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Jury’s still out on whether vacant post is accommodation

WASHINGTON – Leaving unresolved a question that has split the circuits and perplexed employment attorneys, the U.S. Supreme Court declined to decide whether the Americans with Disabilities Act requires an employer to reassign a disabled employee to a vacant position that would have otherwise been filled by a competitive process.

The court’s single-line order May 28 denying certiorari in United Airlines Inc. v. EEOC is causing management-side attorneys to act proactively by urging clients to set up clear hiring and seniority policies, while still covering their bases by carefully analyzing each ADA-based transfer request to avoid an Equal Employment Opportunity Commission complaint.

“The safe thing for employers to do is to take a belt-and-suspenders approach,” said Jonathan R. Mook, founding partner of DiMuroGinsberg PC in Alexandria, Va., and author of two treatises on the ADA.

The justices’ decision to stay out of the case creates “a big issue for employers,” said Jennifer S. Mirus, a partner in the Madison, Wis., office of Boardman & Clark LLP.

“The 7th Circuit has made a pretty strong pronouncement requiring employers to shift someone to an open position rather than waiting for there to be a competitive process,” Mirus said. “But there are still many issues that have to be assessed and analyzed on a case-by-case basis. Even the 7th Circuit left open some room” for ADA transfer requests to be denied.

The circuit split that remains after the Supreme Court’s decision to stay out of the case leaves few things certain, but lawyers do have some indirect guidance from the high court’s 2002 ruling in US Airways Inc. v. Barnett, which said that the ADA does require that an employee be given an accommodation that is inconsistent with an employer’s established seniority rules.

“US Airways Inc. v. Barnett is still good law,” said Tina Syring-Petrocchi, a partner in Barnes & Thornburg LLP’s Minneapolis office and a member of the firm’s Labor and Employment Law Department.

Reversals, dismissals and a big circuit split 

The issue has stymied attorneys and courts for years, creating confusing and conflicting results — sometimes within the same circuit.

For example, the 7th Circuit’s United Airlines ruling was preceded by its ruling in 2000 in EEOC v. Humiston-Keeling, which said that the ADA does not require an employer to reassign a disabled worker to a vacant position if there is a better qualified applicant for the job.

The reasoning in that case was the basis of the 8th Circuit’s 2007 holding in Huber v. Wal-Mart Stores. In that case, the 8th Circuit, relying on Humiston-Keeling for guidance, held that an employer did not violate the ADA when it made a disabled worker apply for reassignment to a vacant position and then selected a non-disabled person who was more qualified for the job.

But the 7th Circuit reversed itself last year in United Airlines, holding that its Humiston-Keeling decision had been overturned by the Supreme Court’s ruling in Barnett. Adopting a new rule, the 7th Circuit held 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.”

In 2008, it appeared the Supreme Court would have the final word on the issue when it granted certiorari in Huber. But the case was dismissed by the justices after the parties settled. As usual, there was no reason given by the justices for denying certiorari in United Airlines yesterday.

While not every circuit has weighed in directly on the issue, decisions out of the 2nd, 4th, 5th, 6th and 11th circuits largely support the 8th Circuit’s approach in Huber, while the D.C. and 10th Circuits follow the 7th Circuit’s approach in United Airlines. That adds up to a nightmare situation for employers with workplaces in multiple jurisdictions.

Being proactive and conservative 

Several attorneys say they are telling their employer clients to take a conservative approach to their hiring and transfer decisions, regardless of jurisdiction.

Syring-Petrocchi said that even though the 8th Circuit’s more employer-friendly decision in Huber technically still stands, the fact that it was based in part on a now-overturned 7th Circuit ruling has her advising her clients to be cautious and meticulous with their ADA-related transfer requests.

“I say to them: We need to remember that the EEOC is being very aggressive in these cases,” Syring-Petrocchi said. “Litigation is expensive.”

Syring-Petrocchi said she advises her clients to be careful and thorough with each ADA-based transfer request, and assists them in conducting case-by-case reasonable accommodation analyses in order to come to a decision that is reasonable — and defendable.

“I challenge them,” Syring-Petrocchi said. “I have them give me their case as if we had to defend it before the EEOC.”

Mook said employers in all jurisdictions can still defend a decision to deny a transfer request if they can show it creates an undue hardship — an exception expressly reserved by the United Airlines decision.

“Employers can still make an undue hardship claim,” Mook said. “But you have got to say something more than simply, ‘It’s an undue hardship.’ You have got to be able to explain why.”

In situations where there is no settled seniority policy or collective bargaining agreement, that argument will be a much tougher sell, Mook said.

“It will be much harder to make an undue hardship claim with a policy [that requires] hiring only the best person for the job,” Mook said. “Seniority is clear: How long have you been with the company? It’s easy. But who qualifies as the best person for the job is more subjective; it’s mushier.”

Mirus said she and other employment attorneys must also keep a close eye on state laws, which may take a different approach than the circuits.

“Wisconsin disability laws are very employee-friendly, and there are no bright-line rules,” Mirus said.

That means employers cannot simply rely on policies alone.

“This is not an area of law that is easily addressed with a written policy,” Mirus said.

Lawyers USA is a sister publication of The Daily Record.