Providing Plaintiffs with Tools: The Significance of EEOC v. United Airlines, Inc.

INTRODUCTION Under the Americans with Disabilities Act (ADA), employers are required to provide individuals with disabilities "reasonable accommodations," (1) including reassignment of a current employee to a vacant job position (2) should the employee find himself or herself unable to perform the essential functions of her current job due to a disability, but is able to fulfill the functions of the vacant position with or without reasonable accommodation. (3) Traditionally, circuit courts have been split on whether "reassignment" means automatic reassignment or simply the opportunity to compete for the position against other applicants. (4) The only Supreme Court case on the issue, US Airways, Inc. v. Barnett, (5) holds that ADA reassignment is not ordinarily reasonable where the employer has an established seniority system. (6) Using the reasoning of that Supreme Court case, the Seventh Circuit seems to have clarified its position regarding whether reassignment is mandatory despite an employer's policy of selecting the best qualified candidate for a position. (7) In March 2012, a three-judge Seventh Circuit panel published an opinion in the case of EEOC v. United Airlines, Inc. (United Airlines 7). (8) In September 2012, the same panel vacated its own March opinion and wrote a new opinion (United Airlines II), overruling and abrogating Seventh Circuit precedents (9) holding that a most-qualified selection policy may "trump" ADA reassignment. (10) The Seventh Circuit likely did make mandatory reassignment ordinarily reasonable under the Barnett test. (11) While commentators have discussed the Seventh Circuit's contribution to the circuit split on this question, (12) the real contributions of United Airlines II were to temper what could have been a relatively employer-friendly decision in Barnett and to provide employees with tools to argue that reassignment is ordinarily reasonable despite many types of employment policies. In fact, the language of United Airlines II may be even more useful to plaintiffs than pre-Barnett decisions from other circuits that had rejected the notion that a best-qualified selection policy could trump a reasonable request for reassignment under the ADA. This Note will analyze the language of the United Airlines II decision, in light of Barnett, Seventh Circuit precedents regarding the reasonable accommodation of reassignment, and cases from other circuits that the Seventh Circuit cited in relevant part in its United Airlines II decision. Part I will provide an introduction to the relevant provisions of the ADA. Part II will summarize relevant portions of a series of cases predating United Airlines II that deal with the concept of reassignment as a reasonable accommodation under the ADA. These cases are discussed in considerable detail in order to highlight in Part III the significance of United Airlines II--particularly for employee-plaintiffs trying to argue that ADA reassignment should ordinarily trump various employment policies. I. The Americans with Disabilities Act Recognizing that individuals with disabilities have experienced discrimination in the United States but traditionally had "no legal recourse to redress such discrimination," (13) Congress enacted the ADA in (1990). (14) The purpose of the Act was to ensure federal recourse for such discrimination by "provid[ing] clear, strong, consistent, enforceable [national] standards addressing discrimination against individuals with disabilities." (15) Based on similar findings and purposes, the ADA was amended in 2008 in order to expand the definition of "disability." (16) By doing so, Congress emphasized that "the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations" rather than "extensive analysis" of "whether an individual's impairment is a disability under the ADA." (17) One such obligation is that employers not discriminate against applicants or employees with disabilities. …