The 7th Circuit reversed its own precedent on reassignment as a reasonable accommodation under the Americans with Disabilities Act (ADA) in its Sept. 7 ruling in Equal Employment Opportunity Commission (EEOC) v. United Airlines Inc. It found that the ADA requires that employers reassign employees who can no longer perform the functions of their jobs due to disability to other positions. 

This decision overrules both EEOC v. Humiston-Keeling—a 2000 7th Circuit decision finding that although reassignment was a possible accommodation, the ADA did not require it—and the 7th Circuit’s previous ruling in United Airlines in March.

United Airlines has had a policy since 2003 that states that its transfer process is competitive. Employees who need accommodation are given preferential treatment under this policy but aren’t guaranteed to be assigned to a vacant position if there is a better-qualified candidate. The EEOC claims this policy violates the ADA.

“If all reassignment meant was the opportunity to compete for a vacancy, there would be no accommodation at all,” says Christopher Kuczynski, assistant legal counsel for the EEOC and director of the agency’s ADA division. “Presumably anyone would be able to compete for a vacancy and get the position if he or she was best qualified.”

Policy Reconsideration

A major factor in this turnaround was the Supreme Court’s 2002 decision in U.S. Airways, Inc. v. Barnett, which looked at reassignment in the context of U.S. Airways’ seniority system. Although the high court found that U.S. Airways did not have to violate its seniority system to provide reassignment as an accommodation, it did write that “the simple fact that an accommodation would provide a ‘preference’—in the sense that it would permit the worker with a disability to violate a rule that others must obey—cannot in and of itself, automatically show that the accommodation is not ‘reasonable.’”

The 7th Circuit first considered United Airlines on March 7. In that ruling, the court wrote that “the EEOC’s interpretation may in fact be a more supportable interpretation of the ADA,” but because the 7th Circuit had already interpreted Humiston-Keeling in other cases after Barnett, it felt it had to allow United’s policy to stand. The EEOC then petitioned for rehearing, and the court, upon rehearing, reversed its decision.

“Certainly the court did look carefully at Barnett, and it was probably the most important factor that caused the court to change course on this issue,” Kuczynski says. For more on how the Barnett court approached accommodation, see “Two-Step Test.”

“Undue” Uncertainty

So now, if an employee is no longer able to perform her job functions due to a disability, and there is a vacant position within the company for which she is qualified, the employer is required to assign her to the position, unless such an accommodation would prove an “undue hardship” to the employer.

However, it’s difficult to say what circumstances might constitute an undue hardship. The 7th Circuit did not decide whether a violation of United’s policy would count as an undue hardship, instead remanding the case back to the district court for further proceedings and providing little guidance on the matter. The only concrete example we have comes from Barnett, in which the Supreme Court found that violating U.S. Airways’ seniority system “would not be reasonable in the run of cases.” But the court was careful to say that it was not creating a per se exception for all seniority systems.

“The employer has the burden to show that this constitutes an unreasonable accommodation or it constitutes an undue hardship,” says Mark Spognardi, a partner at Arnstein & Lehr.

With the looming uncertainty, employers would do well to avoid pushing the issue. 

“Based on this case, it would be very tough to advise any of our clients that they should make a decision that would draw litigation over this,” says Barnes & Thornburg Partner John Kuenstler. “Our recommendation to clients is that they take a hard look at their current accommodation policies and how they’re considering reassignment … The EEOC is going to be out there looking at other policies like the one that United Airlines has. I don’t know what would keep them from going after another employer whose policy wasn’t in line with this case.”

Still, Kuczynski stresses that reassignment is “an accommodation of last resort,” only to be considered if there is no way of accommodating the disabled person within the confines of his current position. And there are limitations to what employers have to do. They don’t have to create a position to accommodate the disabled employee, promote the person or assign him to a position for which he is not qualified.

For this reason, companies should make sure that their job descriptions clearly define the essential functions of those positions to be better able to determine if a disabled employee is qualified for reassignment as a reasonable accommodation.

“The court expects employers to engage in an interactive process to explore the possibility of accommodation and whether it’s reasonable,” Spognardi says. “And that’s really what the court is looking for. It’s as if they’re looking for a good-faith discussion of what can be done to accommodate this person. … I really don’t think this case is a nightmare. It’s actually guidance for the employer.”