Seventh Circuit Holds that the ADA Mandates Reassignment of Disabled Employees to Vacant Positions

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Overruling its own precedent, the U.S. Court of Appeals for the Seventh Circuit (which covers Indiana, Illinois, and Wisconsin) recently held that the Americans with Disabilities Act (ADA) requires employers to reassign disabled employees to vacant positions for which they are qualified, provided that such accommodation ordinarily would be reasonable and would not present an undue hardship to the employer. EEOC v. United Airlines, Inc., No. 11-1774, Sept. 7, 2012.

In 2003, United Airlines established guidelines that addressed the reasonable accommodation of disabled employees. The guidelines provided that a transfer to an equivalent position may be a reasonable accommodation, but that the transfer process remained competitive. Consequently, disabled employees would not automatically be placed into a vacant position, but instead, they would be given preferential treatment. Under the guidelines, employees needing an accommodation could submit an unlimited number of transfer applications, they would be guaranteed interviews, and they would receive priority consideration over similarly qualified applicants. If two candidates were equally qualified, the disabled employee seeking the accommodation would be awarded the job.

The Equal Employment Opportunity Commission (EEOC) challenged the guidelines, and a district court granted United Airlines’ motion to dismiss. The district court relied upon the Seventh Circuit’s 2000 decision in EEOC v. Humiston-Keeling, which held that “the ADA does not require an employer to reassign a disabled employee to a job for which there is a better applicant, provided it’s the employer’s consistent and honest policy to hire the best applicant for the particular job in question.”

On appeal, the EEOC argued that “reassignment to a vacant position” is a possible ADA reasonable accommodation, and it required the transfer of a disabled employee to a vacant position who lost his or her position due to a disability. The Seventh Circuit agreed and concluded that Humiston-Keeling did not survive the U.S. Supreme Court’s decision in US Airways, Inc. v. Barnett. In remanding the case to the district court, the Seventh Circuit instructed the district court to conduct the two-step, case-specific analysis for determining whether reassignment is a reasonable accommodation as outlined in Barnett.

In Barnett, the Supreme Court addressed reassignment in the context of a seniority system. The plaintiff Barnett argued that, despite his employer’s seniority system, he was entitled to reassignment to a mailroom job over two more senior employees. The Supreme Court outlined a two-step process to determine whether a job reassignment is required despite a disability-neutral rule of the employer. The first step requires the employee to show that the type of accommodation seems reasonable on its face—that is, ordinarily or in the “run of cases.” The second step varies depending on the outcome of the first step. If the employee shows that the accommodation is reasonable in the run of cases, the burden shifts to the employer to show special case-specific circumstances that demonstrate undue hardship. Alternatively, if the employee fails to show that the accommodation is reasonable in the run of cases, the employee can still prevail by showing that the accommodation is reasonable under the special circumstances of the case.

The Barnett Court ultimately ruled in favor of US Airways because the accommodation at issue, violation of its seniority system, would create an undue hardship. The Supreme Court held that the presence of a seniority system will ordinarily render mandatory reassignment of a disabled employee unreasonable. Nonetheless, the Supreme Court noted that it was “not creating a per se exception” for seniority systems because an employee “remains free to show that special circumstances warrant a finding that, despite the presence of a seniority system…the requested ‘accommodation’ is ‘reasonable’ on the particular facts.”

Although noting the Barnett Court’s conclusion that a transfer in violation of a seniority system “would not be reasonable in the run of cases,” the Seventh Circuit held it was error to equate a “best-qualified selection policy” with a seniority system. The court stated that “while employers may prefer to hire the best qualified applicant, the violation of a best qualified selection policy does not involve the property-rights and administrative concerns (and resulting burdens) presented by the violation of a seniority policy.”

Accordingly, the Seventh Circuit expressly overruled Humiston-Keeling and held that the case is no longer good law. It also noted that its decision was consistent with the Tenth Circuit’s en banc decision in Smith v. Midland Brake, Inc., and the D.C. Circuit’s en banc decision in Aka v. Washington Hospital Center, in which the courts concluded that the ADA requires employers to appoint disabled employees to vacant positions, absent undue hardship or violation of a collective bargaining agreement.

In light of United Airlines, whether reassignment to a vacant position is a required reasonable accommodation in the face of a disability-neutral policy in the Seventh Circuit will require application of the two-step, case-specific approach outlined in Barnett. An employer may be required to give preference to disabled employees over more qualified non-disabled employees in filling vacant positions. Of course, the disabled employee must be qualified for the vacant position in the first instance. Finally, while the presence of a seniority system may ordinarily render a transfer unreasonable, there may be case-specific situations in which an employee could demonstrate that reassignment is, in fact, a reasonable accommodation under the ADA despite the presence of a seniority system.

Brian L. McDermott is a shareholder in the Indianapolis office of Ogletree Deakins. Steven F. Pockrass is also a shareholder in the Indianapolis office of Ogletree Deakins, and he co-chairs the firm’s Wage and Hour Practice Group. Ebony A. Reid is an associate in the Indianapolis office of Ogletree Deakins.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.