posted on Monday, December 10, 2007 11:49 AM
by
Lou Michels
Supremes to Rule on Major ADA Issue
This term the Supreme Court continues to take on some vexing employment law issues . On December 7, 2007, the Court decided to review an Americans with Disabilities Act case that addressess a fundamental ADA issue--whether an employer has to reassign an employee with a disability to a vacant job instead of other, more qualified, applicants.
The case is Huber v. Wal-Mart Stores Inc., No. 07-480. Huber worked as a grocery order filler for Wal-Mart and sustained a work-related, permanent injury to her right hand and arm. The injury left her unable to perform the essential functions of her normal job, and she requested a reassignment to another vacant position, that of "router", for which she was qualified and that had equivalent pay. After considering Huber's application along with several others, Wal-Mart applied its policy of hiring the most qualified applicant and elected not to transfer Huber into the router job. Instead, she was offered another vacant job that paid approximately half what she'd earned in her previous position.
Huber did not dispute the fact that the person hired for the router position was more qualified than she was and that Wal-Mart consistently applied its policy of hiring the best qualified person for the job. Instead, she argued that "reassignment to a vacant position" is cited by the ADA as an example of a reasonable accommodation that an employer has to provide to a disabled employee. The Eighth Circuit ruled for the employer, noting that the ADA was not an affirmative action statute and did not require an employer to treat a disabled employee better than it would treat a nondisabled employee by making an exception to its normal employment policies.
The Eighth Circuit's decision is at odds with the EEOC's interpretation of the ADA. But federal courts routinely reject the EEOC's guidance on employment law. And there is plenty of other federal case law out there that says that employers are not required to treat disabled employees differently than they would nondisabled employees in the same situation.
I would hope the Court affirms the Eighth Circuit's decision and puts this issue to bed once and for all. But there are plenty of pressures, legal and political, pushing the court the other way. The ADA has been a spectacularly unsuccessful statute in terms of its professed goal of getting more disabled Americans back to work. A legal requirement that an employer must reassign a disabled employee to a specific vacant position- in essence treating the disabled employee as "super qualified"-is one remedy that has been pushed by the plaintiffs' bar for some time.
Stay tuned.