Changing Course, Seventh Circuit Says Transfer Can Be Reasonable Accommodation

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Reversing circuit precedent, the U.S. Court of Appeals for the Seventh Circuit ruled Sept. 7 that the Americans with Disabilities Act requires employers to reassign employees unable to perform their current jobs because of disability to vacant positions for which they are qualified, absent a particularized showing of undue hardship to the employer (EEOC v. United Airlines Inc., 7th Cir., No. 11-1774, 9/7/12).

The Seventh Circuit previously had ruled in EEOC v. Humiston-Keeling ( 227 F.3d 1024, 10 AD Cases 1665 (2000); 18 HRR 1024, 9/25/00) that although the ADA mentions reassignment as a reasonable accommodation, the act does not require an employer to reassign a disabled worker to a vacant job for which there is a better candidate, provided it is the employer's “consistent and honest policy” to select the best-qualified applicant.

The circuit maintained that view even after the U.S. Supreme Court decided US Airways Inc. v. Barnett ( 535 U.S. 391, 12 AD Cases 1729 (2002); 20 HRR 483, 5/6/02), which outlined a two-step, case-specific approach for determining whether reassignment is a reasonable accommodation.

In the case at hand, the Equal Employment Opportunity Commission sued United Airlines under the ADA, challenging the airline's reasonable accommodation guidelines because they provide that reassignment is “competitive” and a qualified disabled worker would not necessarily receive the job at issue if a more qualified candidate were available.

A federal district court granted United's motion to dismiss, reasoning that Humiston-Keeling was directly on point and had not been overruled by the Seventh Circuit. In March 2012, the Seventh Circuit affirmed that based on circuit precedent, United's accommodations policy did not violate the ADA (30 HRR 267, 3/12/12). But the panel also recommended that the full Seventh Circuit should reconsider Humiston-Keeling. EEOC subsequently sought rehearing by the full court.

Precedent Undermined by Barnett.

After polling the Seventh Circuit's active judges, the court did not grant rehearing by the full court. Instead, the Seventh Circuit panel without objection from any circuit judge issued a new opinion stating that Humiston-Keeling is no longer good law in light of Barnett.

“The Supreme Court has found that accommodation through appointment to a vacant position is reasonable” under the ADA, Judge Richard D. Cudahy wrote. “Absent a showing of undue hardship, an employer must implement such a reassignment policy,” the court said.

Reinstating EEOC's suit, the Seventh Circuit said on remand that the district court should consider whether mandatory reassignment of a disabled worker unable to perform his current job is “ordinarily, in the run of cases, a reasonable accommodation.” If so, the lower court then should determine if “fact-specific circumstances particular to United's employment system” exist that “would create an undue hardship and render mandatory reassignment unreasonable.”

Circuit Conflict on Issue.

United argued that the Seventh Circuit should not abandon Humiston-Keeling, in part because the U.S. Court of Appeals for the Eighth Circuit relied on that opinion in deciding Huber v. Wal-Mart Stores Inc. ( 486 F.3d 480, 19 AD Cases 484 (8th Cir. 2007)), which held that the ADA does not require reassignment of a disabled employee to a vacant position (25 HRR 632, 6/11/07).

But the Eighth Circuit's “wholesale adoption of Humiston-Keeling has little import” as the Eighth Circuit relied on the case “without analysis, much less an analysis of Humiston-Keeling in the context of Barnett,” Cudahy wrote.

In any event, two other federal circuits have determined the ADA requires employers to reassign disabled employees to vacant positions for which they are qualified, provided such accommodation would not create undue hardship or violate a collective bargaining agreement, Cudahy wrote. He cited with approval Smith v. Midland Brake Inc. ( 180 F.3d 1154, 9 AD Cases 738 (10th Cir. 1998)) and Aka v. Washington Hospital Center ( 156 F.3d 1284, 8 AD Cases 1093 (D.C. Cir. 1998)).

“We feel that in light of Barnett,” the Seventh Circuit “must adopt a similar approach,” Cudahy wrote.

By Kevin P. McGowan  


Text of the opinion is available at http://op.bna.com/dlrcases.nsf/r?Open=kmgn-8xwlpj.