Seventh Circuit Signals Possible Change in Duty to Reassign Disabled Employee

On March 7, 2012, the United States Court of Appeals for the Seventh Circuit signaled a potential change in its position about the duty to reassign a disabled employee to a vacant position, an issue on which there is a long-standing circuit split.

It has long been clear that reassignment to a vacant position for which a disabled employee is qualified is a reasonable accommodation under the Americans with Disabilities Act (ADA). Generally, reassignment is a reasonable accommodation only when the disabled employee cannot be accommodated in his or her current position, and when a vacant job for which the employee is qualified exists. Employers do not have to bump other employees in order to create a vacancy for the disabled employee, nor do they have to promote an employee into a higher position than he or she formerly held. 

Less clear is whether the disabled employee must compete for the vacant position with other applicants, or whether the employee simply automatically gets the reassignment. The Equal Employment Opportunity Commission (EEOC) takes the position that a disabled employee should get the reassignment if he or she is qualified for it, regardless of whether other employees are also qualified, or even more qualified. The D.C. and Tenth Circuits have also so held. The Seventh and Eighth Circuits, however, have held that where the employer's policy is to hire the most qualified applicant, disabled employees can be made to compete with non-disabled employees for available positions for which they are qualified, describing non-competitive reassignment as "affirmative action with a vengeance." 

In the recent case of EEOC v. United Airlines, a Seventh Circuit panel signaled a possible change in the court's position. In the case, the EEOC argued that the airline's policy of granting disabled employees needing accommodation "preference" in applying for a job transfer (which consists of allowing disabled applicants to submit an unlimited number of transfer applications, being guaranteed interviews and receiving "priority consideration" over similarly qualified applicants), but not automatic assignment to a vacant position, violates the ADA. The EEOC further argued that the Seventh Circuit's existing precedent on the issue—specifically its 2000 EEOC v. Humiston-Keeling decision holding that a competitive transfer policy does not violate the ADA—was undermined by the Supreme Court's 2002 US Airways, Inc. v. Barnett decision.

In Barnett, the Court held that US Airways was not required to reassign an injured employee into a mailroom position when two more senior employees had also bid on the position, explaining that under the circumstances, violation of the seniority system would present an undue hardship to the employer. The Court rejected US Airways' broader argument that it was not required to grant the accommodation because it would violate a disability-neutral rule, noting that "preference will sometimes prove necessary to achieve the [ADA's] basic equal opportunity goal," and instead ruled on the narrower grounds specific to a seniority system.

In this week's decision, the three-judge Seventh Circuit panel assigned to the case affirmed the district court's dismissal and ruled for United based on the precedent set in the Seventh Circuit's prior ruling in Humiston-Keeling, but "strongly recommend[ed] en banc consideration of the present case since the logic of EEOC's position on the merits, although insufficient to justify departure by this panel from the principles of stare decisis, is persuasive with or without consideration of Barnett."

It is very likely that the EEOC will now petition for a rehearing en banc. The standard for granting en banc consideration is:

1. en banc consideration is necessary to secure or maintain uniformity of the court's decision; or 
2. the proceeding involves a question of exceptional importance.

If that petition is granted by a majority vote, all active Seventh Circuit judges plus the senior judge who served on the original panel and authored the opinion will participate in the deliberation. Most of the judges who would participate have voted consistently to uphold Humiston-Keeling. However, because they may have done so solely on stare decisis grounds, employers should not assume they will maintain the same position if the case is reheard en banc.  

This area of law remains unsettled, and employers should take care and seek legal counsel to ensure that their accommodation policies and decisions comply with the laws in their region.