Reassignment to a Vacant Position Under the ADA

The ADA requires employers to provide reasonable accommodations to qualified individuals with disabilities, unless to do so would cause undue hardship. Reasonable accommodations include, inter alia, “reassignment to a vacant position.” 42 U.S.C. ' 12111(9)(b); 29 C.F.R. ' 1630.2(o). However, the circuit courts are split over the scope of the employer's duty to reassign an employee with a disability to a vacant position.

EEOC guidance suggests that employers should consider reassignment to a vacant position during the interactive process when it becomes apparent that other proposed accommodations are ineffective or would result in an undue hardship for the employer. Then, as an accommodation of last resort, if a vacant-equivalent or lower-level position exists or will become available within a reasonable period of time and reassignment would not result in an undue hardship, “the employee gets the vacant position if s/he is qualified for it.” EEOC, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002), www.eeoc.gov/policy/docs/accommodation.html.
EEOC guidance also suggests that the employee should not have to compete with other candidates for the vacant position. If the employee had to compete for the vacant position, “reassignment would be of little value and would not be implemented as Congress intended.”

However, EEOC guidance is not binding on the courts, and the circuit courts are split on whether reassignment to a vacant position is required when an employer has an established policy to hire the most qualified applicant for a position. With its recent decision in United Airlines, the Seventh Circuit joins the Tenth and District of Columbia Circuits as the only circuit courts of appeals to hold that an employer has a duty reassign a disabled employee to a position for which he/she is qualified, barring undue hardship, even when the employer has a policy to hire the most qualified applicant for the position. The remaining circuits to consider the issue have not recognized this duty.

United Airlines Decision

In 2003, United Airlines implemented guidelines for accommodating employees with disabilities who, because of their disability, could no longer perform the essential job functions of their current position, even with reasonable accommodation. United Airlines's guidelines specified that transfer to a vacant-equivalent or lower-level position could be a reasonable accommodation, but also provided that the transfer process would be competitive. Employees requesting transfer as a reasonable accommodation under United Airlines's guidelines were given preference in the application process over equally qualified applicants. Disabled employees, however, did not receive preference over better-qualified applicants.

The EEOC filed suit, alleging that United's policy violated the ADA. The district court granted United's motion to dismiss based on binding precedent from EEOC v. Humiston-Keeling, which provided that the ADA does not compel 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.” 227 F.3d 1024, 1029 (7th Cir. 2000). On March 7, 2012, the Seventh Circuit affirmed the district court's decision, but the panel recommended that the Circuit reconsider the validity of Humiston-Keeling in light of subsequent Supreme Court jurisprudence. The EEOC promptly sought rehearing en banc, and after the panel polled all active members of the Seventh Circuit and obtained their unanimous approval to overrule Humiston-Keeling, the panel vacated its original opinion without holding a formal hearing en banc.

In its revised opinion, the Seventh Circuit considered the validity of Humiston-Keeling following the Supreme Court's decision in U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002). In Barnett, the Supreme Court adopted a two-step framework for determining when an employer is obligated to reassign a disabled employee as an accommodation despite the employer's established seniority system. Under the two-step framework, the employee need only show that the proposed accommodation appears reasonable on its face. The employer then has the burden to show special case-specific circumstances that demonstrate the proposed accommodation would cause the employer undue hardship. After applying this framework to the facts in Barnett, the Supreme Court concluded that reassignment was not reasonable in light of the employer's established seniority policy.

The Seventh Circuit determined that Barnett overruled Humiston-Keeling, in part because there were no categorical exceptions to Barnett's two-step framework for determining when reassignment is a reasonable accommodation. Thus, on remand, the Seventh Circuit ordered the district court to apply Barnett's two-step framework to determine, first, if reassignment is reasonable on its face and, second, if there are case-specific facts that would render mandatory reassignment unreasonable and create an undue hardship.

By concluding that employers should apply the Barnett framework, the Seventh Circuit has indicated that an employer can no longer deny a request for reassignment based on the employer's established policy to hire the best qualified applicant ' instead, the employer must consider whether the requested reassignment is reasonable or would result in undue hardship. The Tenth and District of Columbia Circuit Courts of Appeals have held similarly.

Mandatory Duty to Reassign

Although decided well before Barnett, the Courts of Appeals for the Tenth and District of Columbia Circuits have long recognized that, barring undue hardship, an employer has a duty to reassign a disabled employee to a vacant position for which he/she is qualified as a reasonable accommodation.

In Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1304 (D.C. Cir. 1998), the Court of Appeals for the District of Columbia Circuit held that reassignment meant more than giving a disabled employee permission to apply for a vacant position. The plaintiff, a hospital orderly whose heart condition prevented him from performing his job, sought reassignment to a vacant position. The hospital permitted the employee to apply for a variety of positions, but despite being qualified, the employee was not selected for any of them. The court ruled that the employee could survive summary judgment on his failure-to-accommodate claim because “the reassignment obligation means something more than treating a disabled employee like any other job applicant.” Accordingly, Aka recognized an “affirmative duty on the employer to find a [vacant] position for an employee who has become disabled on the job” even when the employer has a policy of hiring the most qualified candidate. Alston v. Wash. Metro. Area Transit Auth., 571 F. Supp. 2d 77, 83 (D.D.C. 2008).

Similarly, in Smith v. Midland Brake, Inc., 180 F.3d 1154, 1165 (10th Cir. 1999) (en banc), the Tenth Circuit noted that an employer has a mandatory duty to reassign a disabled employee to a vacant position because “the reassignment obligation must mean something more than merely allowing a disabled person to compete equally with the rest of the world for a vacant position.” The court added that there is no support for the conclusion that “an employer may abrogate its ADA obligation to offer reassignment as a reasonable accommodation” because the employer has found “another job applicant that the employer regards as more qualified.”

Thus, like the Seventh Circuit in United Airlines, the District of Columbia and Tenth Circuits recognize that, barring undue hardship, an employer has a duty to reassign a disabled employee to a vacant position for which he/she is qualified despite the employer's policy to hire the most qualified applicant.

Non-Mandatory Duty to Reassign

In contrast, several circuit courts of appeal have held that the duty to reassign a disabled employee to a vacant position does not require employers to give preferential treatment to disabled employees. Accordingly, an employer would not be required to reassign a disabled employee to a vacant position for which he/she is qualified if the employer had an established policy to hire the most qualified applicant.

The Fifth Circuit was the first circuit court of appeals to hold that an employer does not have a duty to reassign a disabled employee to a vacant position, if reassignment would violate the employer's established hiring policy. Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995). In Daugherty, the Fifth Circuit held that, absent evidence that a city treated a part-time bus driver who was diabetic differently from other part-time employees, the city did not violate the ADA by failing to reassign the employee to another position. The city followed the employment practices outlined in its city charter, which gave full-time employees priority over part-time employees. The court ruled that the bus driver's ADA claim failed because he was treated the same as any other part-time employee whose position was eliminated. The court also added that “we do not read the ADA as requiring affirmative action in favor of individuals with disabilities, in the sense of requiring that disabled persons be given priority in hiring or reassignment over those who are not disabled.”

Relying on Daugherty, other circuits have held that the ADA's reassignment provision does not require employers to give preferential treatment to disabled employees over their non-disabled peers. Hedrick v. Western Reserve Care System, 355 F.3d 444, 459 (6th Cir. 2004) (“Although [an employer] may have had an obligation to reassign [an employee] to a vacant position for which she was qualified, the ADA does not mandate that she be afforded preferential treatment.”); Terrell v. USAir, 132 F.3d 621, 627 (11th Cir. 1998) (“We cannot accept that Congress, in enacting the ADA, intended to grant preferential treatment for disabled workers.” (citing with approval Daugherty, 56 F.3d at 700)); Wernick v. Fed. Reserve Bank of N.Y., 91 F.3d 379, 384-85 (2d Cir. 1996) (Defendant “did not have an affirmative duty to provide [plaintiff] with a job for which she was qualified; [defendant] only had an obligation to treat [plaintiff] in the same manner that it treated other similarly qualified candidates.”). Rather, as these holdings suggest, disabled employees are subject to the employer's ordinary hiring practices, which may include a competitive hiring policy.

Likewise, in Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 483 (8th Cir. 2007), the Eighth Circuit ruled that Wal-Mart did not violate its duty to provide reasonable accommodation by hiring a better qualified applicant for a router position instead of reassigning to the position an employee who had injured her arm and could no longer perform her current job as a grocery order filer. The court noted that the “the ADA is not an affirmative action statute and does not require an employer to reassign a qualified disabled employee to a vacant position when such a reassignment would violate a legitimate nondiscriminatory policy of the employer to hire the most qualified candidate.”

In reaching this conclusion, the Eighth Circuit adopted the now overruled Seventh Circuit reasoning from Humiston-Keeling. The court noted that, following Humiston-Keeling, in the Seventh Circuit “ADA reassignment does not require an employer to reassign a qualified disabled employee to a job for which there is a more qualified applicant, if the employer has a policy to hire the most qualified applicant” and found this rule “persuasive and in accordance with the purposes of the ADA.” Accordingly, the court held that Wal-Mart did not violate the ADA's reasonable accommodation requirement by treating the plaintiff the same as all other candidates for the job opening.

Conclusion

The Seventh Circuit's decision in United Airlines is significant for a number of reasons. It signals a change in Seventh Circuit precedent that now requires employers to consider, on a case-by-case basis, whether reassignment to a vacant position for which the employee is qualified is an appropriate reasonable accommodation. Reassignment may be a reasonable accommodation, even if the employee has a policy to hire the most qualified applicant, so long as reassignment to a vacant position would not create an undue hardship for the employer.

United Airlines is also significant because it is the first circuit court decision to interpret Barnett as creating a framework for determining when reassignment to a vacant position is a reasonable accommodation. Although the Seventh Circuit is the only circuit thus far to interpret Barnett as requiring the courts to apply the two-step framework, other circuits may follow suit. In Huber, the Eighth Circuit based its holding on now overruled Seventh Circuit precedent. Now that Humiston-Keeling is no longer the law in the Seventh Circuit, the Eight Circuit could find the decision less persuasive, and reconsider its position on when employers have a duty to reassign a disabled employee to a vacant position.

Finally, the decision is noteworthy because it reminds us that the circuit courts of appeals remain divided over the scope of employers' obligations to reassign disabled employees. While some circuits recognize that, barring undue hardship, employers are obligated to reassign disabled employees to vacant positions for which they are qualified, others have not recognized this duty. Given the current divide, additional Supreme Court guidance may be necessary to clarify the scope of employers' obligations to reassign disabled employees.

Ralph A. Morris, a member of this newsletter's Board of Editors, is Of Counsel to Schiff Hardin in its Chicago Office. Alexis Dominguez is an associate with the firm.

In a recent decision, the U.S. Court of Appeals for the Seventh Circuit held that the Americans with Disabilities Act (ADA) obligates employers to reassign employees with disabilities to vacant positions for which they are qualified as a reasonable accommodation, provided that such accommodation is reasonable on its face and would not present an undue hardship to the employer. EEOC v. United Airlines, Inc., No. 11-1774, 2012 WL 3871503 (7th Cir. Sept. 7, 2012).

The decision reverses Seventh Circuit precedent and adopts an interpretation of the duty to reassign supported by the Equal Employment Opportunity Commission (EEOC), as well as the Tenth and District of Columbia Circuit Courts of Appeals. The decision also represents the most recent development in the split among the circuits on the duty to reassign.

Reassignment As a Reasonable Accommodation

The ADA requires employers to provide reasonable accommodations to qualified individuals with disabilities, unless to do so would cause undue hardship. Reasonable accommodations include, inter alia, “reassignment to a vacant position.” 42 U.S.C. ' 12111(9)(b); 29 C.F.R. ' 1630.2(o). However, the circuit courts are split over the scope of the employer's duty to reassign an employee with a disability to a vacant position.

EEOC guidance suggests that employers should consider reassignment to a vacant position during the interactive process when it becomes apparent that other proposed accommodations are ineffective or would result in an undue hardship for the employer. Then, as an accommodation of last resort, if a vacant-equivalent or lower-level position exists or will become available within a reasonable period of time and reassignment would not result in an undue hardship, “the employee gets the vacant position if s/he is qualified for it.” EEOC, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002), www.eeoc.gov/policy/docs/accommodation.html.
EEOC guidance also suggests that the employee should not have to compete with other candidates for the vacant position. If the employee had to compete for the vacant position, “reassignment would be of little value and would not be implemented as Congress intended.”

However, EEOC guidance is not binding on the courts, and the circuit courts are split on whether reassignment to a vacant position is required when an employer has an established policy to hire the most qualified applicant for a position. With its recent decision in United Airlines, the Seventh Circuit joins the Tenth and District of Columbia Circuits as the only circuit courts of appeals to hold that an employer has a duty reassign a disabled employee to a position for which he/she is qualified, barring undue hardship, even when the employer has a policy to hire the most qualified applicant for the position. The remaining circuits to consider the issue have not recognized this duty.

United Airlines Decision

In 2003, United Airlines implemented guidelines for accommodating employees with disabilities who, because of their disability, could no longer perform the essential job functions of their current position, even with reasonable accommodation. United Airlines's guidelines specified that transfer to a vacant-equivalent or lower-level position could be a reasonable accommodation, but also provided that the transfer process would be competitive. Employees requesting transfer as a reasonable accommodation under United Airlines's guidelines were given preference in the application process over equally qualified applicants. Disabled employees, however, did not receive preference over better-qualified applicants.

The EEOC filed suit, alleging that United's policy violated the ADA. The district court granted United's motion to dismiss based on binding precedent from EEOC v. Humiston-Keeling, which provided that the ADA does not compel 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.” 227 F.3d 1024, 1029 (7th Cir. 2000). On March 7, 2012, the Seventh Circuit affirmed the district court's decision, but the panel recommended that the Circuit reconsider the validity of Humiston-Keeling in light of subsequent Supreme Court jurisprudence. The EEOC promptly sought rehearing en banc, and after the panel polled all active members of the Seventh Circuit and obtained their unanimous approval to overrule Humiston-Keeling, the panel vacated its original opinion without holding a formal hearing en banc.

In its revised opinion, the Seventh Circuit considered the validity of Humiston-Keeling following the Supreme Court's decision in U.S. Airways, Inc. v. Barnett , 535 U.S. 391 (2002). In Barnett, the Supreme Court adopted a two-step framework for determining when an employer is obligated to reassign a disabled employee as an accommodation despite the employer's established seniority system. Under the two-step framework, the employee need only show that the proposed accommodation appears reasonable on its face. The employer then has the burden to show special case-specific circumstances that demonstrate the proposed accommodation would cause the employer undue hardship. After applying this framework to the facts in Barnett, the Supreme Court concluded that reassignment was not reasonable in light of the employer's established seniority policy.

The Seventh Circuit determined that Barnett overruled Humiston-Keeling, in part because there were no categorical exceptions to Barnett's two-step framework for determining when reassignment is a reasonable accommodation. Thus, on remand, the Seventh Circuit ordered the district court to apply Barnett's two-step framework to determine, first, if reassignment is reasonable on its face and, second, if there are case-specific facts that would render mandatory reassignment unreasonable and create an undue hardship.

By concluding that employers should apply the Barnett framework, the Seventh Circuit has indicated that an employer can no longer deny a request for reassignment based on the employer's established policy to hire the best qualified applicant ' instead, the employer must consider whether the requested reassignment is reasonable or would result in undue hardship. The Tenth and District of Columbia Circuit Courts of Appeals have held similarly.

Mandatory Duty to Reassign

Although decided well before Barnett, the Courts of Appeals for the Tenth and District of Columbia Circuits have long recognized that, barring undue hardship, an employer has a duty to reassign a disabled employee to a vacant position for which he/she is qualified as a reasonable accommodation.

In Aka v. Wash. Hosp. Ctr. , 156 F.3d 1284, 1304 (D.C. Cir. 1998), the Court of Appeals for the District of Columbia Circuit held that reassignment meant more than giving a disabled employee permission to apply for a vacant position. The plaintiff, a hospital orderly whose heart condition prevented him from performing his job, sought reassignment to a vacant position. The hospital permitted the employee to apply for a variety of positions, but despite being qualified, the employee was not selected for any of them. The court ruled that the employee could survive summary judgment on his failure-to-accommodate claim because “the reassignment obligation means something more than treating a disabled employee like any other job applicant.” Accordingly, Aka recognized an “affirmative duty on the employer to find a [vacant] position for an employee who has become disabled on the job” even when the employer has a policy of hiring the most qualified candidate. Alston v. Wash. Metro. Area Transit Auth. , 571 F. Supp. 2d 77, 83 (D.D.C. 2008).

Similarly, in Smith v. Midland Brake, Inc. , 180 F.3d 1154, 1165 (10th Cir. 1999) (en banc), the Tenth Circuit noted that an employer has a mandatory duty to reassign a disabled employee to a vacant position because “the reassignment obligation must mean something more than merely allowing a disabled person to compete equally with the rest of the world for a vacant position.” The court added that there is no support for the conclusion that “an employer may abrogate its ADA obligation to offer reassignment as a reasonable accommodation” because the employer has found “another job applicant that the employer regards as more qualified.”

Thus, like the Seventh Circuit in United Airlines, the District of Columbia and Tenth Circuits recognize that, barring undue hardship, an employer has a duty to reassign a disabled employee to a vacant position for which he/she is qualified despite the employer's policy to hire the most qualified applicant.

Non-Mandatory Duty to Reassign

In contrast, several circuit courts of appeal have held that the duty to reassign a disabled employee to a vacant position does not require employers to give preferential treatment to disabled employees. Accordingly, an employer would not be required to reassign a disabled employee to a vacant position for which he/she is qualified if the employer had an established policy to hire the most qualified applicant.

The Fifth Circuit was the first circuit court of appeals to hold that an employer does not have a duty to reassign a disabled employee to a vacant position, if reassignment would violate the employer's established hiring policy. Daugherty v. City of El Paso , 56 F.3d 695, 700 (5th Cir. 1995). In Daugherty, the Fifth Circuit held that, absent evidence that a city treated a part-time bus driver who was diabetic differently from other part-time employees, the city did not violate the ADA by failing to reassign the employee to another position. The city followed the employment practices outlined in its city charter, which gave full-time employees priority over part-time employees. The court ruled that the bus driver's ADA claim failed because he was treated the same as any other part-time employee whose position was eliminated. The court also added that “we do not read the ADA as requiring affirmative action in favor of individuals with disabilities, in the sense of requiring that disabled persons be given priority in hiring or reassignment over those who are not disabled.”

Relying on Daugherty, other circuits have held that the ADA's reassignment provision does not require employers to give preferential treatment to disabled employees over their non-disabled peers. Hedrick v. Western Reserve Care System , 355 F.3d 444, 459 (6th Cir. 2004) (“Although [an employer] may have had an obligation to reassign [an employee] to a vacant position for which she was qualified, the ADA does not mandate that she be afforded preferential treatment.”); Terrell v. USAir , 132 F.3d 621, 627 (11th Cir. 1998) (“We cannot accept that Congress, in enacting the ADA, intended to grant preferential treatment for disabled workers.” (citing with approval Daugherty , 56 F.3d at 700)); Wernick v. Fed. Reserve Bank of N.Y. , 91 F.3d 379, 384-85 (2d Cir. 1996) (Defendant “did not have an affirmative duty to provide [plaintiff] with a job for which she was qualified; [defendant] only had an obligation to treat [plaintiff] in the same manner that it treated other similarly qualified candidates.”). Rather, as these holdings suggest, disabled employees are subject to the employer's ordinary hiring practices, which may include a competitive hiring policy.

Likewise, in Huber v. Wal-Mart Stores, Inc. , 486 F.3d 480, 483 (8th Cir. 2007), the Eighth Circuit ruled that Wal-Mart did not violate its duty to provide reasonable accommodation by hiring a better qualified applicant for a router position instead of reassigning to the position an employee who had injured her arm and could no longer perform her current job as a grocery order filer. The court noted that the “the ADA is not an affirmative action statute and does not require an employer to reassign a qualified disabled employee to a vacant position when such a reassignment would violate a legitimate nondiscriminatory policy of the employer to hire the most qualified candidate.”

In reaching this conclusion, the Eighth Circuit adopted the now overruled Seventh Circuit reasoning from Humiston-Keeling. The court noted that, following Humiston-Keeling, in the Seventh Circuit “ADA reassignment does not require an employer to reassign a qualified disabled employee to a job for which there is a more qualified applicant, if the employer has a policy to hire the most qualified applicant” and found this rule “persuasive and in accordance with the purposes of the ADA.” Accordingly, the court held that Wal-Mart did not violate the ADA's reasonable accommodation requirement by treating the plaintiff the same as all other candidates for the job opening.

Conclusion

The Seventh Circuit's decision in United Airlines is significant for a number of reasons. It signals a change in Seventh Circuit precedent that now requires employers to consider, on a case-by-case basis, whether reassignment to a vacant position for which the employee is qualified is an appropriate reasonable accommodation. Reassignment may be a reasonable accommodation, even if the employee has a policy to hire the most qualified applicant, so long as reassignment to a vacant position would not create an undue hardship for the employer.

United Airlines is also significant because it is the first circuit court decision to interpret Barnett as creating a framework for determining when reassignment to a vacant position is a reasonable accommodation. Although the Seventh Circuit is the only circuit thus far to interpret Barnett as requiring the courts to apply the two-step framework, other circuits may follow suit. In Huber, the Eighth Circuit based its holding on now overruled Seventh Circuit precedent. Now that Humiston-Keeling is no longer the law in the Seventh Circuit, the Eight Circuit could find the decision less persuasive, and reconsider its position on when employers have a duty to reassign a disabled employee to a vacant position.

Finally, the decision is noteworthy because it reminds us that the circuit courts of appeals remain divided over the scope of employers' obligations to reassign disabled employees. While some circuits recognize that, barring undue hardship, employers are obligated to reassign disabled employees to vacant positions for which they are qualified, others have not recognized this duty. Given the current divide, additional Supreme Court guidance may be necessary to clarify the scope of employers' obligations to reassign disabled employees.

Ralph A. Morris, a member of this newsletter's Board of Editors, is Of Counsel to Schiff Hardin in its Chicago Office. Alexis Dominguez is an associate with the firm.