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

A 7th U.S. Circuit Court of Appeals panel handed down a decision recently that may continue the court's tougher stance on the Americans with Disabilities Act -- if the full court agrees with the decision. The panel stood by the court's precedent, ruling that the ADA does not require an employer to reassign a worker to a vacant position if a disability renders him incapable of continuing in his current position. The 7th Circuit includes Wisconsin, so this decision is binding here.

The decision reinforces the circuit's split from the Equal Employment Opportunity Commission's position. The EEOC has long held that a worker does have a right to be reassigned to a position for which he is qualified. The agency's position is based on a U.S. Supreme Court decision that two other federal circuits follow.

The company in the most recent case is an airline that adopted a reasonable accommodations policy about 10 years ago. The policy allowed for a transfer if a disability kept an employee from doing his job, but the new position was not guaranteed. Instead, the candidate would compete with other employees for the job. The candidate was free to apply for as many positions as he wanted, but the only advantage he would have would be priority consideration over any other equally qualified applicant.

The 7th Circuit had articulated the rule in a 2000 decision. There, the court said the employer did not have to reassign the disable employee it there was a better candidate. The court added a proviso: The employer must have a "consistent and honest policy to hire the best applicant for the particular job in question." The only question for a court, then, would be if the hiring decision had been arbitrary or had been in keeping with the "consistent and honest policy."

According to the EEOC, that rule was overturned in 2003 when the Supreme Court decided U.S. Airways v. Barnett -- which we will discuss in our next post.

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

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