Case Study: Huber vs Walmart Inc.

Employment Law for Business | 8th Edition

Huber v. Wal-Mart Stores, lnc.486FJd480 (8th Cir. 2007)

Huber worked for Wal-Mart as a dry grocery order filler earning $13.00 per hour, including a 80.50 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 site apply and compete for the router position with other applicants. Ultimately, it filled the job instead with a nondisabled 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 86.20 per hour.

Pam Huber brought an action against Wal-Mart Stores, Inc., claiming discrimination under the Americans with Disabilities Act of 1990. The parties filed cross-motions for summary judgment The district court granted summary judgment in favor of Huber. Wal-Mart appealed and the Circuit Court reverses.

Riley, C. J.

We are faced with an unanswered question: 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.

ll. Discussion

. . . The ADA states the scope of reasonable accommodation may include:

[J ) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. Huber contends Wal-Mart, as a reasonable accommodation, should have automatically reassigned her to the vacant route position without requiring her to compete with other applicants for that position. Wal-Mart disagrees, citing its non-discriminatory policy to hire the most qualified applicant. Wal-Mart argues that, under the ADA, Huber was not entitled to be reassigned automatically to the router position without first competing with other applicants. This is a question of first impression in our circuit. As the district court noted, other circuits differ with respect to the meaning of the reassignment language under the ADA.

The Tenth Circuit in Smith v. Midland Brake, Inc (10th Cir. 1999] stated:

[l]f the reassignment language merely requires employers to consider on an equal basis with all other applicants an otherwise qualified existing employee with a disability for reassignment to a vacant position, that language would add nothing to the obligation not to discriminate, and would thereby be redundant . . .

Thus, the reassignment obligation must mean something more than merely allowing a disabled person to compete equally with the rest of the world for a vacant position.

In the Tenth Circuit, 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.

On the other hand, the Seventh Circuit in EEOC v. Humiston-Keeling, Inc. {7th Cir. 2000) explained:

The reassignment provision makes clear that the employer must also consider the feasibility of assigning the worker to a different job in which his disability will not be an impediment to full performance, and if the reassignment is feasible and does not require the employer to turn away a superior applicant, the reassignment is mandatory. in the Seventh Circuit, 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

Wal-Mart urges this court to adopt the Seventh Circuit’s approach and to conclude (1) Huber was not entitled, as a reasonable accommodation, to be reassigned automatically to the router position, and (2) 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. We find this approach persuasive and in accordance with the purposes of the ADA As the Seventh Circuit noted in Humiston-Keeling:

The contrary rule would convert a nondiscrimination statute into a mandatory preference statute, a result which would be both inconsistent with the nondiscriminatory aims of the ADA and an unreasonable imposition on the employers and coworkers of disabled employees. A policy of giving the job to the best applicant is legitimate and nondiscriminatory.

Decisions on the merits are not discriminatory.

"[T]he [ADA] is not a mandatory preference act."

We agree and conclude the ADA is not an affirmative action statute and does not require an employer to reassign a qualified disabled employee to a vacant position when such a reassignment would violate a legitimate nondiscriminatory policy of the employer to hire the most qualified candidate. This conclusion is bolstered by the Supreme Court’s decision in US. Airways, inc. v. Barnett (2002), holding that an employer ordinarily is not required to give a disabled employee a higher seniority status to enable the disabled employee to retain his or herjob when another qualified employee invokes an entitlement to that position conferred by the employer’s seniority system. We previously have stated in dicta that "an employer is not required to make accommodations that would subvert other, more qualified applicants for the job.”

Thus, the ADA does not require Wal-Mart to turn away a superior applicant for the router position in order to give the position to Huber. 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 statutori protected group.”

ill. Conclusion

We reverse the judgment of the district court, and we remand for entry of judgment in favor of Wal-Mart consistent with this opinion.

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 implications might this case have for determining the reasonableness of other forms of accommodation?