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Humiston-Keeling Still Controls Reasonable Accommodation Claims

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By Robyn Hagan Cain on March 09, 2012 9:08 AM

The Seventh Circuit Court of Appeals ruled this week that the Americans with Disabilities Act (ADA) does not require employers to reassign employees who will lose their current positions due to disability to a vacant position.

In the case, Equal Employment Opportunity Commission v. United Airlines, the circuit denied the EEOC's request for a change in how the court interprets the Americans with Disabilities Act (ADA).

In 2003, United Airlines implemented guidelines for accommodating employees who, because of disability, can no longer do the essential functions of their current jobs, even with reasonable accommodation.

While the guidelines provide that "transfer ... [to] an equivalent or lower-level vacant position" may be a reasonable accommodation, the transfer process is still competitive. Employees needing accommodation will be given preference -- meaning they can submit an unlimited number of transfer applications, they are guaranteed an interview, and they will receive priority consideration over a similarly-qualified applicant -- but transfer is not guaranteed.

The EEOC sued United, claiming that the company's guidelines violate the ADA because employers are required to reassign employees who will lose their jobs due to disability to a vacant position for which they are qualified. The district court dismissed the suit on a 12(b)(6) motion, ruling that the Seventh Circuit Court of Appeals had previously rejected the EEOC's interpretation of the ADA in EEOC v. Humiston-Keeling.

As there was a controlling, on-point case that supported United's position, the EEOC's appeal was dedicated to convincing the Seventh Circuit to overrule its prior decision. The EEOC tried to persuade the Seventh Circuit that the Supreme Court's US Airways, Inc. v. Barnett decision undermines Humiston-Keeling. It was unsuccessful.

The Seventh Circuit Court of Appeals noted that it has relied on the Humiston-Keeling reasoning three times since the Supreme Court's Barnett opinion. (The Eighth Circuit adopted Humiston-Keeling after Barnett as well.) Since the Seventh Circuit had not attempted to abandon Humiston-Keeling after Barnett, the appellate court concluded that the district court properly dismissed the EEOC's claim.

Employment lawyers, take note: If you have a client with an EEOC right to sue letter who is claiming an ADA violation based on failure to reassign, you're unlikely to win in the Seventh Circuit. The Tenth and D.C. Circuits are the only appellate courts that recognize an ADA reassignment requirement.

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