Sunday, December 9, 2007
On December 7, 2007, the Supremes granted cert. in a major disability discrimination case involving non-other than Walmart. The case is Huber v. Wal-Mart, 07-480. SCOTUS Blog describes the case as follows:
The issue to be decided is whether an individual who is disabled and cannot perform her present job must be reassigned to a vacant, equivalent position without having to compete with other workers for that slot. The case involves Pat Huber, a Wal-Mart employee in Clarksville, Ark. After she became disabled by an injury, she sought an open job, but a non-disabled worker gained the position. Wal-Mart said the other worker was better qualified, and that it followed a policy of basing such assignments on qualifications. The appeal says that the U.S. Equal Employment Opportunity Commission has issued regulations providing that a disabled worker need not be the best qualified for an open position to obtain it in a reassignment. The Americans with Disabilities Act requires employers to make “reasonable accommodations” for their disabled employees. The Circuit Courts are split on the issue at stake.
The issue in this case is not very different from affirmative action. It is an issue involving the use of preferences and essentially a claim of reverse disability discrimination. Disability discrimination, however, is a bit different than race discrimination. For one we are dealing with a different statute and second, the disabled do not share the same history of discrimination as blacks. However, blacks are not the only minority group that benefits from affirmative action. Some affirmative action programs give preference to women and other minorities. I believe that ultimately the court will treat this case like a case involving reverse discrimination involving non-suspect classes. Look for a lower level of scrutiny to be applied. Additionally, a degree of deference is also likely to be paid to the EEOC which has issued detailed regulations and guidance under the ADA.
Here's important documents:
Mitchell H. Rubinstein