I received a press release this afternoon from the Equal Employment Opportunity Commission trumpeting a settlement they secured from United Airlines.
Apparently the airline should have given preference to disabled employees wanting to transfer jobs, rather than to the most qualified candidates for those open positions.
By requiring workers with disabilities to compete for vacant positions for which they were qualified and which they needed in order to continue working, the company’s practice frequently prevented employees with disabilities from continuing employment with United, the EEOC said.
If a disability prevents an employee from returning to work in his or her current position, an employer must consider reassignment. As the Seventh Circuit’s decision highlights, requiring the employee to compete for positions falls short of the ADA’s requirements. Employers should take note: When all other accommodations fail, consider whether your employee can fill a vacant position for which he or she is qualified.
I have several observations on this, none of which are on the merits of the application of the Americans With Disabilities Act. While I have some familiarity with it as an employer, I am not a specialist on the requirements of the ADA.
- The suit was filed in 2009. It was settled in 2015.
- This isn’t United’s first EEOC settlement
- It’s being billed as a settlement of “over $1 million” because it is… $1,000,040. No doubt the EEOC pushed for that extra $40 so they could trumpet the ‘over’ part of the claim.
- The EEOC’s case was dismissed in 2011. However the EEOC got it re-instated by the full 7th Circuit Court of Appeals, arguing that an EEOC case that went to the Supreme Court in 2002 trumped the precedent on which United obtained the dismissal. Given that United had won a dismissal from the 7th Circuit though, it suggests that it at least wasn’t obvious they had been violating the law. In that case, should they be liable, when they couldn’t clearly foresee their conduct was illegal? Shouldn’t the precedent be announced clearly – on a prospective basis – so that employers know what rules they’ll be held to, rather than being pursued for financial penalties based on past conduct?