High Court to Hear Case on ADA Job Applicants

Lower courts divided on whether employers must hire disabled, less qualified workers

United States


Business Insurance

December 17, 2007


By Judy Greenwald
WASHINGTON-The U.S. Supreme Court may finally resolve the issue of whether employers must offer disabled workers a vacant job if a better qualified applicant is available.

The court has agreed to review a May 3 ruling by the 8th U.S. Circuit Court of Appeal in St. Louis in Pam Huber vs. Wal-Mart Inc., in which the appellate court held that employees are not required to offer positions to less qualified, disabled workers. Federal appellate courts have issued divided opinions on the issue.

The case involved Ms. Huber, who sustained a permanent injury to her right arm and hand while working at a Bentonville, Ark.-based Wal-Mart store as a dry grocery order filler. She sought reassignment to a router position as a reasonable accommodation under the Americans with Disabilities Act.

But Wal-Mart required her to apply and compete for the position with other applicants, and ultimately filled the job with a nondisabled applicant, explaining that Ms. Huber was not the most qualified candidate. Instead, it placed her in a lower-paying maintenance associate position at the time.

The appellate court agreed with a 2000 7th U.S. Circuit Court of Appeals decision and held that the ADA “is not an affirmative action statute” and does not require an employer to reassign a disabled worker “when such a reassignment would violate a legitimate nondiscriminatory policy of the employer to hire the most qualified candidate.”

In 1999, though, the 10th U.S. Circuit Court of Appeals in Denver held that under the ADA, employers are obligated to automatically reward a position to a qualified disabled worker.

The Supreme Court will most often agree to review cases when it seeks “to resolve what it presumably perceives to be a difference of opinion among the lower federal courts,” said Andrew Tauber, an attorney in Mayer Brown L.L.P.’s Washington office. It will also hear cases when the issue “is clearly a matter of federal statutory interpretation.” Both conditions were met in the Huber case, he said.

Attorneys disagree over how the court, which is expected to hear oral arguments in the case in March, is likely to rule.

Ms. Huber’s attorney, C. Brian Meadors of Pryor, Robertson Beasley, Smith & Karber P.L.L.C. in Fort Smith, Ark., said he is optimistic Ms. Huber will prevail. He acknowledged that several of the court’s justices are considered to be conservative, but added, “Conservative judges uphold the statutory text, and in this case, the statutory text (of the ADA) favors Pam Huber, and so any intellectually honest reading of the statutory text will result in a victory” for her.

But Prashant K. Khetan, an attorney with Ross, Dixon & Bell L.L.P. in Washington, said, “Given the history of this particular court, I would imagine that there’s a strong likelihood that they would rule in favor of the employer in this case.”

Jonathan T. Hyman, an employer attorney with Kohrman, Jackson & Krantz P.L.L. in Cleveland, said he expects the court to rule in Wal-Mart’s favor.

“I think it would be a dangerous precedent to write affirmative action into the ADA by saying you don’t have to hire the most qualified person for a position,” said Mr. Hyman. Hiring the most qualified person is “one of the cornerstones of employment law,” he said.

“I suspect the Supreme Court’s going to uphold the decision,” said Dennis J. Merley, an employer attorney with Felhaber, Larson Fenlon & Vogt P.A. in Minneapolis. “There’s been a concerted effort in the last few years to limit the number of cases that can be brought under the ADA, and to kind of draw back from the amount of responsibility that supposedly has been imposed on employers.”

“I think the Supreme Court is going to recognize that under the ADA, (disabled) employees aren’t entitled to necessarily be favored over other employees,” said Mr. Merley,

A spokeswoman for Wal-Mart said, “We are confident that the 8th Circuit decision represents the correct interpretation of the law, and welcome the opportunity to present the case to the United States Supreme Court.”





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