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Under the Americans With Disabilities Act, it is well settled that “reassignment” to an open and available position must be considered as a possible “reasonable accommodation.” The 8th U.S. Circuit Court of Appeals recently significantly narrowed the scope of an employer’s “reassignment” obligation, by holding that the Americans With Disabilities Act (ADA) requires only that an employer “consider” an accommodated-employee for a position, but may bypass such an employee in favor of a more qualified candidate, while still fulfilling its obligations under the act. In Huber v. Wal-Mart, Pam Huber worked as an order-filler when she suffered a permanent injury to her right arm and shoulder. The parties stipulated that Huber was disabled and that she could no longer perform the essential functions of her position. Huber sought an accommodation of reassignment to an available “router” position. Wal-Mart declined to simply place her in the position, however, and required that she compete for the position with other candidates. Huber was not the most qualified router candidate (as stipulated to by the parties) and she was denied the position. Instead, she was placed in a janitorial position, which paid her $6.80 less per hour than she had previously earned as an order-filler. Huber brought suit against Wal-Mart, claiming that she should have been reassigned to the router position. Wal-Mart moved for summary judgment on the grounds that it had a legitimate, nondiscriminatory policy of hiring the most qualified applicant for all job vacancies. Since Huber was not the most qualified candidate, the company had no obligation to award her the position. Summary judgment was granted to Wal-Mart and the appeal followed. Split Among Circuits The 8th Circuit began its discussion by noting that there is a split among the circuits as to whether the ADA requires an employer to automatically reassign an accommodated-employee, or whether the employer is permitted to deny the position in favor of a more qualified candidate. Prior to Huber, the 10th Circuit had addressed this issue most directly, finding, in Smith v. Midland Brake, that “the reassignment obligation must mean something more than merely allowing a disabled employee to compete equally with the rest of the world for a vacant position.” The 7th Circuit, on the other hand, held that reassignment is mandatory “if [it] is feasible and does not require the employer to turn away a superior applicant.” The Huber court found the 7th Circuit’s reasoning persuasive. The court found that the ADA is “not a mandatory preference act” and “does not require Wal-Mart to turn away a superior applicant for the router position in order to give the position to Huber.” The court cited the 7th Circuit’s language that to conclude otherwise “is affirmative action with a vengeance. That is giving a job to someone solely on the basis of his status as a member of a statutorily protected group.” In the end, the court found that Wal-Mart had offered an accommodation, just not the one preferred by Huber. “[B]ut an employer is not required to provide a disabled employee with an accommodation that is ideal from the employee’s perspective, only an accommodation that is reasonable.” 3RD CIRCUIT In Donahue v. Conrail, the 3rd Circuit held that in a failure-to-accommodate case, a plaintiff bears the burden of demonstrating that there was a vacant, funded position; that the position was at or below the level of the plaintiff’s former job; and that the plaintiff was qualified to perform the essential duties of this job with reasonable accommodation. If the employee meets his or her burden, the employer must demonstrate that transferring the employee would cause unreasonable hardship. The “unreasonable hardship” requirement, in order to deny a transfer, appears to be more onerous than that required by the Huber court. That is, Wal-Mart was able to force Huber to compete in reliance on its general policy of hiring the most qualified candidate. Wal-Mart was not required to show that Huber could not do the job, just that she was not the best prospect for it. It is certainly a question for dispute as to whether putting a qualified, but perhaps not the most qualified, candidate into a position would be an “undue hardship.” While the Supreme Court’s decision in U.S. Airways v. Barnett gives some guidance, it does not address the issue head-on. The Barnett court held that in a union setting, an employer is not required to give an employee a higher seniority status as an ADA accommodation where it does not do so ordinarily. While Barnett stands for the general proposition that an employer need not violate a union contract to accommodate an employee, it has only limited utility in a non-union setting. The Huber decision, however, seems consistent with the ADA’s accommodation language. As noted, Huber received an accommodation, just not the one she preferred. The real test of this issue will be the case where the accommodated-employee is not the best-qualified candidate for the only position available. We will watch for that scenario as the ADA continues to generate difficult issues for the courts. SID STEINBERG is a partner in Post & Schell’s business law and litigation department. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. Steinberg has lectured extensively on all aspects of employment law, including Title VII, the FMLA and the ADA.

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