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

The case is EEOC v. United Airlines, decided on March 7, 2012 [2012 U.S. App. LEXIS 4713]. The facts are that a female (Houser) could no longer perform her job (conveyer). After reassignment to a temporary position (greeter), Houser applied for vacant clerical jobs, which were awarded to other non-disabled applicants. The EEOC’s argument is 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”, which was rejected by a 3-judge panel.

In rendering this ruling, the court followed a prior 7th Circuit precedent in EEOC v. Humiston-Keeting (2000) in which the court ruled that the requirement to prefer disabled employees over more qualified nondisabled employees as “affirmative action with a vengeance.” In Humiston, the EEOC made the same argument for an injured “warehouse picker”, to which the 7th Circuit replied:

[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)

A similar ruling was then rendered by the 8th Circuit in Huber v. Wal-Mart (2007), where 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 the 7th Circuit ruling in Humiston, 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.

On the other hand, we have Aka v. Washington Hospital (1998). In AKA, an orderly who had heart by-pass surgery was forced to compete with non-disabled hospital employee, and the DC Circuit ruled:

To assign, according to Webster's Third New International Dictionary, means "to appoint (one) to a post or duty." An employee who is allowed to compete for jobs precisely like any other applicant has not been "reassigned"; he may have changed jobs, but he has done so entirely under his own power, rather than having been appointed to a new position.

Similarly, in Smith v. Midland Brake (1999), the 10th ruled that “requiring the reassigned employee to be the best qualified employee for the vacant job, is judicial gloss unwarranted by the statutory language or its legislative history.”

Thus, we have conflicting view of the 7th and 8th Circuits versus the DC and 10th Circuits. Interesting, the current United Airlines case, the three-judge panel recommended an en banc hearing to determine whether Humiston is good law. As interesting, the Supreme Court was going to review the Huber ruling, but the parties settled prior to oral arguments. In short, the deck is stacked in favor of a Supreme Court review on the issue of whether an injured employee that is qualified to perform another job enjoys preference for that job relative to more qualified nondisabled applicants.

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