The Federal Circuits currently are split on the issue of whether the ADA requires reassignment of disabled employees to vacant positions when a more qualified candidate exists, with the 10th Circuit and the District of Columbia Circuit holding that the ADA creates preferential treatment for disabled candidates, and the 7th and 8th Circuits holding that while such reassignment may be a reasonable accommodation, the ADA does not obligate employers to reassign a disabled individual if a better qualified applicant exists.
Recently, a panel of the 7th U.S. Circuit Court of Appeals again addressed the issue, and found that prior Seventh Circuit decisions obligated it to find that the ADA does not establish preferential treatment for disabled individuals. EEOC v. United Airlines Inc., 7th Cir., No.11-1774, 3/7/12. In that case, the Equal Employment Opportunity Commission sued United Airlines (UA), based upon UA’s Reasonable Accommodation Guidelines. Those guidelines specifically stated that while transfer to an equivalent or lower-level vacant position may be a reasonable accommodation, the transfer process was a competitive one, and that a disabled employee will not automatically be placed into a vacant position. Under the Guidelines, if a non-disabled individual was more qualified that a disabled applicant, the non-disabled person would be awarded the position. (The policy did state that a disabled employee could submit an unlimited number of transfer applications, and that he or she would be guaranteed an interview and would be given “priority consideration” over a similarly qualified candidate. However, the company reserved the right to hire the most qualified candidate for the position.)
The EEOC brought a lawsuit challenging those Guidelines, and arguing that the ADA requires that a disabled person be advanced over a more qualified nondisabled candidate, “provided that the disabled person is at least minimally qualified to do the job, unless the employer can show undue hardship.” However, the Seventh Circuit previously had rejected that assertion in the case of EEOC v. Humiston-Keeling in 2000, stating that 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.”
Under the concept of stare decisis, judges are obliged to respect the precedents established by prior decisions of the same court. The Seventh Circuit panel hearing the United Airlines matter was bound by the Court’s earlier decision in the Humiston-Keeling case. In Humiston-Keeling, an individual could not perform a conveyor belt job, due to an injured arm. Although she applied for a number of clerical positions, the employee was not hired for any of them, because – according to the employer – better qualified candidates were chosen. In Humiston-Keeling, the Seventh Circuit rejected the EEOC’s argument and held that the ADA did not require preferential hiring if a more qualified applicant existed.
In an interesting twist, however, the panel urged full court review of the issue, stating that “the present panel of judges strongly recommends en banc consideration of the present case since the logic of EEOC’s position on the merits, although insufficient to justify departure by this panel from the principles of stare decisis, is persuasive . . . .” Based upon that statement, it seems evident that the Seventh Circuit may be inclined to follow the 10th and D.C. Circuits in holding that an employer is obligated to reassign a disabled individual to a vacant position, so long as the individual is minimally qualified for the position, and there is no undue hardship created by that placement.
Because this is an unsettled issue, employers should be cautious when making decisions regarding the reassignment of disabled employees, and should fully document the reasons for such decisions to assure compliance with the ADA.