ADA Does Not Require Employer to Reassign Disabled Worker to Vacant Job, Court Rules

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By Kevin P. McGowan  

The U.S. Court of Appeals for the Seventh Circuit March 7 ruled the Americans with Disabilities Act does not require employers to reassign employees who lose their current jobs because of disabilities to other vacant jobs they are qualified to perform (EEOC v. United Airlines Inc., 7th Cir., No. 11-1774, 3/7/12).

The Equal Employment Opportunity Commission had sued United Airlines under the ADA, challenging the airline's reasonable accommodation guidelines. Those guidelines said that while “transfer to an equivalent or lower-level vacant job” may be a reasonable accommodation for an employee unable to perform his or her current job because of disability, the reassignment process is “competitive”and the disabled employee will not automatically receive the vacancy if a better-qualified candidate applies.

EEOC contended that United's policy violates the ADA, which the commission argued requires an employer to reassign a disabled worker to a vacant job for which he is qualified. A federal district court granted United's motion to dismiss, citing the Seventh Circuit decision in EEOC v. Humiston-Keeling(227 F.3d 1024, 10 AD Cases 1665 (2000)) for the principle that an employer's competitive transfer policy does not violate the ADA.

EEOC argued on appeal that the U.S. Supreme Court decision in US Airways Inc. v. Barnett(535 U.S. 391, 12 AD Cases 1729 (2002)) undermines Humiston-Keeling and that the Seventh Circuit should change its interpretation of the ADA. The commission asserted that the law requires as a reasonable accommodation the reassignment of a disabled worker over a more qualified nondisabled candidate if the disabled individual is “at least minimally qualified”for the job and the employer cannot prove undue hardship.

Affirming the judgment for United, a Seventh Circuit panel said Humiston-Keeling remains good law, but it also strongly suggested review of the issue by the full court.

“EEOC's interpretation may in fact be a more supportable interpretation of the ADA, and here we think that this is likely,” Judge Richard D. Cudahy wrote. However, he said, since the Seventh Circuit previously has ruled the Supreme Court's decision in Barnett did not undercut the ADA interpretation in Humiston-Keeling, the appeals panel will adhere to Humiston-Keeling.

Federal Circuits Are Split.

The issue before the Seventh Circuit has split the federal appeals courts, with the Tenth Circuit in Smith v. Midland Brake Inc. (180 F.3d 1154, 9 AD Cases 738 (10th Cir. 1998)) and the District of Columbia Circuit in Aka v. Washington Hospital Center(156 F.3d 1284, 8 AD Cases 1093 (D.C. Cir. 1998)) holding the ADA requires reassignment of disabled employees to vacant positions for which they are qualified.

In Huber v. Wal-Mart Stores Inc. (486 F.3d 480, 19 AD Cases 484 (8th Cir. 2007)), however, the Eighth Circuit cited Humiston-Keelingwith approval and followed the Seventh Circuit in ruling that reassignment may be a reasonable accommodation, but the ADA does not require that step if a more qualified candidate is available.

The Supreme Court granted review in Huber, but the parties settled the case before oral argument.

Any Change Requires Full Court Review.

EEOC argued that the Seventh Circuit should adopt the ADA interpretation favored by the Tenth and D.C. circuits that the act requires reassignment of a disabled employee to a vacant job for which he or she is qualified.

“But this argument cannot do much work, for the EEOC is merely returning to its position that this court in Humiston-Keelingmisinterpreted the ADA,” Cudahy wrote. “Instead, the EEOC must show this court's established interpretation of the ADA in Humiston-Keeling is no longer viable after Barnett.”

Only the full Seventh Circuit can overturn circuit precedent, and the panel recommended en banc consideration of the present case to consider EEOC's arguments for doing so.

But as Humiston-Keeling is “still good law and directly on point,” the district court “rightly concluded”the ADA “does not require employers to reassign employees, who will lose their current positions due to disability, to a vacant position for which they are qualified,” the appeals court ruled.

By Kevin P. McGowan  

Text of the opinion is available at