Four months ago we reported on the decision of the United States Court of Appeals for the Seventh Circuit upholding United Airlines’ position in a lawsuit brought by the Equal Employment Opportunity Commission (EEOC) that United did not violate the Americans with Disabilities Act (ADA) by its policy of filling vacant positions with the most qualified candidate even though another employee, unable to perform his own job because of a disability, had applied for the vacant position as a reasonable accommodation. The three-judge panel of the Seventh Circuit that issued that decision has now vacated its opinion and has decided the case in favor of the EEOC. The panel’s reversal of its position is not that surprising. The panel originally ruled in favor of United because it felt bound by a Seventh Circuit ruling in a similar case decided in 2000, EEOC v. Humiston-Keeling. The panel, however, questioned that earlier decision in light of the Supreme Court’s 2002 decision in US Airways, Inc. v. Barnett and thus recommended that the issue be considered by the court en banc (i.e. by the entire membership of the Seventh Circuit). The EEOC promptly moved for reconsideration en banc. Each member of the court expressed the view that EEOC v. Humiston-Keeling should be overruled and, in lieu of formally rehearing the case en banc, simply directed the original panel to vacate its decision and issue a new opinion.

The New Seventh Circuit Decision

The ADA expressly provides that a reasonable accommodation may include “reassignment to a vacant position.” Of course, the ADA also provides that an employer need not grant an accommodation request that would present an “undue hardship.” Under United’s policy, to receive priority consideration for placement in a vacant position as an accommodation, a disabled employee had to be at least tied in qualifications with the best applicant. Thus the issue before the Seventh Circuit was whether United would suffer undue hardship if it were required to forego its policy of not accommodating transfer requests by disabled employees when a more qualified candidate is available.

In US Airways, Inc. v. Barnett, the Supreme Court held that “in the run of cases” it would be an “undue hardship” under the ADA to require an employer to forego its well established seniority system in filling a vacant position in favor of a disabled employee. The Court reasoned that seniority systems provide “important employee benefits by creating, and fulfilling, employee expectations of fair, uniform treatment. These benefits include ‘job security and an opportunity for steady and predictable advancement based on objective standards.’" But seniority systems aside, the Supreme Court ruled that an accommodation request to fill a vacant position should not be considered unreasonable merely because it provides a “preference” in the sense that it permits a disabled worker “to violate a rule that others must follow” or merely because the employer’s policy for filling vacancies is disability-neutral.

In light of Barnett, the Seventh Circuit concluded that requiring an employer to forego a policy of filling a vacant position with the best qualified candidate would not automatically constitute an undue hardship for ADA purposes. The court reasoned that such policies do not present the issues of property rights and administrative concerns presented by seniority polices. Although the court did not hold that policies such as United’s could never constitute an undue hardship, and ruled that the district courts should evaluate such policies on a case-by-case basis, the clear import of the court’s decision is that in “the run of cases” requests by disabled employees to fill vacant positions will be deemed a reasonable accommodation and employers will have a heavy burden to demonstrate undue hardship if required to forego a policy of filling vacancies with the most qualified candidates.

Conclusion

The Seventh Circuit is now the third circuit court to have concluded that an employer’s policy of filling vacant positions with the best qualified person at the expense of a disabled employee is suspect under the ADA. Only one court has held to the contrary, and in that case the Supreme Court granted certiorari only to have the case settle before the Court could decide the issue. Although in most jurisdictions there is currently no definitive ruling on the issue, a “reading of the tea leaves” strongly suggests that an employer who cannot demonstrate a significant hardship if it were to grant a disabled employee’s request to fill a vacant position runs a considerable risk that it will not fare well in any ensuing litigation. If you have any questions regarding the accommodation of disabled employees, please feel free to contact any of the attorneys in the Gibbons Employment & Labor Law Department with any questions that you may have.

Richard S. Zackin is a Director in the Gibbons Employment & Labor Law Department.