Employer not required to reassign disabled employee, Seventh Circuit rules.

The Seventh Circuit has held that the reasonable accommodation provision of the Americans with Disabilities Act (ADA) does not require an employer to reassign an employee with disabilities to a vacant position if other candidates are better qualified. The circuits are now split on the issue.

Chief Judge Richard Posner wrote for a unanimous three-judge panel that "if the reassignment is feasible and does not require the employer to turn away a superior applicant, the reassignment is mandatory. That is not the same thing as requiring the employer to give [a worker] the job even if another worker would be twice as good at it."

The appeals court held that the employer was not required to assign the employee to any of its vacant positions to accommodate her condition. The panel noted that each applicant chosen for the positions the worker applied for was better qualified, that the employer had a policy of giving vacant positions to the best qualified applicants, and that the worker's condition did not play a role in the hiring decisions. (Equal Employment Opportunity Commission v. Humiston-Keeling, Inc., No. 99-3281, 2000 WL 1310519 (7th Cir. Sept. 15, 2000).)

The employee, Nancy Cook Houser, worked as a picker in an Illinois warehouse, where she carried pharmaceutical products from a shelf to a conveyer belt. The job required frequent: lifting of as much as five pounds. A workplace accident injured Houser's right arm, which limited her ability to lift.

Under the ADA, the injury was significant enough to restrict a major life activity, and the employer, Humiston-Keeling, Inc., was required to find a reasonable accommodation of Houser's disability. It first fashioned an apron that let Houser carry items from the shelf to the conveyer belt with just her left arm. According to court documents, she decided within a few hours that the apron was of little help. Humiston-Keeling then offered her a position as a greeter to visitors at a company construction site. She held that job until the construction was completed and the need for a greeter was eliminated.

Houser applied for several vacant clerical positions at Humiston-Keeling for which she had at least the minimum requirements. She was turned down for each position because other applicants were more qualified. The company eventually terminated her, which led to a lawsuit filed by the Equal Employment Opportunity Commission (EEOC) on Houser's behalf. The EEOC alleged that Humiston-Keeling failed to accommodate Houser's injury.

In the decision by the Seventh Circuit, Posner wrote, "The [Equal Employment Opportunity Commision] interprets the `reassignment' form of reasonable accommodation to require that the disabled person be advanced over a more qualified nondisabled person, provided only that the disabled person is at least minimally qualified to do the job.... The interpretation requires employers to give bonus points to people with disabilities.

"There is a difference ... between requiring employers to clear away obstacles to hiring the best applicant for a job, who might be a disabled person or a member of some other statutorily protected group, and requiring employers to hire inferior (albeit minimally qualified) applicants merely because they are members of such a group. That is affirmative action with a vengeance," Posner wrote.

John Hendrickson, regional attorney for the EEOC's Chicago district office, said, "The EEOC never argued that the ADA required anything that could be fairly described as `affirmative action with a vengeance.' Nor did the EEOC ever suggest that `bonus points' should be given to people with disabilities. That is unfortunate language, as is the reference to `inferior' applicants.

"Our position was and is that where, as in this case, the employee is qualified and it would not constitute an undue hardship for the employer, reassignment to a vacant position is a reasonable accommodation," Hendrickson said. "We are disappointed that the decision was otherwise, and we are particularly disappointed with the trend of hotly disputed ADA issues that are decided on motions for summary judgment."