3-27-12; A recent decision from the 7th Circuit confirms competitive placement programs are still A-OK as reasonable accommodation under the ADA, but for how long?

In EEOC v. United Airlines, decided earlier this month, the EEOC claimed a United Airlines policy which dealt with reasonable accommodation for employees with disabilities was in violation of the ADA. United was acting in full compliance with the law as articulated under the 7th Circuit, but the EEOC wanted to test an issue due to its interpretation of a Supreme Court case. This just goes to show us all even well-settled case law can be challenged and changed.

United Airlines had in place a policy which allowed employees who could no longer handle the essential functions of their jobs (even with reasonable accommodation) to attempt a transfer to an equivalent or lower-level vacant position. Under this policy, while employees would not automatically be given transfers, they would be given special preferences including a guaranteed interview, unlimited transfer applications, and priority consideration over other similarly qualified candidates.

United considered this position reasonable based on previously settled case law, namely the case EEOC v Humiston-Keeling, and believed this arrangement could itself be a classified as a reasonable accommodation, even if the transfer process was competitive and a position was not guaranteed.

In EEOC v. United Airlines, the EEOC challenged that holding and argued the competitive placement policy did not constitute a reasonable accommodation. The EEOC argued United should have been required to reassign the disabled employees to a vacant position for which they were qualified. Initially, as the EEOC’s position was in direct conflict with Humiston-Keeling case, the Federal District Court granted United’s motion to dismiss the suit.

The lower court noted Humiston-Keeling was directly on point and it held the ADA did not require actual reassignment, noting other circuits besides the 7th Circuit had relied on the case and set precedent due to it, and that it had never been overruled. The EEOC argued the U.S. Supreme Court case of US Airways, Inc. v. Barnett undercut the ruling in Humiston-Keeling. The EEOC argued based on US Airways, Inc. v. Barnett the ADA requires, as a reasonable accommodation, the actual 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. As noted above, this conflicts with the competitive reassignment present at UA. While US Airways, Inc. v. Barnett is not directly on point as the policy at issue there was somewhat factually different, there is a solid legal argument present allowing for the challenge at issue here.

On appeal to the 7th Circuit Court of Appeals, the dismissal was affirmed. In its decision, written by Judge Cudahy, the 7th Circuit noted in order to prevail, the EEOC had to convince the court to overrule its prior decision. “The EEOC’s interpretation may in fact be a more supportable interpretation of the ADA, and here we think that this is likely. 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.” The decision’s language makes it clear there may be an en banc rehearing however, on this issue, as Judge Cudahy wrote “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 US Airways, Inc. v. Barnett.”

What does this mean in real world terms? The Federal courts have generally moved to expand the reach of the ADA. They have also generally moved toward greater and greater efforts at accommodation. This decision begs the question of how far employers will have to go in the future to reasonably accommodate disability. At present the competitive placement programs like United Airlines had in place will still be found reasonable, but that may not last for long. If it does not, the alternative the EEOC was arguing for would force employers to provide jobs to disabled individuals, even if there are other more qualified applicants, unless the employer could demonstrate undue hardship. This gets into tricky territory, and it is difficult to understand how a free country could force an employer to place less qualified individuals when there are more qualified applicants waiting in the wings.

This article was researched and written by Arik D. Hetue, J. D. who can be reached at ahetue@keefe-law.com. Please feel free to direct any comments or questions to him, or post them on our award winning blog!