In December, the U.S. Supreme Court accepted review of an Eighth Circuit Court of Appeals case, Huber v. Wal-Mart Stores, Inc., involving employers’ obligations to reassign disabled employees to vacant available positions if they cannot work in their current job due to the disability.  Under the Americans with Disabilities Act (“ADA”), employers clearly must consider reassignment as a last chance form of reasonable accommodation.

 

The Eighth Circuit case deals with the more difficult question of the disabled employee’s right to the vacant job over other, better qualified non-disabled co-workers.  In this case, Wal-Mart refused to place the disabled employee in an equivalent vacant position over several superior applicants for the position.  Instead, it offered her reassignment to a lower paying job.  The EEOC takes the position that the disabled employee is automatically entitled to the vacant available position for which he is qualified, without having to compete against other applicants for the position.  Wal-Mart counters that the ADA requires nothing more than allowing the disabled employee to apply for the job, with the employer having the right to choose the best qualified applicant.

 

The Eighth Circuit agreed with Wal-Mart.  Oral arguments on this case will be heard this Spring, with a decision likely by the end of the Court’s current term in October.