Under the Americans with Disabilities Act, if a qualified disabled employee is unable to perform the essential functions of his or her job, even with accommodations, the employer must determine if there are vacant available positions to which the disabled employee can be moved.  The Equal Employment Opportunity Commission takes the position that if the disabled employee is qualified for the vacant position, he or she must be placed there, without consideration of other potentially more qualified non-disabled applicants for the position.  In a new decision, the Eighth Circuit Court of Appeals flatly rejected the EEOC’s interpretation of this reassignment obligation.  In Huber v. Wal-Mart Stores, Inc., the employer refused to move the disabled plaintiff into a different vacant position, because it concluded that she was less qualified than a non-disabled applicant for the position.  She sued, alleging failure to accommodate.

 

The Eighth Circuit reversed an award of summary judgment for the plaintiff.  The court stated that all the ADA required Wal-Mart to do was consider the plaintiff along with other applicants for the job.  The Act does not require the employer to in effect discriminate against a better qualified non-disabled person.  To do otherwise would convert the ADA into an affirmative action statute by mandating preferences for disabled employees.  The Eighth Circuit joins the Seventh Circuit in rejecting the EEOC’s position.  The Tenth Circuit followed the EEOC’s interpretation, resulting in a split among the federal appellate courts.  The U.S. Supreme Court may be called upon to resolve these differences.