Contributed by Jill Cheskes
On March 7, 2012, the Seventh Circuit revisited an issue it decided 12 years ago. The issue: whether an employer must reassign a disabled employee, who can no longer perform his job, to a vacant position over a more qualified candidate as a reasonable accommodation under the ADA.
Twelve years ago, in the case of EEOC v. Humiston-Keeling, the Seventh Circuit found the answer to be in the negative holding that the ADA does not require preference to be given to disabled employees over more qualified candidates. Nonetheless, the EEOC recently brought a case against United Airlines alleging a violation of the ADA for precisely the same issue. The reason for this is that since the Humiston-Keeling case was decided, the US Supreme Court issued a decision in a similar case that seemingly contradicted the Seventh’s Circuit holding.
The Supreme Court case, however, involved a seniority system, and the Supreme Court rejected the concept set forth in Humiston-Keeling that preference need not be given to disabled employees. The Supreme Court said it was a case-specific approach and that, in a situation with a seniority system, violating that system would present an undue hardship.
The EEOC argued that the Supreme Court case essentially overruled Humiston-Keeling. The Seventh Circuit found otherwise and thought Humiston-Keeling was still good law. However, finding the EEOC’s argument persuasive, the Seventh Circuit panel decision strongly recommended the full Seventh Circuit consider the case.
Thus, while the current law of the Seventh Circuit does not require an employer to reassign a disabled employee to a vacant position over a more qualified candidate, that could very well change in the near future, which would, in essence, require employers to give preference to disabled employees over more qualified candidates in order to not violate the ADA.