Disabled United Airlines Workers May Get Relief

     (CN) – United Airlines may have to change how it reassigns disabled employees within the company, the 7th Circuit ruled, reversing its own earlier opinion.
     In a federal complaint, the Equal Employment Opportunity Commission (EEOC) had said that United Airlines violates the Americans with Disabilities Act with its competitive process for disabled employees to transfer to an accommodating position. The airline does not let these employees switch automatically into vacant positions, but it gives them preferential treatment throughout the transfer process.
     Citing binding precedent from EEOC v. Humiston-Keeling, a federal judge in Chicago held that a competitive transfer policy does not violate the ADA.
     But the EEOC argued that the 2002 Supreme Court decision U.S. Airways Inc. v. Barnett undermined Humiston-Keeling. In Barnett, the high court ruled that U.S. Airways improperly displaced an injured worker from his mailroom reassignment after other employees with more seniority applied for his job.
     The 7th Circuit disagreed in March, and said it would need to convene an en banc hearing to overrule Humiston-Keeling. After the EEOC petitioned for that rehearing, however, the full court approved overruling Humiston-Keeling.
     Since the full court did not pursue the usual formal en banc procedure involving argument, the original three-judge panel vacated its earlier decision and overruled Humiston-Keeling on Friday.
     “The Supreme Court has found that accommodation through appointment to a vacant position is reasonable,” Judge Richard Cudahy wrote for the court. “Absent a showing of undue hardship, an employer must implement such a reassignment policy.”
     “The Barnett framework does not contain categorical exceptions,” he added. “On remand, the district court must conduct the Barnett analysis. In this case, the district court must first consider (under Barnett step one) if mandatory reassignment is ordinarily, in the run of cases, a reasonable accommodation. Assuming that the district court finds that mandatory reassignment is ordinarily reasonable, the district must then determine (under Barnett step two) if there are fact-specific considerations particular to United’s employment system that would create an undue hardship and render mandatory reassignment unreasonable.”
     Though United noted that the 8th Circuit had adopted Humiston-Keeling for a decision in 2007, the 7th Circuit was not swayed.
     “The Eighth Circuit’s wholesale adoption of Humiston-Keeling has little import,” the 11-page decision states. “The opinion adopts Humiston-Keeling without analysis, much less an analysis of Humiston-Keeling in the context of Barnett,” Cudahy wrote. “Two of our sister circuits have already determined that the ADA requires employers to appoint disabled employees to vacant positions, provided that such accommodations would not create an undue hardship (or run afoul of a collective bargaining agreement). We feel that in light of Barnett … we must adopt a similar approach.”

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