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ADA: Qualifications trumps reassignment right
June 01, 2007 by Ross Runkel at LawMemo
Does the ADA require reassignment to a vacant position when another employee is more qualified?
Or, as the 8th Circuit stated the issue: "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, even though the disabled employee is not the most qualified applicant for the position."
Circuit courts are split on this issue, and the 8th Circuit is now in the "No" column. Huber v. Wal-Mart (8th Cir 05/30/2007)
In the 10th Circuit, the reassigned disabled employee is automatically awarded the position regardless of whether other better qualified applicants are available - and regardless of an employer's policy to hire the best applicant.
In the 7th Circuit, the ADA does not require an employer to reassign a qualified disabled employee to a job for which there is a more qualified applicant, when the employer has a policy to hire the most qualified applicant.
The 8th Circuit opted for the 7th Circuit's approach, saying that the ADA "is not an affirmative action statute." The 8th Circuit also reasoned that its decision was "bolstered" by US Airways v. Barnett, 535 US 391 (U S Supreme Court 2002), which held that an employer is not ordinarily required to give a disabled employee a higher seniority status to enable the employee to retain his or her job, when another qualified employee is entitled to that position pursuant to the employer's seniority system.
My view: The decision is correct. The ADA seeks to level the playing field, not to give an advantage to disabled employees.
However, there is a stupid rule being followed in many circuits that could make "level playing field" a hollow slogan. At the pretext stage, many courts require the plaintiff to prove that his or her qualifications were so much greater than the other person's that no reasonable employer would have promoted the other employee. That rule reverses the normal burden at the summary judgment stage. I'd like to see the Supreme Court fix that one because it is so clearly wrong.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
