Employment Law, Publications

The Seventh Circuit Re-Examines the "Reassignment" Remedy Under the ADA

May 1, 2012

The Americans with Disabilities Act of 1990 (ADA, 42 U.S.C. § 12101 et seq.) prohibits an employer from discriminating against an individual with a disability who, with a reasonable accommodation, can perform the essential functions of a job, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the employer’s business.

Such an “accommodation” can include the reassignment of the disabled person to a vacant position within the employer’s workplace for which the disabled person is qualified.  42 U.S.C. § 12111(a)(B).

In the case of EEOC v. United Airlines, Inc., 2012 U.S. App. LEXIS 4713 (7th Cir. 2012), the Seventh Circuit Court of Appeals recently revisited the issue of whether, as the Equal Employment Opportunity Commission contended, the ADA makes such a reassignment remedy mandatory for employers, requiring them to grant a preference to a disabled person over a more qualified non-disabled person, so long as the disabled candidate is at least minimally qualified to do the job.  The only exception to the reassignment requirement, per the urging of the EEOC, is if the remedy were to pose an undue hardship for the employer, thereby making the accommodation less than “reasonable.”  In rejecting the EEOC’s aforementioned interpretation of the ADA, the Seventh Circuit noted that United Airlines, in its Reasonable Accommodation Guidelines, provided accommodation for employees who, because of their disabilities, could no longer perform the essential functions of their current jobs, even with reasonable accommodations being made.  The United Guidelines provide that the employee seeking a reassignment as an accommodation must compete for the position, meaning that even though the disabled employee would receive priority consideration over a similarly qualified applicant, the disabled employee would not be automatically placed into a vacant position.

The EEOC claimed that United’s policy violates the ADA because of its competitive transfer policy, but the district court disagreed, granting summary judgment in favor of the employer, based largely upon a prior Seventh Circuit decision, EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024 (7th Cir. 2000), which had held that the “ADA does not require an employer to reassign a disabled employee to a job for which there is a better applicant, provided it’s the employer’s consistent and honest policy to hire the best applicant for the particular job in question.”  Id. at 1029.

In the United case, the EEOC contended that an intervening opinion of the United States Supreme Court, decided two years after Humiston-Keeling, called this Seventh Circuit precedent into question to the extent that it should not have been relied upon as binding by the Court of Appeals in the United case.

The Supreme Court case in question was U.S Airways, Inc. v. Barnett, 535 U.S. 391, 122 S. Ct. 1516, 152 L.Ed.2d 589 (2002), in which the Supreme Court examined an employer’s seniority program in light of a reassignment remedy under the ADA.  There, the court held that if a requested accommodation in the form of a reassignment of the disabled employee would conflict with the employer’s well-established seniority system, the accommodation would not be considered as “reasonable” under the ADA, thereby entitling the employer to summary judgment.  If, however, the employee could present evidence of special circumstances justifying an exception to the employer’s seniority rule, such a showing would defeat the employer’s summary judgment motion.  In Barnett, a U.S. Airways employee who had injured his back while working as a cargo handler reapplied for a mailroom position that was less physically demanding.  This position was subject to a seniority-based bidding process, so when someone with more seniority than the plaintiff made a bid for the position, the plaintiff lost his job.  He sued his employer under the ADA for its failure to accommodate his disability, but the district court held that making an exception in favor of the plaintiff to his employer’s seniority-based reassignment plan would cause undue hardship for the company. It  thereby granted summary judgment for the employer.  The Ninth Circuit Court of Appeals reversed, finding that the employer’s seniority system was only one factor in the “undue hardship” analysis, and that a case-by-case, fact-intensive analysis was needed to determine whether the plaintiff’s reassignment would indeed create an undue hardship for the employer.

On writ of certiorari, the Supreme Court vacated the Ninth Circuit’s reversal and remanded the case for further consideration under the following criteria:  the existence of an established seniority system that will conflict with the reassignment of a disabled employee is ordinarily enough to show that the requested accommodation is not “reasonable” under the ADA, thereby entitling the employee to summary judgment unless there is more.  The employee is then free to present evidence of special circumstances so as to render “reasonable” a requested exception to the seniority rule in a particular case, and such a showing will defeat an employer’s motion for summary judgment.  585 U.S. at 405, 122 S. Ct. at 1525, 152 L.Ed.2d at 605.

In its analysis of the United Airlines case, the Seventh Circuit admitted that while the Supreme Court’s decision in Barnett may warrant a re-examination of the holding in Humiston-Keeling, there was nothing in the Supreme Court’s Barnett opinion that would justify a deviation from the Seventh Circuit’s prior holding in Humiston-Keeling to the effect that nothing in the ADA requires an employer to reassign its employee, who cannot perform his or her current position due to a disability, to a vacant position for which he or she would be qualified.  This is especially true when an established company policy, such as a seniority-based bidding process for the other job, or a competitive transfer scheme such as that found in the United Airlines plan, conflict with the disabled employee’s request for reassignment as an accommodation to his or her disability.

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