December 2012

By: Alan E. Seneczko, Esq.

“The 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.” Sound reasonable? It should, because it has been the law (in this circuit) for the past twelve years, when the Seventh Circuit in EEOC v. Humiston -Keeling, 227 F.3d 1024, 1029 (7th Cir. 2000) rejected the EEOC’s contention that the duty to accommodate required an employer to reassign a “minimally qualified” disabled employee to a vacant position over a “more qualified” non-disabled employee.

Not any more. On September 7, 2012, the Seventh Circuit reversed its long-standing position on this issue and adopted a far more troubling – and less certain standard. In EEOC v. United Airlines, Case No. 11-1774 (7 ^th Cir. 2012), the EEOC argued that the court’s holding in Humiston-Keeling was no longer valid in light of the Supreme Court’s decision in U.S. Airways v. Barnett, 535 U.S. 391 (2002), where the Court considered reassignment under the ADA in the context of an established seniority system. Unfortunately, this time the Seventh Circuit agreed with the EEOC, finding, “the ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer.” The court then remanded the case to the district court to determine whether mandatory reassignment would be “reasonable in the run of cases,” and whether there were any fact-specific considerations particular to United’s employment system that would render mandatory reassignment unreasonable.

What does this mean? It is hard to say. We do know that the relatively bright line that governed this issue for the last 12 years no longer exists, and that now, “the devil is in the detail.” The burden will now be on an employer to prove that hiring a “minimally qualified” candidate over an undisputedly “more qualified” candidate would be unreasonable and pose an undue hardship on its business. In other words, the duty to accommodate now trumps qualification.

Questions? Please contact WS Attorney Alan E. Seneczko at (262) 560-9696, or email alseneczko@wesselssherman.com .