Appeals Court Finds Employer Can Revoke Reasonable Accommodation Under ADA Post-Merger

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Attorney Harrison Oldham


This week, the Seventh Circuit Court of Appeals (which covers Illinois, Indiana, and Wisconsin), ruled that Dallas based American Airlines could rescind a reasonable accommodation that included a “Work from Home Arrangement” for an employee with multiple sclerosis based on a the Company’s determination that the essential job functions of her position changed following the company’s merger with US Airways. The Seventh Circuit held that she was not a qualified individual because she could not perform the essential functions of the post-merger job.

According to court documents, Kimberly Bilinsky worked at American for more than 20 years, starting in 1991. In the late 1990’s she was diagnosed with multiple sclerosis. Because her condition is aggravated by heat, American Airlines permitted her to work from her Chicago home, although the rest of her department was based in Dallas, Texas. Court documents clarify that Bilinsky previously traveled to Dallas once a week to meet with her colleagues and perform tasks that required face-to-face interaction.

In 2013, American merged with US Airways. As the operations of the two airlines merged, the function of Bilinsky’s department began to change. Previously, her department had almost purely focused on internal communications. However, post-merger, the department became responsible for event coordination and crisis communications; roles that required more face to face interaction in the Dallas, Texas based offices. Employees within the department testified that after the merger, stress was increased, responsibilities changed, and there was an increased demand for services that could only be performed locally. As a result, following the merger, the leadership of Bilinsky’s department made a policy change to no longer allow any employees to work remotely (regardless of disability).

Following this announcement, American Airlines attempted to find Bilinsky a Chicago-based job but was unable to find one that met Bilinsky’s qualifications and interest. Bilinsky was ultimately terminated when she was unable to find a new job within American Airlines. Bilinsky then sued, asserting a claim under the American with Disabilities Act (“ADA”) for failure-to-accommodate and retaliation claims against the employer.

Upon review, the district court’s judgment rested on its conclusion that Bilinsky was not a “qualified individual” under the ADA.   Stating that “a worker has no claim under the ADA if she, even with a reasonable accommodation, cannot do the job for which she was hired.” The district court ultimately granted summary judgment in favor of American Airlines.

On appeal, the appellate court noted that although the EEOC regulations pointed the court to several factors to consider when defining a job’s essential functions, the relevant statute lists only two: “consideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description … for the job, this description shall be considered evidence of the essential functions of the job.” Otherwise, a court will not “second‐ guess the employer’s judgment in describing the essential requirements for the job.”

Going deeper into the specific facts of this case, the appellate court recognized that both parties agreed that Bilinsky’s multiple sclerosis was a qualifying disability under the ADA, and American Airlines conceded that Bilinsky was qualified to do the job with her accommodation prior to the 2013 merger. However, the employer argued that the merger fundamentally changed the position’s nature and that consistent, physical presence on site in Texas became an essential function of the position at some point after 2013. Therefore, American Airlines argued, because Bilinsky could not perform the required functions from her home in Chicago, and because she was unable to relocate to establish a physical presence in Texas, American Airlines contended that she was not qualified for the transformed position.

Some of the possibly most damaging testimony in the case came from Bilinsky’s immediate supervisor, who testified that “[Bilinsky] just wasn’t able to do things that you needed to do to support an event. You can’t drive to the hotel that’s in Dallas if you’re in Chicago. You can’t go check out [AV] equipment in Chicago. You can’t meet with subject matter experts to directly, you know, get photographs.”

Thus, despite the fact that American Airlines had accommodated Bilinsky’s disability for several years by permitting her to work from her home in Illinois, the merger fundamentally changed the position’s nature and made physical presence, on site, become an essential function of the position at some point after 2013. As such, after a major merger, American Airlines determined that its remote arrangements were insufficient to meet business demands, and it uniformly rescinded those arrangements with all its employees, disabled and non‐disabled alike. Because Bilinksky could not relocate to Texas, and because she could not perform the essential functions of her position from her home in Chicago, the Seventh Circuit court of appeals affirmed the district court’s  grant of summary judgment for American Airlines, finding  that Bilinsky was not a “qualified individual” for the position in light of the changes in her responsibilities, as she was therefore ineligible for the ADA’s protection.

You can learn more about him by visiting his website, at: http://lonestarbusinesslaw.com/.


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About Harrison Oldham

Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.

Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas.

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