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7th Circuit ADA decision won't close interpretation gap with EEOC p3

A three-judge panel of the 7th U.S. Circuit Court of Appeals handed down a decision recently that critics say upholds a precedent of the court while it runs counter to a U.S. Supreme Court decision. The case involves the Americans with Disabilities Act and the right of an employee who becomes disabled to a new position within the company. This is just one of many cases that discuss how far an employer must go to provide a reasonable accommodation under the ADA.

As we discussed in the last post, the rule from the circuit's earlier case is that an employee is not entitled to an automatic reassignment if the employer has a "consistent and honest policy to hire the best applicant for the particular job in question." The Equal Employment Opportunity Commission argued that the rule from the Supreme Court's decision should be controlling. Under that rule, the reassignment would be automatic if, first, the disabled candidate is at least minimally qualified to do the job and, second, if the transfer does not cause the employer undue hardship.

In the most recent decision, the panel stated that the EEOC's interpretation may be "more supportable." However, the judges said, the agency did not convince them that its rule cancels out the circuit's rule. Added to that is the Supreme Court's qualifying language: The employee must show "special circumstances" that will make the exception to a seniority policy "under certain circumstances."

The 7th Circuit says It is that last phrase that validates its decision. The panel noted in its decision that the Supreme Court case neither undermines nor overrules the case they have relied on here. The panel added that the circuit has been consistent in its belief that the two cases do not conflict.

Still, the panel suggested that the full court review the case. The EEOC's argument is persuasive, the decision said, just not persuasive enough for them. Maybe the full court could settle the matter -- for a time.

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

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