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E.E.O.C. v. UNITED AIRLINES, INC.
693 F.3d 760 (2012)
United States Court of Appeals, Seventh Circuit.
Argued October 20, 2011.
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.3 Assuming that the district court finds that mandatory reassignment is ordinarily reasonable, the district must then determine (under Barnett step two) if there are fact-specific considerations particular to United's employment system that would create an undue hardship and render mandatory reassignment unreasonable. 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, 486 F.3d 480, 483-84 (8th Cir.2007), reh'g en banc denied, 493 F.3d 1002 (8th Cir.2007), cert. granted in part, 552 U.S. 1074, 128 S.Ct. 742, 169 L.Ed.2d 579 (2007), cert. dismissed, 552 U.S. 1136, 128 S.Ct. 1116, 169 L.Ed.2d 801 (2008). The Eighth Circuit's wholesale adoption of Humiston-Keeling has little import. The opinion adopts Humiston-Keeling without analysis, much less an analysis of Humiston-Keeling in the context of Barnett.4 Two of
our sister Circuits have already determined that the ADA requires employers to appoint disabled employees to vacant positions, provided that such accommodations would not create an undue hardship (or run afoul of a collective bargaining agreement): the Tenth in Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir.1999) (en banc) and the D.C. in Aka v. Washington Hospital Center, 156 F.3d 1284 (D.C.Cir.1998) (en banc). We feel that in light of Barnett, pursuant to Circuit Rule 40(e) as suggested under the procedure described above, we must adopt a similar approach. 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.
1. A helpful summary of the Barnett framework is provided in Shapiro v. Township of Lakewood, 292 F.3d 356, 361 (3d Cir.2002):
It therefore appears that the Court has prescribed the following two-step approach for cases in which a requested accommodation in the form of a job reassignment is claimed to violate a disability-neutral rule of the employer. The first step requires the employee to show that the accommodation is a type that is reasonable in the run of cases. The second step varies depending on the outcome of the first step. If the accommodation is shown to be a type of accommodation that is reasonable in the run of cases, the burden shifts to the employer to show that granting the accommodation would impose an undue hardship under the particular circumstances of the case. On the other hand, if the accommodation is not shown to be a type of accommodation that is reasonable in the run of cases, the employee can still prevail by showing that special circumstances warrant a finding that the accommodation is reasonable under the particular circumstances of the case.
2. Instead, the employer placed the disabled employee in a clerical position.
3. We do not believe this step will cause the district court any great difficulty. This is the very accommodation analyzed in Barnett. There, the Supreme Court "assume[d] that normally such a request would be reasonable within the meaning of the statute, were it not for one circumstance, namely, that the assignment would violate the rules of a seniority system." 535 U.S. at 403, 122 S.Ct. 1516. There is no seniority system at issue here. However, we suppose it is possible there is some comparable circumstance of which we are unaware. We note for completeness that if mandatory reassignment is not ordinarily a reasonable accommodation, the EEOC can still prevail if it shows that special factors make mandatory reassignment reasonable in this case.
4. It is also worth noting that the Supreme Court granted certiorari in Huber, but the parties settled and the Supreme Court dismissed the case. 552 U.S. 1136, 128 S.Ct. 1116, 169 L.Ed.2d 801 (2008).
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