The US Court of Appeals for the Seventh Circuit recently considered, in EEOC v. United Airlines, Inc., whether to overrule its precedent in light of the US Supreme Court's decision in U.S. Airways, Inc. v. Barnett. A key litigated issue in the case was whether the ADA requires employers to automatically reassign a disabled employee to a vacant position for which he is qualified as a reasonable accommodation, or whether they must instead give preferential treatment to the disabled employee for the position.

United Airlines's Reasonable Accommodation Guidelines permit an employee with a disability to transfer to another vacant position for which the employee is qualified, but specify that the transfer process is competitive, meaning employees needing an accommodation are given preferential treatment but cannot be guaranteed the position. The EEOC sued, claiming United's policy violated the ADA by not automatically reassigning disabled employees to vacant positions.

In 2000, in EEOC v. Humiston-Keeling, Inc., the Seventh Circuit considered a similar case, where the EEOC claimed that under the ADA employers were required to accommodate an employee with a disability by advancing the disabled person over a more qualified nondisabled person, unless the employer could show undue hardship. The Seventh Circuit disagreed and held a competitive transfer policy similar to the one at issue in this case does not violate the ADA.

Relying on Humiston-Keeling, the district court granted United Airlines's motion to dismiss. The EEOC appealed and asked the Seventh Circuit to overrule Humiston-Keeling in light of the US Supreme Court's decision in U.S. Airways, Inc. v. Barnett, where, in considering the reassignment of a disabled employee in the context of a seniority system, the US Supreme Court held an accommodation that would permit a disabled worker to violate the seniority system is not necessarily unreasonable. Instead, when determining whether such an accommodation is reasonable, courts must:

Although the Barnett Court found that violating a seniority system would not be reasonable in most cases, it did not create a per se exception for seniority systems, noting a plaintiff could show that special circumstances would warrant finding the accommodation reasonable in a particular case. The EEOC argued that language in Barnett contradicted much of the language in Humiston-Keeling and undermined the Seventh Circuit precedent.

On September 7, 2012, the Seventh Circuit issued an opinion in EEOC v. United Airlines, Inc., overruling Humiston-Keeling and holding the ADA requires an employer to appoint employees with disabilities to vacant positions for which they are qualified, absent undue hardship. According to the Seventh Circuit, the Barnett Court rejected the Humiston-Keeling interpretation that the ADA does not require mandatory preference of disabled employees, since preferences may be necessary to achieve the ADA's equal opportunity goal.

The Seventh Circuit reversed and remanded the case, directing the district court to follow the two-step analysis in Barnett by determining whether:

In reaching its decision, the Seventh Circuit also recharacterized its earlier decision in Mays v. Principi, where the court upheld a best-qualified selection policy by equating it with the seniority system the US Supreme Court upheld in Barnett. The Seventh Circuit noted that the Mays court had "understandably erred" in suggesting that it was always an undue hardship for an employer to deviate from a best-qualified selection policy.

The Seventh Circuit's decision in EEOC v. United Airlines, Inc. reverses its prior position that the ADA does not require mandatory reassignment of disabled employees as a reasonable accommodation. In light of this decision, employers in the Seventh Circuit now must appoint their employees with disabilities to vacant positions for which they are qualified as reasonable accommodations if the accommodations:

The Seventh Circuit: