ADA job reassignment issue on review by US Supreme Court

The US Supreme Court recently agreed to take up an issue over which lower federal courts of appeal have differed: whether an employer who has an established policy to fill vacant job positions with the most qualified applicant is required under the ADA to reassign a qualified disabled employee to a vacant position rather than merely permit the disabled employee to compete with other qualified applicants. See Huber v. Wal-Mart Stores, Inc., 486 F.3d 480 (8^th Cir. 2007), cert granted, Huber v. Wal-Mart Stores, Inc., --- S.Ct. ----, 2007 WL 2978334, 76 USLW 3200 (U.S. Dec 07, 2007) (NO. 07-480). Some federal appeals courts, including the seventh and eight circuits, take the position that the ADA's reasonable accommodation requirement does not obligate the employer to give preference to a disabled employee over non-disabled employees when there is a vacant job that both employees are qualified to perform. These courts have reasoned that the ADA is not an "affirmative action" statute - it merely proscribes discrimination on the basis of a disability. Other courts, including the ninth and tenth circuits, essentially have said that the employer must permit the disabled employee to take the vacant job, provided that the employee can perform the essential functions of that job.

Lower California courts interpreting the disability discrimination provisions under the Fair Employment and Housing Act ("FEHA") have followed the rule adopted in the ninth and tenth circuits; i.e, that a disabled employee must be reassigned to a vacant position if qualified to perform in that position, even though more qualified employees also might be seeking that position. While the California Supreme Court has not ruled on this issue, a recent decision from that Court suggests that it is taking a conservative view on the protections offered under FEHA's disability discrimination provisions. Hence, in Green v. State (2007) 42 Cal.4^th 454, the Court held, consistent with federal court interpretations of the ADA, that before an employee can recover on a claim that the employer discriminated against the employee because of a disability, the employee must prove that he or she had the ability to perform the essential duties of the job (with or without a reasonable accommodation).

Persons wishing further information or who have questions or comments about either the Huber case or any of the cases that have appeared on this website can contact any of the attorneys at Epstein, Turner & Song.