Job Reassignment Under ADA Remains Unclear
By
Richard Meneghello
(Labor Letter, March 2008)
While the Supreme Court stands to be quite busy in the next several months deciding important employment law questions, it will not issue a ruling in one of the more widely-anticipated cases that had appeared on its docket this term: Huber v. Wal-Mart Stores, Inc.
This case was to decide the correct standard to apply in ADA cases when an employee seeks a reassignment to a new position as a reasonable accommodation – should that employee merely be afforded the opportunity to compete with other applicants in the normal hiring pool, or should the employer be forced to grant preferential treatment and automatically reassign that employee above more qualified applicants?
Currently, the Courts of Appeals for the Eighth and Seventh Circuits (which cover many Midwestern states such as Illinois, Indiana, Wisconsin, Missouri, Arkansas, and Minnesota) apply the more employer-friendly interpretation, while the Courts of Appeals for the Tenth Circuit (Colorado, New Mexico, Utah, etc.) and the District of Columbia apply the "affirmative action" employee-friendly standard.
The Courts of Appeal for the Second, Third, Sixth and Ninth Circuits (covering a huge swath of the country, including New York, New Jersey, Pennsylvania, Ohio, Michigan, California, Nevada, Oregon, Washington, etc.) also lean toward the more employee-friendly interpretation and seemingly require such preferential treatment.
Despite this split in authority, leading to problematic applications for national employers with a workforce spanning across the country, the Supreme Court will not resolve the issue during this term. The parties to the underlying matter resolved the dispute and it was removed from the Court’s docket in January. Employers can only hope that the issue will once again present itself in the near future so that the Supreme Court can issue much needed clarity.
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