Authored By: Dennis J. Merley Attorney View Biography

Since the enactment of the Americans with Disabilities Act (ADA), Minnesota employers have been unsure of their obligations to disabled workers who can not be accommodated in their present jobs. While many believed (with backing from some federal courts) that they only needed to allow these employees to compete with other applicants for vacant jobs, others felt (with support from other federal courts) that they were required to place these employees in vacant jobs ahead of more qualified applicants.

A ruling hot off the press from the Eighth Circuit Court of Appeals (which covers Minnesota) finally seems to have resolved this question. Read on to learn which side of this long-standing debate finally prevailed, and what questions still remain.

The accommodation issue
Pam Huber worked in the Wal-Mart grocery as an Order Filler earning $13.00 per hour (including shift differential bonus). Unfortunately, she suffered an injury to her arm and hand that prevented her from performing the essential functions of the job, even with accommodations. As a result, she asked to be reassigned to the vacant Router job, a position of equivalent pay and status as the Order Filler. Wal-Mart refused to place her there automatically, citing its policy of hiring only the most qualified applicants for vacant jobs. Therefore, Huber had to compete for the Router job with other applicants, and ultimately lost out on the job to a non-disabled applicant. Wal-Mart did, however, place Huber into a maintenance job at another facility at roughly half the wage that she had been earning.

Huber sued under the Americans with Disabilities Act (ADA), claiming that she was entitled to be placed directly into the open Router job as a legally required accommodation. Wal-Mart filed a motion for summary judgment (early dismissal), contending that the ADA did not require them to abandon their legitimate, nondiscriminatory policy of hiring the most qualified applicant for all job vacancies. Huber also filed a motion for summary judgment, which the Arkansas trial court granted. Wal-Mart then appealed to the Eighth Circuit.

Noting that they had never actually faced this question before, the Eighth Circuit Court of Appeals reversed the trial court and ruled in Wal-Mart’s favor. They began their analysis by reviewing ADA’s requirements for reasonable accommodation, which include:

[J]ob 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.

A question of balance
The judges then observed that other federal circuits had looked into this question and had come up with conflicting answers. For example, the Tenth Circuit, which covers the western plains states, ruled that the ADA required employers to place disabled workers directly into existing vacancies rather than making them compete with other applicants. The judges took particular note of the following excerpt from a Tenth Circuit decision:

[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.

On the other hand, the Seventh Circuit, which covers Wisconsin, Illinois and Michigan, has ruled that direct placement is not required, as explained in this excerpt from one of their decisions:

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.

The judges also cited approvingly a Fifth Circuit decision (covering Texas and other southern states) observing that “[t]he [ADA] does not require affirmative action in favor of individuals with disabilities. It merely prohibits employment discrimination against qualified individuals with disabilities, no more and no less.”

The Eighth Circuit judges ultimately concluded that the ADA did not require direct placement into vacant jobs, thereby siding with the neighboring Seventh Circuit. They reiterated that the ADA is not an “affirmative action statute” and does not require an employer to violate a legitimate nondiscriminatory policy of the employer to hire the most qualified candidate. Indeed, they observed that a contrary ruling would violate a basic premise of all discrimination laws since it would require an employment decision to be based on an employee’s protected classification. As such, Wal-Mart was not required to place Huber into a vacant Router job ahead of more qualified applicants.

The appeals court then ruled that Wal-Mart had actually satisfied its obligation to accommodate Huber when they placed her into the maintenance job. Though not an ideal match, nor the accommodation that Huber desired, it was a reasonable decision (presumably since it was certainly preferable to no job at all). Pam Huber, v Wal-Mart Stores Inc (8th Circuit No. 06-2238, May 30, 2007).

What do we learn?
This long-awaited decision resolves an important issue for Minnesota employers, but it does not tell the whole story. While direct placement is not required, how much must an employer do for a disabled employee to meet the accommodation obligation? Is it enough to let them compete on an equal footing with other applicants or must we do something to facilitate the application for the vacant job? How long must an employer give the disabled employee to find a suitable vacancy? These questions await answers from future cases but at least we now know how much is too much.

Remember also that while this is the interpretation of federal law, the Minnesota courts may view things differently under our state Human Rights Act.

Minnesota courts look to federal interpretations for guidance but have been known to arrive at different conclusions so nothing is certain. Still, this case gives us a solid foundation for concluding that Minnesota employers may continue to follow a practice of hiring the best person for an open job regardless of protected class status, including disability.