Seventh Circuit Reverses Itself on Reassignment as Reasonable Accommodation

As I noted in this post a few months ago, "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.)

As I explained in that post, back in March a panel of the Seventh Circuit issued a decision in a case entitled EEOC v. United Air Lines, Inc., in which the EEOC had argued that the Seventh Circuit's precedent on reassignment had been undermined by the Supreme Court's ruling in US Airways, Inc. v. Barnett.  The Seventh Circuit in March explained that the court was bound by its longstanding precedent on the issue but invited the EEOC to file a petition for rehearing en banc to prompt the court to reconsider its precedent in light of Barnett.  The EEOC did file for rehearing en banc.  But instead of rehearing the case en banc the panel today simply issued a new decision overruling the court's prior precedent on reassignment.  The panel noted that it had circulated its new decision to all of the active judges on the court, and none of them requested en banc consideration.

Today's decision holds that the Seventh Circuit's prior precedent on reassignment "did not survive Barnett":

We reverse and hold 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. We remand with instructions that the district court determine if mandatory reassignment would be reasonable in the run of cases and if there are fact-specific considerations particular to United’s employment system that would render mandatory reassignment unreasonable in this case. 

With this decision, the Seventh Circuit switches sides in the circuit split, joining the Tenth and D.C. Circuits and leaving the Eighth Circuit alone as the defender of the "most qualified" rule.  Although there is still a conflict in the circuits, this decision does suggest that the conflict might resolve itself in favor of what is now the prevailing position in the courts of appeals.  Although United might well file for certiorari in the Supreme Court, the diminishing nature of the conflict would counsel against the Court's granting review.