In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1774
E QUAL E MPLOYMENT O PPORTUNITY C OMMISSION,
Plaintiff-Appellant,
v.
U NITED A IRLINES, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10-cv-01699—Harry D. Leinenweber, Judge.
A RGUED O CTOBER 20, 2011—D ECIDED M ARCH 7, 2012
Before C UDAHY, K ANNE, and SYKES, Circuit Judges.
C UDAHY, Circuit Judge. In this case, the Equal Employ-
ment Opportunity Commission (EEOC) asks this court
to change its interpretation of the Americans with Disa-
bilities Act, 42 U.S.C. §§ 12101 et seq. (ADA). The EEOC
contends that the ADA requires employers to reassign
employees, who will lose their current positions due to
disability, to a vacant position for which they are quali-
2 No. 11-1774
fied. However, this court has already held, in EEOC v.
Humiston-Keeling, 227 F.3d 1024, 1029 (7th Cir. 2000),
that the ADA has no such requirement. The EEOC argues
that the Supreme Court’s ruling in US Airways, Inc. v.
Barnett, 535 U.S. 391 (2002), undermines Humiston-Keeling.
Several courts in this circuit have relied on Humiston-
Keeling in post-Barnett opinions, though it appears that
these courts did not conduct a detailed analysis of
Humiston-Keeling’s continued vitality. In accordance
with this circuit’s case law, we affirm the district court’s
holding that the ADA does not mandate reassignment.
However, this circuit might reconsider the impact of
Barnett on Humiston-Keeling.
In 2003, United Airlines set out Reasonable Accom-
modation Guidelines that address accommodating em-
ployees who, because of disability, can no longer do
the essential functions of their current jobs even with
reasonable accommodation. While the guidelines note
that “transfer . . . [to] an equivalent or lower-level
vacant position” may be a reasonable accommodation,
the guidelines specify that the transfer process is com-
petitive. Accordingly, an employee will not be automati-
cally placed into a vacant position. Instead, employees
needing accommodation will be given preference,
meaning they can submit an unlimited number of
transfer applications, they are guaranteed an interview
and they will receive priority consideration over a
similarly qualified applicant.
The EEOC filed suit in San Francisco, alleging that
United’s policy violates the ADA. The district court
No. 11-1774 3
granted United’s motion to transfer the case to Illinois.
The district court granted United’s motion to dismiss
the suit under Rule 12(b)(6). The district court noted
that binding precedent, EEOC v. Humiston-Keeling, 227
F.3d 1024, 1028-29 (7th Cir. 2000) held that a competi-
tive transfer policy does not violate the ADA. The court
also rejected the EEOC’s contention that the Supreme
Court’s decision in US Airways, Inc. v. Barnett, 535 U.S.
391 (2002) undermined Humiston-Keeling.
This court reviews a dismissal under Rule 12(b)(6)
de novo. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th
Cir. 2008). A complaint must provide “sufficient factual
matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’ ” Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2002) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). This court construes the complaint
“in the light most favorable to the plaintiff, accepting
as true all well-pleaded facts alleged, and drawing all
possible inferences in [the EEOC’s] favor.” Tamayo,
526 F.3d at 1081 (citing Killingsworth v. HSBC Bank Nev.,
507 F.3d 614, 618 (7th Cir. 2007)). We have jurisdiction
to hear EEOC’s appeal under 28 U.S.C. § 1291.
The district court noted that Humiston-Keeling is
directly on point and has not been overruled by the
Seventh Circuit. The district court is correct on both
points. Humiston-Keeling involved a worker, Houser,
who could no longer perform her conveyor job due
to an injured arm. 227 F.3d at 1026. After taking a tempo-
rary greeter position, Houser applied for vacant clerical
positions within the company. However she did not get
4 No. 11-1774
any of these jobs. Id. The EEOC brought suit, arguing the
“reassignment form of reasonable accommodation . . .
require[s] 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, unless the employer can show undue hardship.” Id.
at 1027 (internal quotation marks omitted). This court
rejected that assertion, holding the “ADA does not
require an employer to reassign a disabled employee to
a job for which there is a better applicant, provided it’s
the employer’s consistent and honest policy to hire the
best applicant for the particular job in question.” Id.
at 1029.
As there is a controlling case directly on point, the
EEOC must convince this court to overrule its prior
decision. This is no easy task. The doctrine of stare decisis
holds that “the mere existence of certain decisions
becomes a reason for adhering to their holdings in sub-
sequent cases.” Tate v. Showboat Marina Casino P’ship, 431
F.3d 580, 583 (7th Cir. 2005). The EEOC’s interpretation
may in fact be a more supportable interpretation of
the ADA, and here we think that this is likely. However,
the EEOC must do more to force an abandonment of
stare decisis. In order to provide this court with a compel-
ling reason to deviate from precedent, the EEOC must
show that Humiston-Keeling is inconsistent with an on-
point Supreme Court decision or is otherwise incom-
patible with a change in statutory law.
The EEOC invites this court to overturn Humiston-
Keeling, arguing that Barnett undercuts the reasoning of
No. 11-1774 5
Humiston-Keeling. In Barnett, the Supreme Court con-
sidered reassignment under the ADA in the context of a
seniority system. 535 U.S. at 393-95. Robert Barnett injured
his back while a cargo-handler for U.S. Airways. He
invoked seniority and transferred to a mailroom position.
Id. at 394. Later, at least two employees senior to Barnett
intended to bid for the mailroom position. Id. Barnett
claimed that because he was an individual with a disa-
bility capable of performing the essential functions of
the mailroom job, the mailroom job was a reasonable
accommodation mandated by the ADA. Id. at 394-95.
The Supreme Court first noted that “[t]he simple fact
that an accommodation would provide a ‘preference’—
in the sense that it would permit the worker with a disabil-
ity to violate a rule that others must obey—cannot, in and
of itself, automatically show that the accommodation is
not ‘reasonable.’ ” Id. at 398 (emphasis in original). In-
stead, the Court outlined a case-specific approach:
Once the plaintiff has shown he seeks a reasonable
method of accommodation, “the defendant/employer
then must show special (typically case-specific) circum-
stances that demonstrate undue hardship in the par-
ticular circumstances.” Id. at 403. While Barnett’s request
for assignment to the mailroom was a “reasonable ac-
commodation” within the meaning of the statute, the
violation of a seniority system would present an undue
hardship to any employer. Id. at 403.
The EEOC points out that US Airways relied heavily
on Humiston-Keeling and, more importantly, that the
Court flatly contradicted much of the language of
6 No. 11-1774
Humiston-Keeling in Barnett. US Airways argued that it
was not required to grant a requested accommodation
that would violate a disability-neutral rule, picking up
the argument from Humiston-Keeling that the ADA is
“not a mandatory preference act” but only a “non-discrimi-
nation statute.” The Court rejected this anti-preference
interpretation of the ADA, noting that this argument “fails
to recognize what the Act specifies, namely, that prefer-
ences will sometimes prove necessary to achieve the
Act’s basic equal opportunity goal.” 535 U.S. at 397.
Merely following a “neutral rule” did not allow US Air-
ways to claim an “automatic exemption” from the ac-
commodation requirement of the Act. Id. Instead, US
Airways prevailed because its situation satisfied a
much narrower exception based on the hardship that
would be imposed on an employer utilizing a seniority
system.
While EEOC’s argument may be persuasive, the
analysis of Barnett’s impact on Humiston-Keeling is
further complicated by the fact that we are not the first
panel to consider this issue. This court has previously
considered Barnett’s relationship to Humiston-Keeling,
albeit in an abbreviated fashion without the benefit of
briefing. In Mays v. Principi, 301 F.3d 866 (7th Cir. 2002),
this court relied on Humiston-Keeling in finding that
an employer did not violate the duty of reasonable ac-
commodation in the Rehabilitation Act of 1973, 29 U.S.C.
§§ 701 et seq., by giving an administrative nursing posi-
tion to a better qualified applicant, rather than to a dis-
No. 11-1774 7
abled employee needing reassignment.1 Mays, 301 F.3d
at 871-72. The Mays Court noted that the recently handed
down Barnett decision actually bolstered Humiston-
Keeling. In so doing, the Mays Court equated seniority
systems with any normal method of filling vacancies.
“[Barnett] holds that an employer is not required to give
a disabled employee superseniority to enable him to
retain his job when a more senior employee invokes an
entitlement to it conferred by the employer’s seniority
system. If for ‘more senior’ we read ‘better qualified,’ for
‘seniority system’ we read ‘the employer’s normal
method of filling vacancies,’ and for ‘superseniority’ we
read ‘a break,’ U.S. Airways becomes our case.” Id. at
872 (internal citation omitted).
The EEOC argues that the Mays Court’s assertion that
a best-qualified selection policy is essentially the same
as a seniority system is simply wrong. In equating the
two, the Mays Court so enlarges the narrow exception
set out in Barnett as to swallow the rule. To bolster this
critique, the EEOC points out the relative rarity of
seniority systems and the distinct challenges of
mandating reassignment in a system where employees
are already entitled to particular positions based on
years of employment.
But the Mays Court is not the only court to treat
Humiston-Keeling as good law. On two other occasions
after the Supreme Court’s ruling in Barnett, this court has
1
Instead, the employer placed the disabled employee in a
clerical position.
8 No. 11-1774
relied on Humiston-Keeling: Craig v. Potter, 90 F. App’x
160 (7th Cir. Feb. 20, 2004), and King v. City of Madison,
550 F.3d 598 (7th Cir. 2008).2 In short, this court has
made no move to abandon Humiston-Keeling after
Barnett, bolstering the district court’s conclusion that
Barnett does not overrule or undermine Humiston-
Keeling. While these decisions have not provided detailed
analysis, their mere existence and consistent interpreta-
tions compel this court to find that Humiston-Keeling
remains good law.
The EEOC asks us to adopt the position of our sister
Circuits, the Tenth in Smith v. Midland Brake, Inc., 180 F.3d
1154 (10th Cir. 1999) (en banc) and the D.C. in Aka v.
Washington Hosp. Ctr., 156 F.3d 1284 (D.C. Cir. 1998)
(en banc), holding that the ADA requires reassignment
to vacant positions. The EEOC argues that both deci-
sions conduct a more thorough analysis of the statutory
language and legislative history of the ADA than this
court did in Humiston-Keeling. But this argument cannot
do much work, for the EEOC is merely returning to its
position that this court in Humiston-Keeling misinter-
preted the ADA. Instead, the EEOC must show that
this court’s established interpretation of the ADA in
Humiston-Keeling is no longer viable after Barnett.
For its part, United argues that this court should not
abandon Humiston-Keeling, in part because the Eighth
Circuit explicitly adopted the reasoning of Humiston-
Keeling in Huber v. Wal-Mart Stores, 486 F.3d 480, 483-84 (8th
2
However, neither of these cases mentions Barnett.
No. 11-1774 9
Cir. 2007). The Eighth Circuit’s wholesale adoption of
Humiston-Keeling has little import. The opinion adopts
Humiston-Keeling without analysis, much less an
analysis of Humiston-Keeling in the context of Barnett. A
circuit split will remain even if this court adopts the
position of the Tenth and D.C. Circuits. However, there
is no harm in lessening this split if, in fact, Barnett under-
mines Humiston-Keeling. In that respect, the present panel
of judges strongly recommends en banc consideration of
the present case since the logic of EEOC’s position on
the merits, although insufficient to justify departure
by this panel from the principles of stare decisis, is per-
suasive with or without consideration of Barnett.
This court has previously determined that Barnett
does not conflict with Humiston-Keeling. Courts within
this circuit have continued to cite Humiston-Keeling
favorably. As Humiston-Keeling is still good law and
directly on point, the district court rightly concluded
that the ADA does not require employers to reassign
employees, who will lose their current positions due
to disability, to a vacant position for which they are
qualified. For this reason, the judgment of the district
court is A FFIRMED.
3-7-12