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March 11, 2012

Following circuit precedent, the U.S. Court of Appeals for the Seventh Circuit March 7 ruled the Americans with Disabilities Act does not require employers to reassign employees who lose their current jobs because of disabilities to other vacant jobs they are
qualified to perform (EEOC v. United Airlines Inc., 7th Cir., No. 11-1774, 3/7/12).

The Equal Employment Opportunity Commission had sued United Airlines under the ADA, challenging the airline’s reasonable accommodation guidelines. Those guidelines said that while “transfer to an equivalent or lower-level vacant job” may be a reasonable accommodation for an employee unable to perform his or her current job because of disability, the reassignment process is “competitive” and the disabled employee will not automatically receive the vacancy if a better-qualified candidate applies.

The EEOC contended that United’s policy violates the ADA, which EEOC argued requires an employer to reassign a disabled
worker to a vacant job for which he is qualified. A federal district court granted United’s motion to dismiss, citing the Seventh Circuit decision in EEOC v. Humiston-Keeling, 227 F.3d 1024, 10 AD Cases 1665 (2000), for the principle that an employer’s
competitive transfer policy does not violate the ADA.

The EEOC argued on appeal that the U.S. Supreme Court decision in US Airways Inc. v. Barnett, 535 U.S. 391, 12 AD Cases 1729
(2002), undermines Humiston-Keeling and that the Seventh Circuit should change its interpretation of the ADA. EEOC argued that the law requires as a reasonable accommodation the reassignment of a disabled worker over a more qualified nondisabled candidate if the disabled individual is “at least minimally qualified” for the job and the employer cannot prove undue hardship.

Affirming the judgment for United, a Seventh Circuit panel said Humiston-Keeling remains good law, but it also strongly suggested en banc review of the issue.

“EEOC’s interpretation may in fact be a more supportable interpretation of the ADA, and here we think that this is likely,” Judge Richard D. Cudahy wrote. “However, the EEOC must do more to force an abandonment of stare decisis. In order to provide this court
with a compelling reason to deviate from precedent, the EEOC must show that Humiston-Keeling is inconsistent with an on-point Supreme Court decision or is otherwise incompatible with a change in statutory law.”

Since the Seventh Circuit previously has ruled the Supreme Court’s decision in Barnett did not undercut the ADA interpretation in Humiston-Keeling, the appeals panel said it would adhere to Humiston-Keeling.

“However, there is no harm in lessening this split [among federal circuit courts on the reassignment issue] if, in fact, Barnett undermines Humiston-Keeling,” Cudahy wrote. “In that respect, the present panel of judges strongly recommends 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.” Judges Michael S. Kanne and Diane S. Sykes joined in the decision.  03.11.2012

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