On March 7, 2012, the U.S. Court of Appeals for the Seventh Circuit affirmed dismissal of a case brought by the EEOC challenging the reasonable accommodations guidelines implemented by United Airlines, Inc. (“United”) in Equal Employment Opportunity Commission v. United Airlines, Inc., Case No. 11-1774 (7th Cir. Mar. 7, 2012). The EEOC’s complaint was based on the theory that the Americans With Disabilities Act (“ADA”) requires that an employee who needs a reasonable accommodation must be automatically placed in any vacant position for which the employee is minimally qualified, regardless of the employer’s transfer policies. Id. at 2-3. The Seventh Circuit has long held, however, that the ADA imposes no such requirement. Id. at 3-4.
The decision is noteworthy for employers given that, despite long-standing precedent and the EEOC’s failure to demonstrate that the Seventh Circuit’s prior rulings in similar cases should be reversed, the Seventh Circuit panel “strongly recommend[ed]” further review of the case by all of the judges of the Seventh Circuit - a hearing that is granted only in very limited circumstances. Id. at 11.
Furthermore, it is important for any company facing EEOC-initiated litigation under the ADA.
Factual and Procedural Background
In 2003, United established Reasonable Accommodation Guidelines that set forth the policy for accommodating workers who, because of a disability, were no longer able to perform the essential functions of their current job even with a reasonable accommodation. Id. at 2. The Guidelines emphasized that a transfer could be considered a reasonable accommodation, but that the transfer process was subject to a competitive bid process, meaning that the employee would not automatically be placed into a vacant position. Id. Nonetheless, employees needing an accommodation would be “given preference” in that they could submit multiple transfer applications, were guaranteed an interview, and would receive “priority consideration over a similarly qualified applicant.” Id.
The EEOC sued alleging that United’s policy violated the ADA because it required disabled employees needing a job transfer as a reasonable accommodation to undergo a competitive job selection process to be selected for a position. Id. at 2-3. Following a transfer of venue from San Francisco to Illinois, the District Court granted United’s motion to dismiss because a previous Seventh Circuit case called EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000), held that a competitive transfer process alone did not violate the ADA. Id. at 3-4.
The Seventh Circuit’s Decision
In affirming the District Court’s decision, the Seventh Circuit agreed that its previous Humiston-Keeling case was “directly on point” and remained binding on the District Court. Id. Nonetheless, the EEOC urged the Seventh Circuit to reexamine and reverse its prior decision in Humiston-Keeling and reinstate its case. Ultimately, the Seventh Circuit panel declined to do so given its prior rulings, but noted that the EEOC’s “interpretation may in fact be a more supportable interpretation of the ADA.” Id. at 5. As a result, the panel “strongly recommended” that the case be reconsidered by all of the judges of the Seventh Circuit in what is known as an “en banc review.” Id. at 11.
Impact of the Decision
For now, Seventh Circuit precedent remains intact - the ADA does not require that employers reassign a disabled worker to a job for which there is a more qualified applicant, provided that the employer’s “consistent and honest policy” is to hire the best applicant for its open positions per EEOC v. Humiston-Keeling, 227 F.3d 1024, 1029 (7th Cir. 2000). Nonetheless, the panel’s decision signals that the Seventh Circuit may be willing to reconsider its prior holding. Assuming that it does so, it remains unclear whether the Seventh Circuit will go as far as the EEOC urges and affirmatively hold that employers must reassign employees to vacant positions for which they are minimally qualified as a reasonable job accommodation.
Such a finding would be a sea change in the Seventh Circuit and would result in significant challenges for employers who are charged with balancing the rights of disabled workers with the rights of other workers who are also qualified for the position at issue. Indeed, the EEOC’s stance would put the employer in the unenviable position of giving preference to disabled workers over all other protected classes of employees. Such a situation is apt to lead to increased litigation in instances where a less-qualified, disabled applicant was selected for a position over a more-qualified older worker or an individual in some other protected group. This is certainly a case to watch.