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Court acknowledged EEOC’s persuasive reasoning in ADA claim, but stare decisis mandated dismissal

March 8th, 2012  |  Sheryl Allenson

Although the Seventh Circuit determined that stare decisis mandated that it affirm a  district court’s decision granting United Airlines motion to dismiss the EEOC’s ADA suit challenging a competitive transfer process for employees seeking accommodation of disabilities, the appeals court found the EEOC’s reasoning in favor of its position persuasive (EEOC v United Airlines, Inc, March 7, 2012, Cudahy, R). Consequently, the panel recommended that the circuit take up the EEOC’s position on the merits en banc, and in so doing, reconsider the impact of a Supreme Court decision on Seventh Circuit precedent.

EEOC’s suit. Initially, the EEOC filed suit in California, but the case was transferred to Illinois. The suit challenged a United Airlines policy that addressed accommodation for employees who, because of disabilities, could no longer do the essential functions of their jobs even with reasonable accommodations. That policy provided that while transfer to another equivalent or lower-level vacant position could be a reasonable accommodation, the transfer process would be competitive. Accordingly, while employees would not automatically be given transfers, they would be given a preference. Preference was defined as a guaranteed interview, unlimited transfer applications, and priority consideration over other similarly qualified candidates.

A Seventh Circuit case directly contradicted the EEOC’s contention that the ADA requires employers to reassign employees, who lose their position due to disability, to a vacant position for which they are qualified. Accordingly, the district court granted United Airlines’ motion to dismiss, citing EEOC v Humiston-Keeling. In that case, the Seventh Circuit held that the ADA did not have such a requirement.  Moreover, the district court noted that Humiston-Keeling, which other circuits have relied upon, was directly on point and had not been overruled. Accordingly, the EEOC had to convince the court to overrule its prior decision. “The EEOC’s interpretation may in fact be a more supportable interpretation of the ADA, and here we think that this is likely. However, the EEOC must do more to force an abandonment of stare decisis. In order to provide this court with a compelling reason to deviate from precedent, the EEOC must show that Humiston-Keeling is inconsistent with an on-point Supreme Court decision or is otherwise incompatible with a change in statutory law,” the appeals court wrote. Here, the EEOC fell short.

The EEOC argued that the U.S. Supreme Court decision of US Airways, Inc v Barnett undercut the ruling in Humiston-Keeling. In that Supreme Court decision, the Court considered reassignment under the ADA in the context of a seniority system. The Supreme Court reasoned that just because an accommodation would provide a preference “in the sense that it would permit the worker with a disability to violate a rule that others must obey — cannot, in and of itself, automatically show that the accommodation is not reasonable.” Instead, the Supreme Court emphasized that there must be a case specific approach, where after the employee has shown that he seeks a reasonable method of accommodation, the employer must demonstrate special circumstances demonstrating undue hardship. In Barnett, the Court found that there was indeed undue hardship upon the employer.

Accordingly, the Barnett Court rejected an anti-preference interpretation of the ADA, noting that sometimes preferences are necessary to achieve the ADA’s goals. However, in that case, the airline could not claim an automatic exemption by following a “neutral rule,” but instead prevailed because its situation fell into a narrower exception based on undue hardship. Notwithstanding, the EEOC argued that the Humiston-Keeling should be overturned based upon Barnett.

Although the Seventh Circuit acknowledged that the EEOC’s argument was persuasive, it was undermined by the fact that the court had already considered Humiston-Keeling in relation to Barnett and found it remained intact. Several other panels relied on Humiston-Keeling, after Barnett, but did not overrule or undermine the ruling. While the EEOC urged the appeals court to adopt the position of several sister circuits, which held that the ADA requires reassignment to vacant positions, the Seventh Circuit reiterated that Humiston-Keeling was good law, in the absence of a showing that it was no longer viable after Barnett. To that end, the panel “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.” Accordingly, while the order granting the employer’s motion to dismiss was affirmed, the EEOC’s rationale was acknowledged, leaving the door open to further jurisprudence on this issue.