Yesterday, in EEOC v. United Airlines, Incorporated, (docket number 11-1774, March 7, 2012 (Seventh Circuit)), the United States Court of Appeals for the Seventh Circuit came down with a decision saying that United Air Lines was under no obligation to guarantee a reassignment to a vacant position for an employee that could no longer do the job they were currently in because of a disability, but could with or without reasonable accommodation do the job of a vacant position. The Seventh Circuit relied upon a prior case from 2000, EEOC v. Humiston-Keeling, Inc. 227 F.3d 1024 (7th Cir. 2000) saying that the Americans With Disabilities Act was not violated where the company had a competitive transfer policy.

In this case, EEOC v. United Air Lines had a reasonable accommodation guideline that said an employee who because of their disability can no longer do the essential functions of their current job even with reasonable accommodation could be transferred to an equivalent or lower level vacant position as a reasonable accommodation. However, that process at United Air Lines is competitive. That is, while employees needing accommodations are given preference (they can submit an unlimited number transfer applications, are guaranteed an interview, and receive priority consideration over similarly qualified applicant), the reassignment is not automatic. That is, United Air Lines is free to hire a different individual should there be a superior applicant to the person with a disability. In essence, the Seventh Circuit said that their hands were tied because of prior precedent from 2000. However, this panel of judges invited the entire Seventh Circuit to hear this case, a rehearing en banc, because this panel had doubts as to whether the decision relied upon here was still good law in light of United States Airways Inc. v. Barnett, 535 U.S. 391 (2002)

Thus, the question becomes what did United States Airways Inc. v. Barnett have to say about whether an assignment of a person with a disability to another position is something mandated by the Americans with Disabilities Act. The problem is that United States Airways Inc. v. Barnett is all over the place with respect to whether an employer with a seniority system has the obligation to reassign a person with a disability to another position they are otherwise qualified to do within the company. Depending upon which opinion you read in Barnett you get different answers. For example, Justice Breyer’s opinion in which Chief Justice Rehnquist, Justice Stevens, Justice O’Connor and Justice Kennedy joined said that it would be a very unusual set of circumstances that would require an employer to override a seniority system and mandate that the employer transfer an individual with a disability to another position that they could perform with or without reasonable accommodations. It is not clear how the majority view applies to this case being discussed here since nothing in EEOC v. United Airlines indicates that a seniority system is involved.

Justice O’Connor and Justice Scalia have opinions that are a bit broader in scope than the majority opinion. Justice O’Connor’s concurring opinion with respect to determining when in her opinion an employer would have the obligation to reassign a person with a disability to a position that they could do with or without reasonable accommodation, focused upon whether that position was vacant. That is, if a position was vacant, a position which no employee currently worked in and to which no individual had a legal entitlement, then to Justice O’Connor the employer would have the obligation despite a seniority system to reasonably accommodate the person with a disability by the transfer. Therefore, application of this rule to the case being discussed here would result in the person with the disability being able to transfer into that position as a matter of right, assuming that position was vacant.

Justice Scalia’s dissenting opinion in which Justice Thomas joined has another view on the matter. In his dissenting opinion he said that the Americans with Disabilities Act envisions the elimination of the obstacle of the current position when there was an alternate position freely available. That is, if the person with a disability was qualified for the position he or she was seeking reassignment to and no one else was seeking it or no one else seeking it was better qualified, then the Americans with Disabilities Act demanded that the person with the disability be given that position. In other words, an employer does not have to reassign a person with a disability to an open position if another person has superior qualifications to the person with a disability. In short, if Justice Scalia’s view prevails, then United Air Lines competitive transfer policy, which gives a preference but not an entitlement to the person with a disability would be upheld.

I just heard a CLE (6/18/ 2012) where an EEOC commissioner said that it was their view that a person with a disability seeking reassignment who was otherwise qualified would not have to compete for a job if the job was equal to or lower than their current job. We will see if the courts go along with this.

So where does this leave things. It really comes down to whether at some point the United States Supreme Court adopts the view of Justice O’Connor, no longer on the court, or Justice Scalia, which justice Thomas joined. I long ago gave up predicting how the United States Supreme Court might rule on a matter involving the Americans with Disabilities Act. As a matter of preventive law and good employee relations, Justice O’Connor’s approach bears serious consideration. That said, there is something intuitive about Justice Scalia’s view and considering the changes in the United States Supreme Court, his view could well prevail, though one never knows.

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