In a prior blog entry, I discussed a case where the Seventh Circuit was faced with the question as to whether the ADA mandated reassignment or whether competitive bidding would suffice in order to comply with the ADA. That particular case, as discussed previously in this blog, held that prior Seventh Circuit precedent demanded that a competitive bidding process was in compliance with the ADA. However, that opinion also said that it encouraged the Seventh Circuit to hear the case in light of the Supreme Court decision in US Airways, Inc. v. Barnett, 535 U.S. 391 (2002). Accordingly, the Equal Employment Opportunity Commission did petition for rehearing en banc. Equal Employment Opportunity Commission v. United Air Lines, Inc., _ F.3d_, 2012 WL 3871503, *1 (Seventh Cir. September 7, 2012). Once that happened, every member of the court (Seventh Circuit), in active service approved overruling the prior decision of the Seventh Circuit, which had found that competitive bidding was consistent with the ADA. Id. Accordingly, the original panel opinion was vacated and a new panel opinion was circulated to the full court. Id. When that new opinion was circulated to the full court, no member of the court voted to rehear the case en banc. Id..

This new decision of the Seventh Circuit throws out its prior holding saying that competitive bidding is in accordance with the ADA. That is, the court adopted a variation of the approach in Barnett. First, the Seventh Circuit directed the district court to consider if mandatory reassignment was ordinarily, in the run of cases a reasonable accommodation. Id. at *4. If the district court finds on remand that mandatory reassignment is ordinarily reasonable, then the district court must determine if there are fact specific considerations particular to United’s employment system that create an undue hardship and render the mandatory reassignment unreasonable. Id..

The question arises as to who has the burden of proof with respect to proving the Barnett factors? In the Seventh Circuit’s opinion, they cite favorably another case ( Shapiro v. Township of Lakewood, 292 F.3d 356 (Third Cir. 2002)), which described how the burden of proof works as follows. First, the employee must show that the accommodation is the type that is reasonable in the run of cases. Id. at *3 fn1. Second, if the accommodation is shown to be a type of accommodation that is reasonable in the run of cases, the burden then shifts to the employer to show that granting the accommodation would impose an undue hardship under the particular circumstances of the case. Id.. Finally, if the accommodation is not shown to be a type of accommodation that is reasonable in the run of cases, the employee can still prevail by showing that special circumstances warranted a finding that the accommodation was reasonable under the particular circumstances of the case. Id.
The Seventh Circuit concludes that they agree with other U.S. Court of Appeals that already determined that the ADA requires employers to appoint disabled employees to the vacant position provided that such accommodations do not create an undue hardship or run afoul of collective bargaining agreements. Id. citing to a 10th circuit and a D.C. circuit opinion.

What does all this mean? Barnett is not a precise fit because a seniority system is not involved. Should a company stick with competitive bidding? Hard to say. There are two votes on the U.S. Supreme Court for such a view (See U.S. Airways 535 U.S. at 416 (J. Scalia and J. Thomas dissenting). Also, the burden shifting at first seems to be reversed. That is, in Barnett the presumption was that a seniority system will prevail. Id. at 394, 403, 405-406, whereas here, the assumption is that the mandatory reassignment is reasonable. The difference is attributable to the U.S. Supreme Court saying in Barnett that they assumed that such a request is reasonable in the absence of the seniority system (Id. at 403), which is not involved here. Finally, it is simply not clear what “run of cases” (the term used in Barnett), means. Regardless, the best preventive approach may be to adopt justice O’Connor’s opinion which focused on whether the position was vacant.