Court Won’t Adopt More Forgiving ADA Reading

     CHICAGO (CN) – Workers who will lose their current positions because of a disability have no right to stay with the company in another role, the 7th Circuit ruled, finding no issue with standing precedent and the Americans With Disabilities Act.



     Under reasonable accommodation guidelines printed in 2003, United Airlines said that disabled employees can seek a transfer when they can no longer perform the essential functions of their current jobs, even with reasonable accommodation.
     Since the transfer process is competitive, however, the disabled employee is not automatically placed in the vacant position. Instead, the employee can submit an unlimited number of transfer applications, interview for the position and receive priority consideration over an applicant with similar qualifications.
     Though the position aligns with precedent in the 7th Circuit, the Equal Employment Opportunity Commission claimed that the 2000 controlling case, EEOC v. Humiston-Keeling, no longer applied.
     In Humiston-Keeling, the 7th Circuit wrote that “ADA does not require an employer to reassign a disabled employee to a job for which there is a better applicant, provided it’s the employer’s consistent and honest policy to hire the best applicant for the particular job in question.”
     But the EEOC said that decision was “flatly contradicted” by the 2003 Supreme Court opinion for U.S. Airways v. Barnett. The agency also pointed to the 10th and D.C. Circuits, which say that ADA requires automatic reassignment to vacant positions.
     A three-judge panel declined to waver last week. “On two other occasions after the Supreme Court’s ruling in Barnett, this court has relied on Humiston-Keeling,” Judge Richard Cudahy wrote for the court.
     “In short, this court has made no move to abandon Humiston-Keeling after Barnett, bolstering the district court’s conclusion that Barnett does not overrule or undermine Humiston-Keeling,” he added.
     The panel also noted that the 8th Circuit’s interpretation of the act matches Humiston-Keeling.
     “A circuit split will remain even if this court adopts the position of the Tenth and D.C. Circuits,” Cudahy noted. “However, there is no harm in lessening this split if, in fact, Barnett undermines Humiston-Keeling. In that respect, the present panel of judges strongly recommends en banc consideration of the present case since the logic of EEOC’s position on the merits, although insufficient to justify departure by this panel from the principles of stare decisis, is persuasive with or without consideration of Barnett.”
     Unless the full 7th Circuit agrees to review the case, Humiston-Keeling and United’s reasonable accommodation guidelines will stand.

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