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Must an Employer Reassign an Employee with a Disability to a Vacant Position Even if More Qualified Candidates Exist?

By on May 21, 2012 in ADA with 0 Comments

The question is an important one and comes down to this: is the reassignment process competitive?

Courts are split on the issue with the most recent decision coming in EEOC v. United Airlines, Inc., 673 F.3d 543, 2012 U.S. App. LEXIS 4713 (7th Cir. 2012).  The case involved United Airlines’ company policy, which does not automatically place a disabled employee into a vacant position.  The company instead would allow an unlimited number of transfer applications, a guarantee of an interview and priority consideration over applicants who are similarly qualified.  But it would not reassign a disabled employee to a position if there were more qualified applicants for that position. The EEOC challenged the policy.

The result of the case depended on an interpretation of the case of EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000).  That case involved a worker who could not perform her conveyor job due to an arm injury.  She applied for vacant clerical jobs within the company but did not get a reassignment.  The EEOC argued that she should have been advanced over a more qualified nondisabled person so long as she was minimally qualified to do the job.  The Seventh Circuit rejected the EEOC position and held that the ADA does not require an employer to reassign a disabled employee to a position for which there is a better qualified employee.

The EEOC argued that Humiston is no longer good law in light of a United States Supreme Court decision in US Airways, Inc. v. Barnett, 535 US 391 (2002).  That case held that just because an accommodation provides a preference does not make the accommodation unreasonable.  Barnett involved a requested reassignment to a mailroom position. The Supreme Court held that it was unreasonable to reassign in this case because the reassignment would have violated a company seniority system, and violating the seniority system would have created an undue hardship to the company.  The EEOC focused on the language in Barnett stating that preferences were not unreasonable on their face and therefore argued that the holding in Humiston is no longer valid.

The Seventh Circuit concluded that Barnett does not invalidate the Humiston case.  “As Humiston-Keeling is still good law and directly on point, the district court rightly concluded that the ADA does not require employers to reassign employees, who will lose their current positions due to disability, to a vacant position for which they are qualified.”

What this means is that there remains a split among the various circuit courts on this issue.  The Tenth Circuit Court of Appeals and the D.C. Circuit favor the view that reassignment to vacant positions is required under the ADA.  The Seventh and Eighth Circuit Courts hold that the ADA does not require employers to reassign disabled employees who will lose their current positions due to disability.


About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.


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