The Corporate Counselor
The United States Court of Appeals for the Seventh Circuit recently ruled in EEOC v. United Airlines, Inc., No. 11-1774 (March 7, 2012) that the Americans with Disabilities Act (ADA) does not require employers to reassign disabled employees to vacant positions for which they are qualified if better qualified candidates apply and it is the employer's "consistent and honest" policy to hire the best qualified applicant. This decision was in keeping with prior Seventh Circuit precedent in cases like EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000). The issue has split the federal appeals courts, with the Tenth and District of Columbia (D.C.) Circuits holding that the ADA requires reassignment; the First, Third, Fifth and Federal Circuits holding that reassignment may be required if the employee shows "special circumstances"; and the Eighth Circuit simply holding that reassignment is not required.
The Seventh Circuit's Decision in United Airlines
The policy at issue in United Airlines required disabled employees to follow a competitive transfer process if they needed reassignment to accommodate their disabilities. Although this process gave disabled employees "a preference" for the position when they were equally qualified with another applicant, the competitive nature of the process allowed United Airlines to fill vacant positions with other, more qualified applicants instead of disabled employees. The EEOC filed suit to challenge this policy in May 2009 on behalf of five disabled employees. The District Court for the Northern District of Illinois granted United Airlines' motion to dismiss under the rationale that controlling Seventh Circuit precedent, as announced in Humiston-Keeling, does not require the reassignment of a disabled employee. On appeal, the EEOC argued that the Supreme Court's decision in US Airways, Inc. v. Barnett, 535 U.S. 391 (2002), undercut Humiston-Keeling, and that Barnett requires that disabled employees be reassigned to vacant positions. The Seventh Circuit disagreed and affirmed the district court's decision. However, because it found the EEOC's argument persuasive, the court recommended en banc review to consider whether the EEOC's position was correct.
Barnett and the Circuit Split
In Barnett, the Supreme Court ruled that a request for reassignment was not automatically unreasonable simply because it would provide a preference to a disabled employee in violation of a seniority system...
