In accordance with the Americans with Disabilities Act, United Airlines developed Reasonable Accommodation Guidelines in 2003. Those guidelines provided that United could, but need not, transfer an employee who could no longer perform her job even with reasonable accommodation to a vacant position. The EEOC filed suit, alleging that the guideline violated the Act. Judge Leinenweber (N.D. Ill.) and dismissed the case, relying on the Seventh Circuit’s 2000 EEOC v. Humiston-Keeling case. The EEOC appeals.

In their opinion, Seventh Circuit Judges Cudahy, Kanne, and Sykes affirmed. The Court agreed with the district court that the matter was controlled by Humiston-Keeling. In Humiston-Keeling, the Court held that the Act does not require an employer to transfer a disabled employee into a vacant position over a more qualified candidate. The Court then addressed the EEOC’s invitation to overrule Humiston-Keeling, either because it was decided wrongly or because it is inconsistent with later Supreme Court precedent in Barnett. The Court noted that other panels of the Seventh Circuit have cited Humiston-Keeling with approval even since Barnett. It also noted that there was currently a circuit split on the issue. Nevertheless, the panel was persuaded by the EEOC position that has been adopted by the Tenth and D.C. Circuits. Although refusing to depart from Humiston-Keeling, the Court encouraged its colleagues to consider the issue en banc.