A federal appellate court may reconsider its views on “reassignment” as a reasonable accommodation under the Americans With Disabilities Act, at the request of the Equal Employment Opportunity Commission.
The EEOC takes the position that the ADA requires employers to reassign employees, whose disability prevents them from performing their current job, to a vacant position for which they are qualified. The 7th Circuit, however, does not currently recognize reassignment as an accommodation employers must consider.
The issue arose in a recent case, EEOC v. United Airlines, when the commission lost its appeal to the 7th Circuit. The court relied on its 2000 precedent (EEOC v. Humiston-Keeling, 227 F.3d 1024, 1029 (7th Cir. 2000)) that the ADA does not require employers to consider reassignment.
The commission argued that in light of a 2002 Supreme Court case, the 7th Circuit should change its position — which it can only do with an en banc hearing, requiring the presence of all the court’s judges.
It’s unclear whether the Supreme Court case, US Airways, Inc. v. Barnett (535 U.S. 391 (2002)), would apply because it involved a seniority system and the Court condoned reassignment in a roundabout way, the 7th Circuit said. The High Court’s opinion states that while a request for reassignment was a reasonable accommodation within the meaning of the statute, the violation of a seniority system would present an undue hardship for the employer.
The 7th Circuit said that while the “EEOC’s interpretation may in fact be a more supportable interpretation of the ADA, and here we think that this is likely,” providing the court with a compelling reason to deviate from precedent will be “no easy task.”
The panel ruling on the United Airlines case strongly recommended “en banc consideration of the present case.” (EEOC v. United Airlines, Inc. No. 10-cv-01699 (7th Cir. March 7, 2012))