E.E.O.C. v. UNITED AIRLINES, INC. No. 11-1774.
693 F.3d 760 (2012)
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. UNITED AIRLINES, INC., Defendant-Appellee.
United States Court of Appeals, Seventh Circuit.
Decided September 7, 2012.
Barbara L. Sloan (argued), Attorney, Equal Employment Opportunity Commission, Washington, DC, for Plaintiff-Appellant.
Nina Gidden Stillman (argued), Attorney, Morgan, Lewis & Bockius LLP, Chicago, IL, for Defendant-Appellee.
Before CUDAHY, KANNE, and SYKES, Circuit Judges.
CUDAHY, Circuit Judge.
First, the procedural posture of this case requires brief discussion. An earlier version of this opinion suggested that rehearing en banc was warranted for the full court to consider overruling EEOC v. Humiston-Keeling,
In this case, the Equal Employment Opportunity Commission (EEOC) asks this court to change its interpretation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA). The case turns on the meaning of the word "reassignment." The ADA includes "reassignment to a vacant position" as a possible "reasonable accommodation" for disabled employees. 42 U.S.C. § 12111(9). The EEOC contends that "reassignment" under the ADA requires employers to appoint employees who are losing their current positions due to disability to a vacant position for which they are qualified. However, this court has already held in Humiston-Keeling, 227 F.3d at 1029, that the ADA has no such requirement. The EEOC argues that the Supreme Court's ruling in Barnett, 535 U.S. at 391, 122 S.Ct. 1516, undermines Humiston-Keeling. Several courts in this circuit have relied on Humiston-Keeling in post-Barnett opinions, though it appears that these courts did not conduct a detailed analysis of Humiston-Keeling's continued vitality. The present case offers us the opportunity to correct this continuing error in our jurisprudence. While we understand that this may be a close question, we now make clear that Humiston-Keeling did not survive Barnett. We reverse and hold that the ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer. We remand with instructions that the district court determine if mandatory reassignment would be reasonable in the run of cases and if there are fact-specific considerations particular to United's employment system that would render mandatory reassignment unreasonable in this case.
In 2003, United Airlines set out Reasonable Accommodation Guidelines that address accommodating employees who, because of disability, can no longer do the essential functions of their current jobs even with reasonable accommodation. While the guidelines note that "transfer... [to] an equivalent or lower-level vacant position" may be a reasonable accommodation, the guidelines specify that the transfer process is competitive. Accordingly, employees needing accommodation will not be automatically placed into vacant positions but instead will be given preferential treatment. This allows employees needing accommodation to submit an unlimited number of transfer applications, be guaranteed an interview and receive priority consideration over a similarly qualified applicant — that is, if two candidates are equally qualified, the employee-applicant seeking accommodation will get the job.
The EEOC filed suit in San Francisco, alleging that United's policy violates the ADA. The district court granted United's motion to transfer the case to Illinois. That district court granted United's motion to dismiss the suit under Rule 12(b)(6). The court noted that binding precedent, Humiston-Keeling, 227 F.3d at
We review a dismissal under Rule 12(b)(6) de novo. Tamayo v. Blagojevich,
The district court noted that Humiston-Keeling is directly on point and has not been overruled by the Seventh Circuit. The district court is correct on both points. Humiston-Keeling involved a worker, Houser, who could no longer perform her conveyor job due to an injured arm. 227 F.3d at 1026. After taking a temporary greeter position, Houser applied for vacant clerical positions within the company but did not get any of these jobs. Id. The EEOC brought suit, arguing the "reassignment form of reasonable accommodation... require[s] that the disabled person be advanced over a more qualified nondisabled person, provided only that the disabled person is at least minimally qualified to do the job, unless the employer can show undue hardship." Id. at 1027 (internal quotation marks omitted). This court rejected that assertion, holding 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." Id. at 1029.
The EEOC invites this court to overturn Humiston-Keeling, arguing that Barnett undercuts the reasoning of Humiston-Keeling. In Barnett, the Supreme Court considered reassignment under the ADA in the context of a seniority system. 535 U.S. at 393-95, 122 S.Ct. 1516. Robert Barnett injured his back while working as a cargo-handler for U.S. Airways. Id. at 394, 122 S.Ct. 1516. He invoked seniority, not his disability status, and transferred to a mailroom position. Id. Later, at least two employees senior to Barnett intended to bid for the mailroom position. Id. Barnett argued he should be allowed to keep this position and claimed his reassignment was a reasonable accommodation mandated by the ADA because he was an individual with a disability capable of performing the essential functions of the mailroom job. Id. at 394-95, 122 S.Ct. 1516.
The Supreme Court first noted that "[t]he 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.'" Id. at 398, 122 S.Ct. 1516 (emphasis in original). Instead, the Court outlined a two-step, case-specific approach. The "plaintiff/employee ... need only show that an `accommodation' seems reasonable on its face, i.e., ordinarily or in the run of cases." Id. at 401, 122 S.Ct. 1516. Once the plaintiff has shown he seeks a reasonable method of accommodation, the burden shifts to the defendant/employer to "show special (typically case-specific) circumstances that demonstrate undue hardship in the particular circumstances." Id.
The EEOC points out that U.S. Airways relied heavily on Humiston-Keeling and, more importantly, that the Barnett Court flatly contradicted much of the language of Humiston-Keeling. U.S. Airways argued that it was not required to grant a requested accommodation that would violate a disability-neutral rule, using the argument from Humiston-Keeling that the ADA is "not a mandatory preference act" but only a "nondiscrimination statute." 227 F.3d at 1028. The Barnett Court rejected this anti-preference interpretation of the ADA, noting that this argument "fails to recognize what the Act specifies, namely, that preferences will sometimes prove necessary to achieve the Act's basic equal opportunity goal." 535 U.S. at 397, 122 S.Ct. 1516. Merely following a "neutral rule" did not allow U.S. Airways to claim an "automatic exemption" from the accommodation requirement of the Act. Id. at 398, 122 S.Ct. 1516. Instead, U.S. Airways prevailed because its situation satisfied a much narrower, fact-specific exception based on the hardship that could be imposed on an employer utilizing a seniority system. Id. at 405, 122 S.Ct. 1516.
The analysis of Barnett's impact on Humiston-Keeling is further complicated by the fact that we are not the first panel to consider this issue. This court considered Barnett's relationship to Humiston-Keeling, albeit in an abbreviated fashion and without the benefit of briefing, in Mays v. Principi,
Id. at 872 (internal citation omitted).
The EEOC argues, and we agree, that the Mays Court incorrectly asserted that a best-qualified selection policy is essentially the same as a seniority system. In equating the two, the Mays Court so enlarged the narrow, fact-specific exception set out in Barnett as to swallow the rule. While employers may prefer to hire the best qualified applicant, the violation of a best-qualified selection policy does not involve the property-rights and administrative concerns (and resulting burdens) presented by the violation of a seniority policy. To strengthen this critique, the EEOC points out the relative rarity of seniority systems and the distinct challenges of mandating reassignment in a system where employees are already entitled to particular positions based on years of employment.
The Supreme Court has found that accommodation through appointment to a vacant position is reasonable. Absent a showing of undue hardship, an employer must implement such a reassignment policy. The Mays Court understandably erred in suggesting that deviation from a best-qualified selection policy always represented such a hardship.
In any event, the Barnett framework does not contain categorical exceptions. On remand, the district court must conduct the Barnett analysis. In this case, the district court must first consider (under Barnett step one) if mandatory reassignment is ordinarily, in the run of cases, a reasonable accommodation.
For its part, United argues that this court should not abandon Humiston-Keeling, in part because the Eighth Circuit explicitly adopted the reasoning of Humiston-Keeling in Huber v. Wal-Mart,
For the foregoing reasons, the judgment of the district court is REVERSED and we REMAND this matter to the district court for further consideration consistent with this opinion.
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