Late last week, following a recent trend, the Seventh Circuit overturned its own long-standing precedent to now hold that the Americans with Disabilities Act’s (ADA) "reasonable accommodation" provision requires employers to place disabled employees who cannot perform the essential functions of their job even with reasonable accommodation in vacant positions for which they are qualified. EEOC v. United Airlines, Inc.
Previously, in a 2000 case, EEOC v. Humiston-Keeling, the Seventh Circuit specifically held that the ADA did not require an employer to reassign a disabled employee to a job for which there was a better applicant, provided it was the employer’s consistent and honest policy to hire the best applicant for the particular job in question.
In 2003, United Airlines published its "competitive transfer policy" for employees who could no longer perform their essential job functions due to a disability. This policy gave disabled workers preferential treatment for vacant positions over non-disabled competing candidates so that if two workers were equally qualified for a particular vacant job, the disabled worker would receive the position; but if another candidate was better qualified, the company could select the better qualified candidate.
In 2009, the EEOC sued United Airlines, arguing that United Airlines’ competitive transfer policy had violated the ADA by denying disabled employees the reasonable accommodation of reassignment to a position for which they were qualified after a disability rendered them unable to perform their previous job functions. Relying on Humiston-Keeling, the district court dismissed the case. But last week, the Seventh Circuit changed its mind. Citing the U.S. Supreme Court’s opinion in U.S. Airways, Inc. v. Barnett, the Seventh Circuit revived United and overruled itself, holding that "the ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer."
But the Seventh Circuit’s interpretation of Barnett appears overreaching. Ignoring Barnett’s limited application to circumstances involving seniority systems, the Seventh Circuit instead turned it into a mandatory two-part test for scrutinizing reasonable accommodations for disabled workers who can no longer perform the essential functions of their job with reasonable accommodation The Seventh Circuit then remanded United back to the district court to review United Airline’s policy under the Barnett two-part analysis, instructing the court to determine (1) if mandatory reassignment is ordinarily, in the run of cases, a reasonable accommodation; and (2) if so, whether there are any fact-specific considerations particular to United Airline’s employment system that would create an undue hardship and render mandatory reassignment unreasonable.
This decision has far reaching implications for the non-disabled workforce. In effect, it gives any disabled worker who is no longer qualified to perform his or her own job the right to obtain a different position over a better qualified non-disabled worker.
The workplace upheaval underlying this issue may trigger United States Supreme Court review if United Airlines applies to the Court for a writ of certiorari.