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[solved] Huber V Walmart Huber worked for Wal-Mart as a dry grocery order filler earning $13.00 per hour, including a $0.50 shift differential. While working...


Please see attached case study to assist with questions

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?



Huber V Walmart

 

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 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 mostqualified 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. 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. 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. ***

 

II. Discussion . . .

 

The ADA states the scope of reasonable accommodation may include: 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 router 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: [I]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 as-signing 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 enti-tled, 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 non-discriminatory policy of the employer to hire the most qualified candidate. This

 

conclusion is bolstered by the Supreme Court?s decision in U.S. 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 her job 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 statutorily protected group.? ***

 

III. Conclusion

 

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

 

Case Questions

 

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?

 


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