Disability Law: Seventh Circuit Panel Invites En Banc Petition Regarding Reassignment

As ADA mavens know, there is a persistent conflict in the circuits regarding the scope of an employer's duty, as a reasonable accommodation, to reassign an employee with a disability to a vacant position. The Tenth and D.C. Circuits have held that, when an employee acquires a disability that makes her unable to perform the essential functions of her current position even with a reasonable accommodation, the employer has a duty to reassign the employee to an equivalent, vacant position for which she is qualified -- whether or not she is the "most" qualified applicant for that position. The Seventh and Eighth Circuits have held that the reassignment duty is satisfied so long as the employer gives the employee the opportunity to apply for a vacant, equivalent position, but that the employer may refuse to give the new position to the employee if she is not the most qualified applicant. The Supreme Court granted cert. to resolve this conflict in Huber v. Wal-Mart Stores in 2007, but it dismissed the writ of certiorari after the parties settled. (Disclosure: I was one of Huber's counsel in the Supreme Court.)

Today, a panel of the Seventh Circuit issued an opinion that invited an en banc petition asking it to change its position on this issue. Here's the key language, from a case entitled EEOC v. United Air Lines, Inc.:

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 EEOC contends that the ADA requires employers to reassign employees, who will lose their current positions due to disability, to a vacant position for which they are qualified. However, this court has already held, in EEOC v. Humiston-Keeling, 227 F.3d 1024, 1029 (7th Cir. 2000), that the ADA has no such requirement. The EEOC argues that the Supreme Court’s ruling in US Airways, Inc. v. Barnett, 535 U.S. 391 (2002), 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. In accordance with this circuit’s case law, we affirm the district court’s holding that the ADA does not mandate reassignment. However, this circuit might reconsider the impact of Barnett on Humiston-Keeling.

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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 Stores, 486 F.3d 480, 483-84 (8th Cir. 2007). 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. A circuit split will remain even if this court adopts the position of the Tenth and D.C. Circuits. However, there is no harm in lessening this split if, in fact, Barnett undermines Humiston-Keeling. In that respect, the present panel of judges strongly recommends en banc consideration of the present case since the logic of EEOC’s position on the merits, although insufficient to justify departure by this panel from the principles of stare decisis, is persuasive with or without consideration of Barnett.