October 1, 2020

Volume X, Number 275

September 30, 2020

Subscribe to Latest Legal News and Analysis

September 29, 2020

Subscribe to Latest Legal News and Analysis

September 28, 2020

Subscribe to Latest Legal News and Analysis

Employers Must Reassign Disabled Employees To Vacant Positions Ahead of More Qualified Candidates? Seventh Circuit Says, "Yes."

A recent decision from the Seventh Circuit Court of Appeals dramatically expands the demands placed on employers to accommodate employees with disabilities.  In EEOC v. United Airlines, Inc., No. 11-1774, the Seventh Circuit Court of Appeals reversed its previous holding in EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000), in which the court had ruled employers did not need to automatically assign disabled employees if the employers used competitive systems for evaluating applications for vacant positions within the company.  According to that previous case, employers were free to choose the most qualified candidate for the position even if a disabled candidate applied.

In United Airlines, the company had a competitive transfer policy under which disabled employees were given preference when considering candidates for vacant positions, but were not automatically placed into those positions.  Under the Seventh Circuit’s previous line of cases, this approach was perfectly legal.  In light of the United States Supreme Court’s opinion in U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002), however, the Seventh Circuit reversed its previous holdings and ruled that employers must automatically reassign disabled employees to vacant positions unless the employer can prove it would be an undue hardship.  The Court then sent this case back to the U.S. District Court for a decision on whether United’s failure to reassign disabled employees is legal under this newly defined standard.

The Seventh Circuit’s decision to overturn the previous standard was based on the United States Supreme Court’s decision in Barnett.  In that case, the Supreme Court was reviewing an employer’s seniority policy and refusal to violate that seniority policy when evaluating disabled employees for reassignment to vacant positions.  The Supreme Court said disabled workers seeking jobs with lessened physical demands generally cannot bump more senior workers from those jobs and upheld the employer’s approach in that case, but the court established a two-part test for analyzing whether reassignment is reasonable.  First, the “plaintiff employee . . . need only show that an accommodation seems reasonable on its face.”  Once that occurs, the burden shifts to the defendant/employer to “show special (typically case-specific) circumstances that demonstrate undue hardship in the particular circumstances.”

Applying that two-part test, the Seventh Circuit in United Airlines held, 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.”  Although it is well established that reassignment to a vacant position is a possiblereasonable accommodation, reassignment as a mandatory accommodation is a significant expansion of the obligations placed on employers.

Although the Seventh Circuit does not encompass North Carolina, this case suggests a likely result if the same issue were litigated here.  The Court’s opinion is based on a United States Supreme Court case, and the opinion points out two other circuits, the D.C. Circuit and the Tenth Circuit, that have followed the same logic.  With that in mind, North Carolina employers should consult experienced employment counsel when making decisions about reassigning disabled employees to vacant positions in order to avoid the likelihood of costly litigation.

© 2020 Poyner Spruill LLP. All rights reserved.National Law Review, Volume II, Number 339


About this Author

Kevin M. Ceglowski, Employment and Labor Lawyer, Poyner Spruill, Law Firm

Kevin represents employers in many areas of labor and employment law, including race, age, gender, religion, national original, and disability employment discrimination claims, wrongful discharge claims, and wage and hour claims. He defends clients before administrative agencies such as the Equal Employment Opportunity Commission, the Department of Labor, and the North Carolina Employment Security Commission, in state and federal courts, and in arbitrations. Kevin also provides guidance to management to ensure employment practices are in full compliance with all...

David L. Woodard, Employment Litigation Attorney, Poyner Spruill, Law firm

David practices in the area of employment litigation.  He regularly advises and defends clients in race, age, disability and sex discrimination and harassment cases; reviews handbooks and termination issues; and provides compliance advice on matters of employment law.

Representative Experience

McNeil v. Scotland County - Obtained summary judgment for employer where plaintiff alleged race discrimination and retaliation in violation of Title VII of the Civil Rights Act as well as violation of the Americans with Disabilities Act. Successfully defended the judgment in the Fourth Circuit Court of Appeals.

Williams v. City of Fayetteville - Obtained summary judgment on former employee’s claims of retaliation for exercising First Amendment rights, violations of due process, and intentional infliction of emotional distress.