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eLABORate: Seventh Circuit Alters the ADA Landscape by Reversing Its Precedent on Job Reassignment

September 17, 2012

In EEOC v. United Airlines, Inc., No. 11-1774, 2012 WL 3871503 (7th Cir. Sept. 7, 2012), the United States Court of Appeals for the Seventh Circuit held that the Americans with Disabilities Act ("ADA") requires as a reasonable accommodation that employers reassign disabled employees to vacant positions for which they are at least minimally qualified, absent a particularized showing of undue hardship. In doing so, the court overruled its prior decision in EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000), which held that an employer was not required to reassign a disabled employee to a vacant position for which there was a better candidate, provided that the employer had a "consistent and honest policy" of hiring the best candidate for the job.

In United Airlines, the employer set out Reasonable Accommodation Guidelines stating that, while reassignment may constitute a reasonable accommodation, the transfer process was competitive. Under the policy, therefore, employees needing accommodation would not be automatically reassigned to vacant positions over more qualified candidates, but would receive priority consideration over similarly-qualified candidates. EEOC filed suit alleging that United Airlines' policy violated the ADA, which includes "reassignment to a vacant position" as a possible reasonable accommodation. EEOC argued that the ADA's inclusion of reassignment as a reasonable accommodation should be interpreted to require reassignment to a vacant position for which the disabled employee meets the minimum qualifications, even if other candidates are more qualified.

The employer relied primarily on the court's previous holding in Humiston-Keeling to argue that the ADA contained no such requirement. In Humiston-Keeling, the plaintiff worked as a picker in a warehouse. When a bad case of tennis elbow prevented her from being able to perform the lifting functions of her job, she accepted her employer's offer of reassignment to a greeter position at a construction site. That position disappeared when the construction was completed, however, and she applied for several vacant clerical positions for which she was qualified. When each of those positions was filled by a better candidate, she was terminated by the employer.

The court found that the ADA did not require as a reasonable accommodation that the employer hire the plaintiff over more qualified candidates, noting that there is a principled difference between requiring employers "to clear away obstacles to hiring the best applicant for a job, who might be a disabled person or a member of some other statutorily protected group, and requiring employers to hire inferior (albeit minimally qualified) applicants merely because they are members of such a group." The court described the latter position espoused by EEOC as "affirmative action with a vengeance."

In United Airlines, EEOC countered the employer's reliance on Humiston-Keeling by arguing that, in light of the United States Supreme Court's decision in U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002), Humiston-Keeling was no longer good law. In Barnett, the plaintiff injured his back and invoked seniority rights to transfer to a less physically demanding mailroom position. When he later learned that employees senior to him intended to bid for his mailroom position, he asked the employer to make an exception to its seniority system and allow him to remain in the position as a reasonable accommodation. The employer decided not to make the exception, the plaintiff was terminated, and he eventually brought suit under the ADA.

The employer argued that a seniority system virtually always trumps a conflicting accommodation request, because the ADA is intended to ensure equal treatment of disabled employees, not to give preference over non-disabled employees. The Court rejected the employer's argument, stating that it failed to recognize that "preferences will sometimes prove necessary to achieve the Act's basic equal opportunity goal." According to the Court, the idea of preferential treatment is embedded in the ADA's requirement that employers reasonably accommodate disabled employees. Therefore, the mere fact that an accommodation would provide a preference, in and of itself, cannot show that an accommodation is not reasonable.

The Court similarly rejected the plaintiff's argument—which sought to rely on EEOC's ADA regulations and enforcement guidance on reasonable accommodations—that the existence of a seniority system can never show that reassignment as an accommodation is not reasonable. Rather than ascribing to either of the parties' "polar opposite" views, the Court set out a two-step, case-specific framework. First, the plaintiff need only show that the requested accommodation "seems reasonable on its face, i.e., ordinarily or in the run of cases." The second step depends on whether the plaintiff is able to make this first-step showing. If the requested accommodation is reasonable in the run of cases, the burden shifts to the employer to make a particularized showing of undue hardship under the circumstances. If the accommodation is not reasonable in the run of cases, the plaintiff may nevertheless prevail by showing that special circumstances warrant a finding that the requested accommodation is reasonable under the particular facts of the case.

While the Court determined that it would not ordinarily be reasonable to require an employer to violate its seniority system in order to accommodate a disabled employee, there are no categorical exceptions for seniority systems under the two-step approach. The Court, therefore, remanded the case for a determination of whether the plaintiff was able to show special circumstances demonstrating that the requested accommodation was reasonable under the particular facts.

In United Airlines, the Seventh Circuit adopted the Supreme Court's two-step approach and remanded the case for further consideration of the employer's transfer process, making it clear that "Humiston Keeling did not survive Barnett." It specifically rejected the employer's argument, borrowed from Humiston-Keeling, that the ADA is "not a mandatory preference act." The court noted that, as explained in Barnett, preferences will sometimes prove necessary under the ADA. As a result, the mere existence of an employer's disability-neutral rule—whether it be a seniority system or a consistently applied policy of hiring the most qualified candidate—cannot defeat a disabled employee's request for reassignment to a vacant position for which he or she is qualified, absent a particularized showing of undue hardship.

Although the court's holding obviously changes the landscape within the Seventh Circuit, its implications could potentially have broader reach. For instance, the decision brings the Seventh Circuit's stance closer to Tenth Circuit authority and EEOC's own enforcement guidance that already interpret the ADA to require reassignment where the disabled employee meets the minimum qualifications for the position. The Seventh Circuit now stands at odds with the Eighth Circuit, which explicitly adopted the reasoning in Humiston-Keeling. Whether the United Airlines case will lead to a Supreme Court review of the issue of reassignment under the ADA remains to be seen. That uncertainty, plus the lack of a clear majority of circuit precedent, makes the broader impact of the court's decision in United Airlines unclear. Regardless, EEOC's view is pretty clear from its position in the litigation and its regulatory and sub-regulatory documents, and that will be what employers must deal with in charge investigations by EEOC. Thus, employers in all circuits should examine United Airlines to determine the defensibility of their disability-neutral policies regarding transfer.