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7th Circuit ADA decision won't close interpretation gap with EEOC p2

We are continuing our discussion of a recent decision handed down from a three-judge panel of the 7th U.S. Circuit Court of Appeals. The decision has reignited a debate between the Equal Employment Opportunity Commission and the 7th Circuit, which includes Wisconsin -- a debate that involves other circuits and the U.S. Supreme Court. The issue is whether the Americans with Disabilities Act requires an employer to reassign a worker who has become disabled; the reassignment would be considered a reasonable accommodation.

The employer in question had a bidding system for transfers. The employee was not guaranteed a job, but he was allowed to bid and to interview as often as he liked. If the decision came down to him and another, equally qualified candidate, he would be given priority.

The panel followed the circuit's precedent. The employee in this case was not entitled to a different assignment if the employer had a "consistent and honest policy to hire the best applicant for the particular job in question."

The EEOC disagrees, as it has for several years. The EEOC believes that the decision the 7th Circuit has followed is not at all consistent with a 2002 Supreme Court decision.

The circumstances in the 2003 case were similar in that the employer had an established policy for transfers. This time, the policy was based on seniority, and the court agreed that an accommodation that conflicted with the seniority rules was not reasonable. The employee did not have an automatic "in" because of his disability.

The court also said that if the employee could show "special circumstances" that would make the accommodation reasonable, in spite of the seniority rule, the employee would prevail. The decision added that these circumstances would make the exception to the seniority rule reasonable "under certain facts."

And, it seems, with those last three words a debate was born.

To be continued.

Source: Courthouse News, "Court Won't Adopt More Forgiving ADA Reading," Joe Celentino, March 12, 2012

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