Ordinarily Reasonable: Using the Supreme Court's Barnett Analysis to Clarify Preferential Treatment under the Americans with Disabilities Act

I. INTRODUCTIONConsider the following hypothetical situation: two employees work for the same company, one located in Chicago, Illinois, and the other located in St. Louis, Missouri; both employees perform the same job for the same company except in two different locations.1 The two employees are identical in every way: performance, education, and experience.2 Both of the employees are injured while on the job and are now considered to have a disability under the Americans with Disabilities Act ("ADA").3 Although their employer tries diligently to accommodate the employees so that they retain their current positions with the company, no accommodations are sufficient to allow the employees to stay in their current positions.4 Because the employees with disabilities can no longer perform the essential functions of their current positions, each of the employees expresses an interest in being reassigned to vacant positions in the company.5 The employee in Chicago is automatically placed in an administrative position with comparable pay and similar benefits based on the Equal Employment Opportunity Commission's ("EEOC") ADA Enforcement Guidelines.6 However, the employee in St. Louis is forced to compete with other applicants who apply for the vacant position.7 Although the employee in St. Louis is qualified for the job, because another applicant is deemed more qualified, the employee is not selected for the vacant position; the applicant chosen to fill the vacant position does not have a disability, and instead of risking the possibility of unemployment, the St. Louis employee takes a job with the company that pays only half of her former wages.8Due to a circuit split regarding the duty of employers to reassign individuals with disabilities as a "reasonable accommodation," this unequal application of the statutory protections, that are afforded to individuals with disabilities by the ADA, persists today.9 The Supreme Court's failure to settle the circuit split within the U.S. Circuit Courts of Appeals means that an employer's reassignment duty, and subsequently accommodation options for its employees with a disability vary based on the controlling circuit's interpretation of the ADA.10 The only difference between the two employees from the hypothetical was the jurisdiction that governed their respective rights under the ADA: Seventh Circuit precedent mandated the Chicago employee's non-competitive transfer, while the Eighth Circuit permitted the employer to fulfill its ADA obligations by merely allowing the St. Louis employee to compete with other applicants for the vacant position.11 Although both of the employees with disabilities worked for the same company and had equal rights under the ADA, the outcome was different in each situation because the circuits differed in their interpretation of the statute's reassignment requirement.12 In US Airways, Inc. v. Barnett, the Supreme Court offered a limited explanation of an employer's reassignment duty under the ADA when the duty conflicts with a seniority hiring system; however, the statute's effect on best-qualified hiring policies remains unclear.13 The Supreme Court, in EEOC v. United Airlines, Inc., had the chance to settle the circuits' differing views regarding the ADA's effect on best-qualified hiring policies, but declined to do so.14 It is unclear why the Supreme Court denied United Airlines' application for a writ of certiorari, and the Court did not offer an explanation.15 The Court's denial is particularly puzzling given its previous grant of certiorari in Huber v. Wal-Mart, which also presented the question of whether preferential treatment is required under the ADA when there is a non-discriminatory hiring policy in place.16This Comment argues that the Supreme Court should have granted certiorari in EEOC v. United Airlines, Inc. and ruled that employers are required to reassign minimally qualified employees with disabilities to vacant positions as a "reasonable accommodation" despite the existence of an employer's policy dictating that the best-qualified candidate be hired. …