The U.S. Supreme Court again refused to decide whether the Americans with Disabilities Act requires employers to reassign employees with disabilities to vacant positions, without requiring them to compete with other candidates.
The Court declined May 28 to hear EEOC v. United Airlines Inc., No. 10-cv-01699, 2012 WL 718503 (7th Cir. March 7, 2012).
The circuit-court divide on this question was almost remedied in 2008 when the High Court agreed to hear Huber v. Wal-Mart Stores, Inc., 486 F.3d 480 (8th Cir.), cert. granted, 552 U.S. 1074 (2007). But when the parties reached a settlement, it was removed from the Court’s docket in 2008. The 8th Circuit had ruled in that case that Wal-Mart did not violate ADA by requiring Huber to compete for a new position and ultimately placing her in a lower-paying job.
Now, the Supreme Court declined to consider the 7th Circuit United Airlines ruling that held that non-competitive reassignment is a required reasonable accommodation.
The Split
ADA requires that employers provide accommodations to employees with disabilities and clearly states that “reassignment to a vacant position” is one accommodation employers must consider (42 U.S.C. §12111(9)(B)). EEOC’s implementing regulations echo this mandate.
The enforcement agency, however, goes further, taking the position that employers should reassign the individual to a position with equivalent pay and status if he or she is qualified for the job and if the position is vacant. It makes clear that the employee need only be qualified for the position and that he or she “does not need to be the best qualified individual for the position in order to obtain it as a reassignment.”
The federal circuit courts of appeals, however, have long disagreed on this issue.
The 7th, 10th and D.C. Circuits agree with the EEOC that if an employee requires reassignment as an accommodation, the employer must not require him or her to compete for it. (EEOC v. United Airlines; Smith v. Midland Brake, 180 F.3d 1154 (10th Cir. 1999); Aka v. Washington Hospital Center, 156 F.3d 1284 (D.C. Cir. 1998)).
The 2nd, 4th, 5th, 6th, 8th and 11th circuits disagree with EEOC. All six courts have held that employees with disabilities are not entitled to noncompetitive transfers as a reasonable accommodation.
United Airlines argued that this 3-6 split made the question ripe for Supreme Court consideration.
EEOC, in its brief, disagreed. The disagreement is merely a shallow 3-1 split, the commission said. EEOC does not consider many circuit rulings to have addressed the question.
“[T]he circuit split is of greater intensity than respondent is willing to admit,” United Airlines said in its reply. EEOC “attempts to diminish the conflict by passing off the holdings of those cases as nothing more than ‘generic references to ‘affirmative action’’ that ‘do not present the question addressed by the court of appeals in this case.’”
Instead, these rulings are “clear holdings that the ADA’s basic function is as an antidiscrimination statute, not an affirmative-action statute,” the employer said. “Thus the split is not merely a ‘shallow’ 3-1, as respondent maintains — although even that split would warrant this Court’s review given the importance of the issue and its recurrence — but a deeply entrenched 3-6 split that includes those courts of appeals that have declined to construe the ADA as an affirmative-action statute in other contexts.”
Whether the split stands at 3-1 or 3-6, it will remain for now.
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