Jobs not guaranteed for disabled applicants

ST. LOUIS--The Americans with Disabilities Act does not require an employer to offer a vacant job to a disabled worker as an accommodation if a better qualified applicant is available, says a federal appellate court, ruling on an issue that attorneys say may ultimately end up in the U.S. Supreme Court.

The May 30 decision by the 8th U.S. Court of Appeals in St. Louis in Pam Huber vs. Wal-Mart Stores Inc. says Ms. Huber sustained a permanent injury to her right arm and hand while working for Bentonville, Ark.-based Wal-Mart as a dry grocery order filler. She sought reassignment to a router position as a reasonable accommodation under the ADA, says the opinion.

But Wal-Mart required her to apply and compete for the position with other applicants, and ultimately filled the job with a nondisabled applicant, explaining Ms. Huber was not the most qualified candidate. Instead, it placed her in a maintenance associate position.

Ms. Huber then sued Wal-Mart in federal court claiming discrimination under the ADA and the Arkansas Civil Rights Act of 1993. The court ruled in Ms. Huber's favor, and Wal-Mart appealed.

"The parties' only dispute is whether the ADA requires an employer, as a reasonable accommodation, to give a current disabled employee preference in filling a vacant position when the employee is able to perform the job duties, but is not the most qualified candidate," says the decision.

The decision notes there have been earlier conflicting appellate court rulings on this issue. In 1999, the 10th U.S. Circuit Court of Appeals in Denver held that under the ADA, an employer must automatically award a position to a qualified disabled employee, "regardless of whether other better qualified applicants are available, and despite an employer's policy to hire the best applicant."

But in a 2000 decision, the 7th U.S. Circuit Court of Appeals in Chicago held the ADA does not require an employer to reassign a qualified disabled employee to a job if it has a policy of hiring the most qualified applicant, and a more qualified worker is available.

The 8th Circuit agreed with the 7th Circuit. The ADA "is not an affirmative action statute" and does not require an employer to reassign a disabled worker "when such a reassignment would violate a legitimate nondiscriminatory policy of the employer to hire the most qualified candidate," says the unanimous opinion by a three-judge panel, which overturns a lower court ruling.

Paul Mollica, a plaintiff attorney with Meites, Mulder, Mollica & Glink in Chicago, said it "strikes me as a bit facetious" that both the 8th and the 7th Circuits say the ADA is not an affirmative action statute because nobody is arguing the law requires employers to keep a certain quota of disabled employers, or to put in place unqualified workers.

"But what it does say is, you do have to make an additional extra effort" to make sure the disabled can go work, even if that incurs some additional expense or means making some hiring or transfer decisions the employer might not otherwise make, said Mr. Mollica.

But Jill A. Morris, an employer attorney with Ogletree, Deakins, Nash, Smoak & Stewart P.C. in Kansas City, Mo., said under the ADA, "Employers do not have to reassign a qualified individual with a disability to the detriment or expense of the more qualified candidates." The law says only that reasonable accommodations may include reassignment, but does not make it mandatory, said Ms. Morris.

James C. Hetlage, an employer attorney with Lashly & Baer P.C. in St. Louis, agreed. The ADA "really isn't intended to work against employers' existing hiring or promotion practices," he said.

Observers believe the issue may ultimately be decided by the U.S. Supreme Court because of the disagreement among the circuits.

The split decisions mean Wal-Mart must now operate under separate sets of rules depending on the circuit, said Mr. Mollica. "That can't be good. You need one rule," he said.

Pam Huber, appellee, vs. Wal-Mart Stores Inc., appellant, 8th U.S. Circuit Court of Appeals, No. 06-2238, May 30, 2007.