9-24-12; Our U.S Court of Appeals for the Seventh Circuit hits the “reset” button on their analysis of...

Case Synopsis: Our U.S Court of Appeals for the Seventh Circuit hits the “reset” button on their analysis of ADA’s requirements for a reasonable accommodation and by doing so, steps in line with the U.S. Supreme Court’s analysis of this crucial issue.

Editor’s Comment: From an employer’s perspective, this ruling imparts a more difficult burden upon companies who must now show a preference to provide a “reasonable accommodation” to a partially disabled employee seeking re-assignment. With this ruling, employers now have an infusion of affirmative-action woven into their ADA obligation for reasonable accommodation of disabled employees.

In EEOC v. United Airlines, Inc., (decided Sept. 7, 2012) our U.S. Court of Appeals for the Seventh Circuit considered whether an employee with medical restrictions must not only be considered for a reasonable accommodation, but whether that employee is entitled to preferential treatment over more qualified candidates for open positions. The case turns on the meaning of the word “reassignment” in the Act.  The ADA includes “reassignment to a vacant position” as a possible “reasonable accommodation” for disabled employees. 42 U.S.C.§ 12111(9). The EEOC contended “reassignment” under the ADA requires employers to appoint employees who are losing their current positions due to disability to a vacant position for which they are qualified. The EEOC argued the Supreme Court’s ruling in Barnett, 535 U.S. at 391 compels such a finding. However, prior Seventh Circuit rulings found that such placement was not mandatory, only that such candidates be equally considered for promotion.

In reversing their own prior Seventh Circuit rulings, the Court agreed with the EEOC, finding the Supreme Court’s analysis now compels a preferential placement of the disabled employee, even where more qualified candidates may be available for promotion. The Seventh Circuit relied heavily on theBarnett Supreme Court decision in reaching this conclusion, noting the Supreme Court found “preferences will sometimes prove necessary to achieve the Act’s basic equal  opportunity goal”.

We would be remiss if we did not point out however, the ruling by the Supreme Court in Barnett actually found for the employer, upholding the validity of their seniority system for promotions (disabled employee loses his position to a more senior employee per the seniority policy). Here, the Supreme Court held an employer is not required to give a disabled employee super-seniority to retain their job when a more senior employee invokes entitlement pursuant the employer’s seniority program.

So, what’s the difference? When is an employer supposed to give preferential treatment to the disabled and when are they permitted to adhere to their promotion policy?

As usual, the devil is in the details. The Seventh Circuit explained a promotion policy based on qualifications alone is for the employer’s benefit. Such a policy does not trump the preference to be afforded the disabled candidate for promotion (as long as the disabled candidate is minimally qualified). However, a seniority system of promotion involves the “property-rights” of the employee, whereby the most senior employee is already entitled to a particular position due to years of service. This was found to override any preference to be afforded the employee in need of accommodation.

In our view, this is a distinction without a difference, for the most part. Perhaps a seniority policy is more easily defined and measured for each employee, so there is no dispute as to who deserves the promotion (you either started before the next guy or you didn’t, regardless if he is disabled). However, it is our impression a superior worker should be recognized for his or her accomplishments and if better qualified, should be given the promotion pursuant good old fashion merit, regardless of whether another employee may or may not have a disability. To the better qualified candidate, their lost promotion is no less painful, simply because they didn’t have a vaguely-defined “property right” to the job through a seniority program.

At any rate, moving forward, U.S. employers must be sensitive to this new layer of consideration and their obligation to place employees with disabilities in available positions, even where a better qualified candidate is available. Not doing so may be perceived as a violation of the ADA.

This article was researched and written by John P. Campbell, Jr., J.D. Please send your thoughts and comments to John at jcampbell@keefe-law.com.