Introduction. Whether the reassignment provision of the Americans with Disabilities Act (ADA) requires an employer to automatically reassign a disabled employee to a position over a more qualified employee has been the subject of much debate and controversy among both scholars and federal courts.1 The ADA does not specifically provide a definition of “reasonable accommodation,” which an employer must provide if it wishes to avoid being subject to a discrimination suit, but provides a laundry list of examples of reasonable accommodations,2 the most controversial of which is “reassignment to a vacant position.”3
Wal-Mart found itself faced with a reassignment request and chose to hire the most qualified applicant for the job.4 In doing so, Wal-Mart was sued in federal court in a case that ultimately ended in a victory for Wal-Mart before the United States Court of Appeals for the Eighth Circuit.5 The Eighth Circuit became the second circuit court to weigh in on the particular issue of whether an employer’s policy of hiring the most qualified applicant for the job trumps an employee’s request for reassignment to a vacant position as a reasonable accommodation under the ADA.6
Although the Supreme Court provided some guidance in U.S. Airways, Inc. v. Barnett, when it held that generally it will not be reasonable for an employer to modify its seniority policy in order to reassign a disabled employee to a vacant position,7 the lower federal courts still remain split on what to do with employer policies to hire the most qualified applicant for a vacant position.8 The opinion in Huber v. Wal-Mart Stores, Inc. illustrates the Eighth Circuit’s difficulty in applying the Barnett opinion and failure to follow the little guidance that the Court did give on the burden of proof allocations.9 This article will set forth the facts, reasoning, and holding of the Huber opinion; provide an analytical analysis of the Huber opinion; and will conclude that there is a need for the circuit split to be resolved in order to provide a uniform interpretation of the reassignment provision.
Huber v. Wal-Mart Stores, Inc.The facts of the Huber case were relatively straight forward, as the parties stipulated to the facts.10 The plaintiff, Pam Huber, worked for Wal-Mart as a dry grocery order filler.11 Although Huber was not disabled when she acquired the position, she permanently injured her right arm in the course of her employment.12 As a reasonable accommodation, Huber requested to be reassigned to a router position, which the parties agreed was a vacant and equivalent position under the ADA.13 Although the parties agreed that Huber was qualified, she was not the most qualified person for the job.14 Wal-Mart refused to accommodate Huber, and instead gave the position to the most qualified candidate, in accordance with its Associate Job Transfer Program.15 Wal-Mart then placed Huber in a different vacant position at another facility, where she was compensated at $6.20 per hour as opposed to her former $13.00 per hour with a $0.50 shift differential.16
Pam Huber brought suit against Wal-Mart before the United States District Court for the Western District of Arkansas contending that Wal-Mart refused to reasonably accommodate her by reassigning her to a vacant position.17 Ultimately the court granted Huber’s motion for summary judgment, siding with the Tenth and D.C. Circuits and concluding that requiring a disabled employee to compete with other employees for a vacant position pursuant to an employer’s policy to hire the most qualified candidate was a violation of the ADA.18 The court reasoned that Wal-Mart’s interpretation of the statute as not requiring preference would render the “ADA meaningless as employers can completely avoid the law by adopting the same policy adopted by Wal-Mart.”19
Because the issue presented was a question of first impression for the Eighth Circuit, the court acknowledged the split in the circuits and briefly outlined the reasoning articulated by the Aka v. Wash. Hosp. Ctr., Smith v. Midland Brake, and E.E.O.C. v. Humiston-Keeling courts.20 After quoting some language from the Midland Brake opinion, the court concluded that 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.”21 The court also rejected Huber’s contention that Aka requires the employer to reassign the disabled employee over more qualified non-disabled employees.22 Instead, the court interpreted Aka as merely rejecting an interpretation of the reassignment language that would only require the employer to have the disabled employee “submit his application along with all of the other candidates.”23 Reassignment after the Seventh Circuit’s decision in E.E.O.C. v. Humiston-Keeling, Inc., according to the Eighth Circuit, “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 candidate.”24
Agreeing with the Seventh Circuit, and Wal-Mart’s contention that 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,” the court concluded that the “ADA is not an affirmative action statute” and therefore does not require an employer to reassign a disabled employee when doing so would require the employer to “violate a legitimate nondiscriminatory policy of the employer to hire the most qualified candidate.”25 Thus, one of the main concerns of the Huber court appeared to be writing affirmative action into the ADA.26 Because Wal-Mart treated Huber “exactly like all other candidates were treated for the Wal-Mart job opening, no worse and no better,” the court reasoned that Wal-Mart did not discriminate against Huber.27
Analysis. The Eighth Circuit’s opinion in Huber did not follow the analytical framework laid out in Barnett, and instead essentially created an automatic exemption for Wal-Mart’s policy to hire the most qualified candidate, which Barnett made clear is not valid under the ADA.28 Although finding support from Barnett,29 the court failed to articulate how the opinion supported the result the court reached. The court could have used the reasoning from Barnett and the focus on employee expectations to support its decision. Although the decision may have been weak in analytical support, the Huber opinion fits into the broader trend among many circuits that have been fearful to read affirmative action into the statute.
In Barnett, the Court held that generally, it will not be a “reasonable accommodation” for an employer to violate a unilaterally imposed seniority system in order to reassign a disabled employee to a vacant position. 30 The analytical framework laid out by the Supreme Court in Barnett for defeating a motion for summary judgment in the context of a reasonable accommodation claim initially involves a two step inquiry.31 First, the plaintiff bears the burden of showing that the accommodation is reasonable on its face, meaning ordinarily or in the run of cases.32 Second, after the plaintiff has made this showing, the defendant can still show that there are circumstances that would render the accommodation an undue hardship.33
There is no trace of this analysis in the circuit court opinion in the Huber case and since the court was reviewing the grant of summary judgment de novo, presumably the court should have used the Barnett approach.34 The circuit court simply concluded that the ADA is not an affirmative action statute without even analyzing the reasonableness of the proposed accommodation.35
Instead, the Huber court created an automatic exemption for providing the proposed reassignment because of the employer’s neutral policy to hire the most qualified candidate.36 If Barnett makes one thing clear, it is that the “Act does not create any such automatic exemption.”37 In fact, the Supreme Court actually rejected the same argument Wal-Mart made and the Eighth Circuit accepted, that the “simple fact that an accommodation would provide a ‘preference’ – in the sense that it would permit the worker with a disability to violate a rule that others must obey – cannot, in and of itself automatically show that the accommodation is not ‘reasonable.’”38 As one commentator has pointed out, the so-called “neutral policy defense” to reassignment claims is no longer valid after Barnett.39 Since pre-Barnett decisions that create an automatic exemption for an employer’s neutral policy are no longer good law in that narrow sense,40 the Huber court’s reliance on the Seventh Circuit’s reasoning in Humiston-Keeling, which was decided before Barnett, emphasizing the “legitimate and nondiscriminatory” or neutral nature of a policy to hire the most qualified candidate, is misplaced.41
In addition, the Eighth Circuit’s emphasis on Wal-Mart’s treatment of Huber “exactly like all other candidates . . . no better, no worse”42 ignores the Supreme Court’s statement in Barnett that “preference will sometimes prove necessary to achieve the Act’s basic equal opportunity goal.”43 Therefore, the very fact that an accommodation would require an employer to treat a disabled employee with some preference, in that the disabled employee may be allowed to have accommodations not normally permitted for other employees, does not render the accommodation unreasonable. For example, a disabled employee may be able to overcome an employer policy that only allows employees to miss a certain number of days from work if his or her disability required him or her to miss more work.44 Such an accommodation would likely be deemed reasonable in the “run of cases.”45 However, part of the reason that this accommodation might be considered reasonable may have to do with the fact that such an accommodation would not normally upset the expectations of other workers or subvert their rights.46
The Supreme Court’s main consideration in holding that the existence of an employer’s unilaterally imposed seniority policy would ordinarily prevent a disabled employee’s reassignment request from being reasonable had to do with the expectations and rights of other employees.47 The Huber court would have provided more support for its decision had it examined the reasonableness of Huber’s reassignment request in light of Wal-Mart’s policy to hire the most qualified candidate to determine if the accommodation would be reasonable in “the run of cases”48 by focusing on the effect on other employees. Although, concededly, a seniority system is different than a policy to hire the most qualified candidate,”49 the effect on “employees’ expectations of consistent, uniform treatment” could be quite similar.50
The seniority system in Barnett was unilaterally imposed, and not the result of a collective bargaining union agreement.51 However, the Court made clear that this did not make a difference since both systems create employee expectations of “fair, uniform treatment” as well as “job security” and opportunities for “steady and predictable advancement based on objective standards.”52 The Court reasoned that it would not be proper to require the employer to show more than the existence of a seniority system because doing so might “undermine the employees’ expectations of consistent, uniform treatment . . . upon which the seniority system’s benefits depend.”53 Although some scholars have argued that the Supreme Court’s holding in Barnett is limited to seniority systems,54 the rationale used to come to the conclusion that a reassignment request is not ordinarily reasonable where it would require the violation of an employer’s unilaterally imposed seniority system has application beyond this limited context.55
A unilaterally imposed seniority system and Wal-Mart’s Associate Job Transfer Program are both policies created by the employer which create expectations among employees. A Wal-Mart employee, who has been working in a particular position for a number of years, would expect to be able to apply for and obtain a vacant position if he or she was the most qualified candidate.56 To have a disabled employee automatically get the position when the disabled employee is less qualified would be contrary to the notion of uniform treatment that a policy to hire the most qualified candidate implies. All employees are treated the same under such a policy and assessed according to their qualifications, not their disability.57 If employees know that they might not be able to obtain a vacant position because a disabled employee is entitled to reassignment to the position if he or she is qualified for it, employees may be discouraged from applying for vacant positions because their expectations of uniform, consistent treatment have been upset.58 Employee expectations that all candidates will be considered equally for an open position exist whether the employee is currently employed by the company, is considering joining the company, or even if the company does not have a “policy” to hire the most qualified candidate. The existence of such a policy further legitimizes employee expectations that employees will be treated uniformly and that employment decisions will be based on “objective standards” of the employee’s qualifications and not disability.59
The Huber court could have borrowed from and expanded upon the Supreme Court’s reasoning in Barnett to bolster its conclusion that the ADA does not require Wal-Mart to reassign Huber because doing so would violate its Associate Job Transfer Program.60 The court did not even explain how Barnett supported its conclusion, but instead merely stated that its conclusion was “bolstered by the Supreme Court’s decision” in Barnett and then cited the holding in the context of a seniority system, without even attempting to compare the two systems or show how the reasoning similarly applies to policies to hire the most qualified candidate.61 The court may have structured the opinion in the way it did because of a fear that requiring Wal-Mart to automatically reassign Huber would convert the ADA into an affirmative action statute. There has been a trend among many of the circuit courts to claim that the ADA is “not an affirmative action statute” and therefore hold that the employer need not violate a neutral, nondiscriminatory policy in order to reassign a disabled employee.62 Although Huber fits with the broader trend among the circuits that refuse to read the ADA in a way that would give disabled employees the right to a position over non-disabled employees, the court created an automatic exemption for the employer’s neutral policy and justified this exemption with a pre-Barnett decision without even attempting to follow the Barnett analysis.63
Conclusion. The current circuit split has broad implications for large corporations such as Wal-Mart. It means that Wal-Mart may adhere to the practices of its Associate Job Transfer Program in the Seventh and Eighth Circuits, but must stray from its standard practices in the Tenth and D.C. Circuits, and automatically award the vacant position to a disabled employee.64 The split also has implications for disabled employees. Disabled employees have fewer rights under the ADA in the Seventh and Eighth Circuits than they do in the Tenth and D.C. Circuits.65 As Huber noted in the petition for certiorari, this inconsistency runs afoul to the legislators’ purpose “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”66 In order to effectuate the goals of the ADA as well as provide businesses with a uniform interpretation that will guide them in their policies and practices, it is necessary that the circuit split be resolved.
1 See generally E.E.O.C. v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000) (discussing the reassignment provision and finding that the Americans with Disabilities Act is not an affirmative action statute); Edward G. Guedes, Smith v. Midland Brake, Inc. – Writing Affirmative Action into the Americans with Disabilities Act?, 73 Fla. B.J. 68 (1999) (analyzing the Tenth Circuit’s decision and the possibility that it would require affirmative action by the employer towards disabled persons); Thomas F. O’Neil III & Kenneth M. Reiss, Reassigning Disabled Employees Under the ADA: Preferences Under the Guise of Equality, 17 Lab. Law. 347 (2001) (examining the reassignment provision and concluding that it should not be read in a way so as to lead to preference for the disabled).
2 42 U.S.C. § 12111(9) (2000):
The term ‘reasonable accommodation’ may include—
(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
(B) 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.
3 See, e.g., Carlos S. Ball, Preferential Treatment and Reasonable Accommodation Under the Americans with Disabilities Act, 55
Ala. L. Rev. 951 (2004) (recognizing the controversy surrounding the reassignment provision and distinguishing reasonable accommodation from affirmative action).
4 Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 481 (8th Cir. 2007).
5 Huber, 486 F.3d at 484.
6 See the Seventh Circuit effect of the reassignment provision in E.E.O.C. v. Humiston-Keeling, Inc., 227 F.3d 1024 (7th Cir. 2000). Also the Tenth Circuit in Smith v. Midland Brake, 180 F.3d 1154 (10th Cir. 1999).
7 U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 403 (2002).
8 See generally E.E.O.C. v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000); Smith v. Midland Brake, 180 F.3d 1154 (10th Cir. 1999); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284 (D.C. Cir. 1998).
9 See generally Huber, 486 F.3d 480.
10 See Huber, 486 F.3d at 481.
12 See id.
14 486 F.3d at 481.
15 Huber v. Wal-Mart Stores Inc., No. 04-2145, 2005 WL 3690679, at *1 (W.D. Ark. Dec. 7, 2005). Brief for Appellant Wal-Mart Stores, Inc. at *i, Huber v. Wal-Mart Stores, Inc., 486 F.3d 480 (8th Cir. July 19, 2006) (No. 06-2238).
16 Huber, 486 F.3d at 481.
17 Huber, 2005 WL 3690679 at *1.
18 Id. at *5.
19 Id. at *7.
20486 F.3d at 482-83.
22 Id. at 483, n. 2.
23 Id. (citing Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1305 (D.C. Cir. 1998)).
24 Id. (citing E.E.O.C. v. Humiston-Keeling, 227 F.3d 1024, 1027-28 (7th Cir. 2000)).
26 The court also referred to the Humiston-Keeling decision interpreting the statute to require Wal-Mart to automatically award the position to Huber would be “affirmative action with a vengeance. Id. (citing E.E.O.C. v. Humiston-Keeling, 227 F.3d 1024, 1029 (7th Cir. 2000)).
27 Huber, 486 F.3d at 484.
28 U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 398 (2002).
29 Huber, 486 F.3d at 483-84.
30 Barnett, 535 U.S. at 403 (2002).
31 Id. at 401-02.
33 Id. at 402.
34 Huber, 486 F.3d at 482 (“We review de novo the district court’s grant of summary judgment.”).
35 See 486 F.3d at 484.
36 See 486 F.3d at 483-84.
37 535 U.S. at 398.
38 Id. (emphasis in original).
39 Cheryl L. Anderson, “Neutral” Employer Policies and the ADA: The Implications of US Airways, Inc. v. Barnett Beyond Seniority Systems, 51 Drake. L. Rev. 1, 35 (2002).
41 Huber, 486 F.3d at 483 (citing E.E.O.C. v. Humiston-Keeling, 227 F.3d 1024, 1028 (7th Cir. 2007)).
42 Huber, 486 F.3d at 484.
43 Barnett, 535 U.S. at 397.
44 See id. at (citing Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 648 (1st Cir. 2000)).
45 See Garcia-Ayala, 212 F.3d at 648 (requiring employer to allow disabled employee to have leave longer than that normally allowed under its policy).
46 See Barnett, 535 U.S. at 398-97, 402-05
47 Barnett, 535 U.S. at 403-06.
48 Id. at 401.
49 Id. at 404 (citing Gersuny, Origins of Seniority Provisions in Collective Bargaining, 33 Lab. L.J. 518, 519 (1982)).
50 535 U.S. at 405.
51 Id. at 404.
54 Stephen F. Befort, Reasonable Accommodation and Reassignment Under the Americans with Disabilities Act: Answers, Questions, and Suggested Solutions After U.S. Airways v. Barnett, 45 Ariz. L. Rev. 931, 983 (2003)
55See Barnett, 535 U.S. at 400-01.
56 See Brief for Appellant Wal-Mart Stores, Inc. at *14, Huber v. Wal-Mart Stores, Inc., 486 F.3d 480 (8th Cir. July 19, 2006) (No. 06-2238).
57 See id.
58 See id.
59 See 535 U.S. at 404.
60 Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 483 (8th Cir. 2000).
61 Id. at 483-84.
62 E.g., E.E.O.C. v. Humiston-Keeling, 227 F.3d 1024, 1028-29 (7th Cir. 2000).
63 Huber, 486 F.3d at 483-84. As noted earlier, the court finds support from the pre-Barnett decisions in Humiston-Keeling, 227 F.3d 1024 which was decided in 2000.
64 See Joy Simmons, No job preference given under American’s with Disabilities Act powers, Missouri Lawyers Weekly, June 11, 2007, available at 2007 WLNR 10988987.
65 See id.
66 Petition for Writ of Certiorari at *15, Huber v. Wal-Mart Stores, Inc., 2007 WL 2962928 (October 4, 2007) (No. 07-480) (citing 42 U.S.C. § 12101(b)(1) (2000)) (emphasis in original).
Lindsay Omolecki is currently a third year law student at Northern Illinois University College of Law. She also serves as an Academic Support Program Tutor for first year student Contracts and Civil Procedure courses. Lindsay graduated from the University of Illinois at Urbana-Champaign in 2005.