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by Art Gutman Ph.D., Professor, Florida Institute of Technology

The case is EEOC v. United Airlines, originally decided on March 7, 2012 [2012 U.S. App. LEXIS 4713] and posted in an Alert dated March 12, 2012. The more recent United Airlines ruling, decided on September 7, 2012 [2012 U.S. App. Lexis 18804] is an about face on both the earlier ruling in EEOC v. United Airlines and a prior rulings in EEOC v. Humiston-Keeling (2000) [227 F.3d. 1094] and Mays v. Principi (2002) [301 F.3d 866)]. Bare with me … some of this is complicated.

The facts in EEOC v. United Airlines are that a female (Houser) could no longer perform her job (conveyer) and, after reassignment to a temporary position (greeter), she applied for vacant clerical jobs that were awarded to other non-disabled applicants. The EEOC argued that "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.” This argument was rejected based on the prior 7th Circuit precedent in EEOC v. Humiston-Keeling, a case in which the EEOC had made the same argument as above for an injured “warehouse picker” and the 7th Circuit ruled that the requirement to prefer disabled employees over more qualified nondisabled employees as “affirmative action with a vengeance.” The 7th Circuit ruled further:

[G]iving a job to someone …. solely on the basis of his status as a member of a statutorily protected group. It goes well beyond enabling the disabled applicant to compete in the workplace, or requiring the employer to rectify a situation (such as lack of wheelchair access)

In the more recent September 7, 2012 ruling, the 7th Circuit, overturned Humiston-Keeling, Mays v. Principi, and its March 7, 2012 ruling in the EEOC v. United Airlines. Previously, the 7th Circuit refused to review Humiston-Keeling en banc. However, afterwards, every active member of the 7th Circuit approved overruling Humiston-Keeling, reasoning it had misinterpreted the Supreme Court’s precedent in U.S. Airways v. Barnett (2002) [535 U.S. 331]. Or in the words of the court:

[W]e 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.

The Mays v. Principi case had facts similar to Humiston-Keeling, the difference being it was decided under the Rehabilitation Act of 1973 as opposed to the ADA. In Mays, the 7th Circuit equated “seniority” (a legitimate reason for trumping reassignment of a disabled person) with “undue hardship.” In rejecting Mays, the 7th Circuit ruled:

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.

The bottom line is that the United Airlines case is now remanded back to the district court to determine if (1) “if mandatory reassignment is ordinarily, in the run of cases, a reasonable accommodation” and (2) “if there are fact-specific considerations particular to United's employment system that would create an undue hardship and render mandatory reassignment unreasonable.”

A final point to noted is that the 8th Circuit more recently rendered a ruling similar to Humiston-Keeling in Huber v. Wal-Mart (2007) [493 F.3d. 1002]. In that case, an injured dry grocery order filler who earned $13 dollars per hour was reassigned to a job in maintenance paying half his former wage. Huber than applied for another $13 dollar per hour job he was qualified for (router), but Wal-Mart hired what it considered a more qualified applicant. Citing Humiston-Keeling, the 8th Circuit ruled:

We agree and conclude the ADA is not an affirmative action statute and does not require an employer to reassign a qualified disabled employee to a vacant position when such a reassignment would violate a legitimate nondiscriminatory policy of the employer to hire the most qualified candidate.

Where does that leave us? The Huber ruling was appealed to the Supreme Court, but the case was settled beforehand. Therefore, it is probably the case that the Huber ruling is likely bad law, and employers should take note of this.

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