The United States Supreme Court has granted certiorari from an Eighth Circuit decision and has agreed to address whether an employer violates its duty, under the Americans with Disabilities Act (ADA), to provide a reasonable accommodation to an employee when, instead of reassigning the employee to a vacant, equivalent position, it merely allows the employee to compete for that position. The grant of certiorari was limited to Question 1 of the petition, which stated: "If a disability prevents an employee from performing the essential functions of his or her current position, does the ADA require: (a) that the employer reassign the employee to a vacant, equivalent position for which he or she is qualified, as the Tenth and District of Columbia Circuits have held; or (b) that the employer merely permit the employee to apply and compete with other applicants for the vacant, equivalent position for which he or she is qualified, as the Seventh and Eighth Circuits have held?"
In the decision below, addressing an issue of apparent first impression for the court, the Eighth Circuit Court of Appeals held that an employer did not violate its duty of reasonable accommodation when it required an employee with a disability to enter a pool of applicants for a vacant router position, and ultimately assigned a more qualified applicant to the vacant position and the employee to a maintenance associate position with less pay than her previous position. The ADA did not require the employer to turn away a superior applicant for the router position in order to give the position to the employee in question. Even though the employee was able to perform the job duties of the vacant router position, the employer had a non-discriminatory policy of hiring the best applicant for available positions, the Court of Appeals reasoned. The maintenance position may not have been a perfect substitute job, or the employee's most preferred alternative job, but an employer is not required to provide a disabled employee with an accommodation that is ideal from the employee's perspective, only an accommodation that is reasonable, the court explained.
The ADA's the "reassignment" language cannot be satisfied by merely permitting a disabled incumbent employee to compete with the rest of the world for a vacant, equivalent position, the employee argued in her petition for a writ of certiorari. Moreover, the petition asserted, the judges who dissented from the denial of en banc rehearing correctly observed that the Eighth Circuit's ruling "renders a statutory provision in the ADA superfluous, overlooks EEOC guidance, and is contrary to the Supreme Court's admonition in US Airways, Inc. v. Barnett, 535 U.S. 391 (2002), that preferences are a valid means to achieve the statutory goals." (Case below: Huber v. Wal-Mart Stores, Inc., 486 F.3d 480 (C.A.8-Ark. 2007), reh'g and reh'g en banc den., 493 F.3d 1002 (C.A.8-Ark. 2007).)