Do I Have to Fill a Vacancy With a Qualified Disabled Employee or Can I Hire the Most Qualified Applicant?

Is an employer who has an established policy to fill vacant job positions with the most qualified applicant, required to reassign a qualified disabled employee to a vacant position, although the disabled employee is not the most qualified applicant for the position?  Pam Huber (Huber) brought an action against Wal-Mart Stores, Inc. (Wal-Mart), claiming discrimination under the Americans with Disabilities Act of 1990 (ADA).

Huber worked for Wal-Mart as a dry grocery order filler earning $13.00 per hour, including a $0.50 shift differential.  While working for Wal-Mart, Huber sustained a permanent injury to her right arm and hand.  As a result, she could no longer perform the essential functions of the order filler job.  The parties stipulated Huber’s injury is a disability under the ADA.

Because of her disability, Huber sought as a reasonable accommodation, reassignment to a router position, which the parties stipulated was a vacant and equivalent position under the ADA.  Wal-Mart, however, did not agree to reassign Huber automatically to the router position.  Instead, pursuant to its policy of hiring, the most qualified applicant for the position, Wal-Mart required Huber to apply and compete for the router position with other applicants.  Ultimately, Wal-Mart filled the job with a non-disabled applicant and denied Huber the router position.  Wal-Mart indicated, although Huber was qualified with or without an accommodation to perform the duties of the router position, she was not the most qualified candidate.  The parties stipulated the individual hired for the router position was the most qualified candidate.

Wal-Mart later placed Huber at another facility in a maintenance associate position (janitorial position), which paid $6.20 per hour.  Huber continues to work in that position and now earns $7.97 per hour.

Huber filed suit under the ADA, arguing she should have been reassigned to the router position as a reasonable accommodation for her disability.  Wal-Mart filed a motion for summary judgment, contending it had a legitimate non-discriminatory policy of hiring the most qualified applicant for all job vacancies and was not required to reassign Huber to the router position.

The dispute is whether the ADA requires an employer, as a reasonable accommodation, to give a current disabled employee preference in filling a vacant position when the employee is able to perform the job duties, but is not the most qualified candidate.

Huber contends Wal-Mart, as a reasonable accommodation, should have automatically reassigned her to the vacant router position without requiring her to compete with other applicants for that position.  Wal-Mart disagrees, citing its non-discriminatory policy to hire the most qualified applicant.

Wal-Mart argued that Huber was not entitled, as a reasonable accommodation, to be reassigned automatically to the router position.  Instead, Wal-Mart contended 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 ruled that Wal-Mart’s approach was persuasive and in accordance with the purposes of the ADA.  To rule otherwise would convert a nondiscrimination statute into a mandatory preference statute, a result which would be both inconsistent with the nondiscriminatory aims of the ADA and an unreasonable imposition on the employers and coworkers of disabled employees.  A policy of giving the job to the best applicant is legitimate and nondiscriminatory.  Decisions on the merits are not discriminatory.

The Court concluded that the ADA was not an affirmative action statute and did not require an employer to reassign a qualified disabled employee to a vacant position when such a reassignment would violate a legitimate nondiscriminatory policy of the employer to hire the most qualified candidate.  This conclusion is bolstered by the Supreme Court’s decision in U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 406 (2002), holding that an employer ordinarily is not required to give a disabled employee a higher seniority status to enable the disabled employee to retain his or her job then another qualified employee invokes an entitlement to that position conferred by the employer’s seniority system.

Thus, the ADA does not require Wal-Mart to turn away a superior applicant for the router position in order to give the position to Huber.  To conclude otherwise is “affirmative action with a vengeance.  That is, giving a job to someone solely on the basis of his status as a member of a statutorily protected group.”

Here, Wal-Mart did not violate its duty under the ADA to provide a reasonable accommodation to Huber.  Wal-Mart reasonably accommodated Huber’s disability by placing Huber in a maintenance associate position.  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 (emphasis added).  In assigning the vacant router position to the most qualified applicant, Wal-Mart did not discriminate against Huber.  On the contrary, Huber was treated exactly as all other candidates were treated for the Wal-Mart job opening, no worse and no better.

If you have any ADA questions, or a specific event that you need guidance on, HR-OneSource can provide help.  Please contact Jack Lipovac, SPHR, lipovacj@hr-onesource.com at (515) 221-1718.