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Monday, October 15, 2012

ADA May Require Reassignment of Disabled Employee to Vacant Position

Last month, the Seventh Circuit Court of Appeals held that employers must establish policies to reassign employees to vacant positions when their disability prevents them from continuing in their current positions.  EEOC v. United Airlines.  This case overturned the court's previous position that the ADA does not require employers to reassign employees whose disability would cause them to lose their position. 

In this case, the EEOC brought suit against United Airlines in an effort to show that United's policy regarding transfers violated the ADA.  That policy established Reasonable Accomodation Guidelines that individuals with disabilities who faced job loss due to their disability would have to compete for vacant positions.  The district court had dismissed the EEOC's case based on a previous Seventh Circuit case Humiston-Keeling.  However, in its appeal of the dismissal, the EEOC argued that the U.S. Supreme Court's ruling in U.S. Airways v. Barnett controlled. 

The Seventh Circuit, hearing the case en banc, agreed with the EEOC.  The Court reviewed language contained in the ADA that “reassignment to a vacant position” is a possible “reasonable accommodation” for disabled employees. The EEOC contended that “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.  However, the Seventh Circuit had previously held in Humiston-Keeling that the ADA has no such requirement.  Based on the Supreme Court's more recent decision in Barnett, however, the Seventh Circuit reversed and overturned Humiston-Keeling, holding that the ADA does mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that the accommodations would be ordinarily reasonable and would not present an undue hardship to that employer. The Court remanded the case with instructions that the district court determine if there were fact-specific considerations particular to United’s employment system that would render mandatory reassignment unreasonable in this case. These exceptions might include a violation of an established seniority system or other provision in a collective bargaining agreement.

What does this mean for government employers?  Based on this ruling, public employers should review their employment policies and procedures and determine whether changes are needed to bring those practices into compliance with this ruling.  In addition, before making a determination on reassignment of an employee with a disability, public employers may want to consult with their counsel to make the determination whether reassignment would be unreasonable due to a particular undue hardship or required based on the circumstances. 

Post authored by Julie Tappendorf, Ancel Glink


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