1. Are you more persuaded by the analysis of the Tenth Circuit or the Seventh and Eighth (current case)?
2. Does this case represent a clear win for the employer? What guidance would you give an employer after the holding in this case? What policies might be most effective?
3. What implications might this case have for determining the reasonableness of other forms of accommodation?

Issue: Whether an employer who has an established policy to fill vacant job positions with the 

most qualified applicant is required to reassign a qualified disabled employee to a vacant position, although the disabled employee is not the most qualified applicant for the position.

Facts: Huber worked for Wal-Mart as a dry grocery order filler earning $13.00 per hour, including a $0.50 shift differential. While working for Wal-Mart, she injured her right arm and hand and could no longer perform the essential functions of the order filler job. Because of her disability, Huber sought reasonable accommodation in the form of reassignment to a vacant router position, which was an equivalent position under the ADA. Wal-Mart, however, did not agree to reassign Huber automatically to the router position. Instead, pursuant to its policy of hiring the most qualified applicant for the position, Wal-Mart required that she apply and compete for the router position with other applicants. Ultimately, it filled the job instead with a non-disabled applicant. Wal-Mart explained that, although Huber was qualified with or without an accommodation to perform the duties of the router position, she was not the most-qualified candidate. Everyone involved agreed that the individual hired for the router position was the most qualified candidate. Wal-Mart later placed Huber at another facility in a maintenance associate position (janitorial position), which paid $6.20 per hour. Huber filed suit against Wal-Mart claiming discrimination under the ADA and the District Court granted summary judgment to Huber.

Decision: Huber was not entitled, as a reasonable accommodation, to be reassigned automatically to the router position, and the ADA only requires Wal-Mart to allow Huber to compete for the job, but does not require Wal-Mart to turn away a superior applicant. 

While the Tenth Circuit finds that reassignment under the ADA results in automatically awarding a position to a qualified disabled employee regardless whether other better qualified applicants are available, and despite an employer’s policy to hire the best applicant, we find the Seventh Circuit approach more persuasive. The Seventh Circuit holds that ADA reassignment does not require an employer to reassign a qualified disabled employee to a job for which there is a more qualified applicant, if the employer has a policy to hire the most qualified applicant. To find 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.”