Until recently, the precedent in the Seventh Circuit Court of Appeals did not require employers to automatically reassign disabled employees to vacant positions for which they were qualified, especially if there was a better qualified applicant for the position. In September 2012, the Seventh Circuit reversed course to conform to an earlier Supreme Court holding, and changed its interpretation of the Americans with Disabilities Act to require reassignment of a disabled employee to a vacant position if such reassignment is ordinarily reasonable under the circumstances and would not create an undue hardship for the employer.
Under the Americans with Disabilities Act of 1990 (“ADA”), an employer is prohibited from discriminating against an individual with a disability who, with or without a reasonable accommodation, can perform the essential functions of the job. 42 U.S.C. § 12101 et seq. An employer must make a reasonable accommodation to the known physical or mental limitations of the employee, unless to do so would impose an undue hardship of the operations of the employer’s business. The ADA provides a non-exhaustive list of efforts an employer can undertake to provide a reasonable accommodation to a disabled employee. One such example under the ADA is the reassignment of the disabled employee to a vacant position. Until recently, the Seventh Circuit Court of Appeals had held that under this provision of the ADA an employer was not required to reassign a disabled employee to a vacant position for which there was a better qualified applicant, so long as the employer had a consistent policy of hiring the best applicant for the job in question. See EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000). However, in September 2012, the Seventh Circuit reversed course and held that the ADA mandates that an employer reassign an employee with a disability to a vacant position for which that employee is qualified, so long as such an accommodation is ordinarily reasonable and would not present an undue hardship to the employer. EEOC v. United Airlines, 2012 U.S. App. Lexis 18804 (7th Cir. September 7, 2012).
In the United Airlines case, the Seventh Circuit reversed its prior interpretation of the ADA’s provision concerning reassignment to conform with a 2002 Supreme Court opinion, which held an employee must only show that the accommodation sought seems reasonable on its face, in the ordinary run of similar cases, in order to shift the burden to the employer to show that the accommodation sought will create an undue hardship on the employer under the circumstances. U.S. Airways v. Barnett, 535 U.S. 391 (2002). In Barnett, the Supreme Court held that the reassignment of a disabled U.S. Airways baggage handler to a mailroom position was a technically reasonable accommodation under the ADA. However, the Court held that because the reassignment would violate the company’s long-standing seniority system for access to certain positions, the reassignment was not reasonable in the ordinary run of cases involving such seniority systems. Despite its holding that the reassignment in Barnett was not a reasonable accommodation in a case involving a seniority system, the Supreme Court also stated that an employee remains free to demonstrate that under the unique circumstances of a particular case, reassignment is reasonable.
Relying on Barnett, the Seventh Circuit held that United Airlines’ Reasonable Accommodation Guidelines may violate the ADA, as those guidelines did not provide for automatic reassignment of a disabled employee to a vacant position in the absence of a showing of undue hardship by the employer. Instead, the Guidelines provided that the transfer process was competitive, and that disabled employees requiring accommodation would be given preferential treatment, but would not be automatically assigned to the vacant position if a better qualified applicant had applied. The Guidelines also provided that a disabled employee would be permitted to submit an unlimited number of transfer applications, would be guaranteed an interview, and would receive priority consideration over equally qualified non-disabled candidates. Despite these provisions, the Seventh Circuit held, in light of Barnett, that such a policy may violate the ADA, as automatic reassignment is ordinarily reasonable under policies that require the hiring of the best qualified applicant, unless an undue hardship can be shown. In reaching its conclusion, the Seventh Circuit reversed its earlier position, and clearly held that under the ADA, preferential treatment in the form of automatic reassignment is sometimes necessary to achieve the ADA’s basic goal of equal opportunity.
What does the Seventh Circuit’s new holding mean for employers addressing a potential reassignment of a disabled employee? First, an employer with a policy of hiring the best qualified applicant for a specific position, regardless of the number or order of applicants, will be required to offer the open position to a disabled employee seeking reassignment, so long as that employee is minimally qualified for the position. An employer will only be permitted to refuse such mandatory reassignment if it is not a reasonable accommodation in the ordinary run of cases, a circumstance which the Seventh Circuit has all but eliminated in the context of policies seeking the best qualified applicant. In light of this new precedent, employers should recognize that a best qualified applicant policy is not universally enforceable, especially where a disabled employee has applied for reassignment to a position governed by the policy. Employers should carefully consider hiring decisions for positions that a disabled employee has applied for before rigid adherence to such a policy.
Second, employers desiring to refuse a mandatory reassignment that qualifies as a reasonable accommodation must be prepared to demonstrate that under the facts of the specific case, mandatory reassignment would create an undue hardship for the business operations of the employer. Finally, employers should be aware that even if the accommodation of mandatory reassignment is not reasonable under the ordinary run of cases similar to their own, an employee may still prevail if he or she can demonstrate that the specific facts of the particular case make such reassignment reasonable.
The Seventh Circuit’s recent reversal of its earlier precedent governing the scope of reassignment as a reasonable accommodation under the ADA may significantly impact employers’ policies with respect to hiring decisions for vacant positions where one or more applicants is a disabled employee seeking reassignment. If you have questions about this article or the provisions of the ADA, please contact us at www.hwelaw.com.