Seventh Circuit Reverses Itself On Reassignments As A Reasonable Accommodation Under The ADA (Or 'Humiston-Keeling: An Appreciation')

The Americans with Disabilities Act (ADA) requires employers to make reasonable accommodations for qualified employees with disabilities, and lists several examples of possible accommodations, including "reassignment to a vacant position."1 Over the years, courts and employers have struggled with the extent of this obligation when an employee with a disability seeks reassignment to a vacant, lateral position – but other, more qualified employees in the workforce seek the vacant position as well.

In a stunning reversal of over 10 years of precedent, the Seventh Circuit retreated from its frequently cited position on the lengths to which an employer must go – and whether preferences must be given – in order to accommodate an employee with a disability in connection with a job reassignment under the ADA. The practical effect of the Seventh Circuit's recent decision in EEOC v. United Airlines, Inc.2 is that employers will need to consider far more carefully any reassignment request by an employee with a disability so long as that employee is minimally qualified for the position, and may face a dilemma when confronted with the competing rights and aspirations of other employees.

Reversal of EEOC v. Humiston-Keeling

Humiston-Keeling's Opinion on "Affirmative Action with a Vengeance"

In its recent decision, the Seventh Circuit overruled its prior 2000 decision in EEOC v. Humiston-Keeling.3 In doing so, the Seventh Circuit contends that Humiston-Keeling was at odds with the Supreme Court's 2002 decision in US Airways v. Barnett (in which the Supreme Court held that a non-contractual but consistently followed seniority policy ordinarily takes precedence over the reasonable accommodation requirement).4 In Humiston-Keeling, the Seventh Circuit described the ADA as an anti-discrimination law, not an affirmative action mandate. The case involved an employee with "tennis elbow" whose lifting restrictions rendered her unable to perform her warehouse job. She sought a lateral, vacant clerical position – but the employer filled the vacant clerical positions with other individuals who were indisputably better qualified, following its policy of selecting the best applicant rather the first minimally qualified applicant. The EEOC claimed that the employer's refusal to reassign the employee to an equivalent vacant clerical position that she could perform violated the ADA. Specifically, the EEOC argued that a reassignment or transfer request by an employee with a disability takes primacy, and must be granted if the individual with a disability is only minimally qualified for the desired position – unless the employer can prove "undue hardship." Otherwise, argued the EEOC, the ADA's express mention of reassignment to a vacant position as a possible accommodation rings hollow. The court disagreed with this premise, pointedly commenting that "[t]he fact that the disability isn't what makes the disabled person unable to perform the [clerical] job as well as the person who got it is, in the Commission's view, irrelevant."

The Seventh Circuit's opinion in Humiston-Keeling rejected the EEOC's approach of bestowing favored status upon individuals with disabilities, noting that the approach was "affirmative action with a vengeance" and created a "hierarchy of protections for groups deemed...