In Turnabout, Seventh Circuit Says Reassignment Is ADA Reasonable Accommodation

Darrell VanDeusen
Darrell VanDeusen

For the past 12 years, the Seventh Circuit has held that the ADA does not require an employer to reassign employees to a vacant position as a reasonable accommodation.  The court has now retreated from that position in EEOC v. United Airlines, Inc., No. 11-1774 (7th Cir.  Sept. 7, 2012).  Back in 2000, the court ruled in EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000) that, while the ADA mentions reassignment as a reasonable accommodation, the Act did not require reassignment in cases where there was a better candidate for the job, provided it was the employer’s “consistent and honest policy” to select the best-qualified applicant for a position.

Looking to the Supreme Court’s decision in U.S. Airways Inc. v. Barnett, 535 U.S. 391 (2002), which the Seventh Circuit  basically has ignored until now, it accepted Barnetts’ two-step, case-specific approach for determining whether reassignment is a reasonable accommodation.

In the case decided last week, the EEOC had sued United Airlines, challenging its reasonable accommodation guidelines because they provided that reassignment was “competitive” and that a qualified disabled worker need not be moved to a vacant position if a more qualified applicant was available.  The trial court granted United’s motion to dismiss, finding that Humiston-Keeling was directly on point and had not been overruled.  In March 2012, the Seventh Circuit affirmed.  The EEOC sought en banc review, which was denied after polling the court’s active judges.  Instead, and without dissent from any judge on the Circuit, the panel issued a revised opinion, finding that Humiston-Keeling is no longer good law in light of Barnett.

Returning the case to the trial court, the panel instructed it to consider whether mandatory reassignment of a disabled worker who is unable to perform his current job is “ordinarily, in the run of cases, a reasonable accommodation.”  If so, the district court should determine if “fact-specific circumstances particular to United’s employment system” exist that “would create an undue hardship and render mandatory reassignment unreasonable.”

Most courts now recognize that reassignment may be a reasonable accommodation.  It is important for employers to remember that this option exists when dealing with ADA issues.


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