Wednesday, September 12, 2012

7th Circuit Holds Reassignment to Vacant Position is Reasonable Accommodation Under Americans with Disabilities Act

The Court of Appeals for the Seventh Circuit recently issued a decision holding that the Supreme Court's ruling in U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002) overrules precedent set in EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000), which held that the Americans with Disabilities Act (ADA) did not require employers to appoint employees who are losing their current positions due to disability to a vacant position for which they are qualified.

In overturning their previous precedent, the 7th Circuit held:
We reverse and hold that the ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accom- modations would be ordinarily reasonable and would not present an undue hardship to that employer.
The case, EEOC v. United Airlines Inc.No. 11-1774,  stemmed from the EEOC's issue with United Airlines accommodation policy which stated that “transfer . . . [to] an equivalent or lower-level vacant position” may be a reasonable accommodation, the guide- lines specify that the transfer process is competitive. Accordingly, employees needing accommodation will not be automatically placed into vacant positions but instead will be given preferential treatment.  The EEOC believed the Supreme Court's ruling in Barnett required employers to reassign disabled employees needing accommodation into positions they were qualified for so long as it was reasonable and did not pose an undue hardship to the employer.  The district court did not agree with the EEOC and dismissed the case pursuant to FRCP Rule 12(b)(6).

The 7th Circuit was careful to note that some employers, in making reassignment decisions and transfers, use a seniority system and noted that an employer can state the reassignment may be reasonable in the presence of a seniority system--but did not create a per se rule noting an employee can point to "special circumstances" warranting the reassignment even in the presence of a seniority system.

With respect to employers with a "best hire" practice (i.e., choosing the best candidate over the employee needing an accommodation), the Court held that the violation of a best-qualified selection policy does not involve the property-rights and administrative concerns (and resulting burdens) presented by the violation of a seniority policy.  For this reason, the Court held that it erred in a 2002 decision in Mays v. Principi, 301 F.3d 866 (7th Cir. 2002) that held that an employer did not violate the duty of reasonable ac- commodation in the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq., by giving an administrative nursing position to a better qualified applicant, rather than to a disabled employee needing reassignment.

The 7th Circuit remanded this case back to the district court with the following instructions in following Barnett:
On remand, the district court must conduct the Barnett analysis. In this case, the district court must first consider (under Barnett step one) if mandatory reassignment is ordinarily, in the run of cases, a reasonable accommodation.3 Assuming that the district court finds that mandatory reassignment is ordinarily reasonable, the district must then deter- mine (under Barnett step two) if there are fact-specific considerations particular to United’s employment system that would create an undue hardship and render manda- tory reassignment unreasonable.
Luckily for the plaintiff in the case, United has no seniority system for reassignments so the first step will be easy to deal with and the second step requires the employer to show some sort of special consideration that would make the accommodation unreasonable.

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