failed to recognize that "preferences will sometimes prove necessary to achieve the [ADA]’s basic equal opportunity goal." Accordingly, the fact than an employer maintains a neutral rule, such as a consistent policy of hiring the most qualified candidates for jobs, cannot defeat a disabled employee’s request for reassignment to a vacant position for which he or she is qualified, unless the employer can show that the reassignment is an undue hardship. Based upon this analysis and holding, the Seventh Circuit remanded the case to the district court to conduct the two-step Barnett analysis and determine whether mandatory reassignment would, in the run of cases, be a reasonable accommodation and, if so, whether there are fact-specific considerations particular to United’s employment system that would create an undue hardship if it was required to make the requested accommodation.
While the ruling changes Seventh Circuit precedent, it remains to be seen whether the case will have broader implications and whether United will pursue Supreme Court review. The Seventh Circuit noted that its adoption of this standard puts it closer in line with Tenth and D.C. Circuit authority, while the Eight Circuit has adopted and continues to adhere to the reasoning of Humiston-Keeling. While there is a split in authority among the courts, the EEOC’s position that reassignment to a vacant position constitutes a reasonable accommodation is clear. Accordingly, employers should examine the defensibility of their disability-neutral policies regarding reassignment of disabled employees.
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