Thursday, May 31, 2007

8th Cir: ADA Is Not An Affirmative Action Statute

Scale_of_justice The Eight Circuit in Huber v. Wal-Mart Stores, No. 06-2238 (8th Cir. May 30, 2007), has added to a circuit split over whether a qualified individual with a disability must be mandatorily reassigned to a different job as a reasonable accommodation or must compete for that job with other non-disabled individual.

The 8th Circuit has joined the 7th Circuit in finding that the disabled individual is not entitled to the job without competing for it with other employees:

We agree and conclude the ADA is not an affirmative action statute and does 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.

The 10th Circuit in Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999) (en banc),disagrees with this conclusion.  I think the 10th Circuit has the better argument when it stated:

[I]f the reassignment language merely requires employers to consider on an equal basis with all other applicants an otherwise qualified existing employee with a disability for reassignment to a vacant position, that language would add nothing to the obligation not to discriminate, and would thereby be redundant. . . .

Sam Bagenstos at the Disability Law Blog also agrees:

In my view, the Eighth Circuit got it wrong. The ADA explicitly lists reassignment to a vacant position as a possible accommodation. If the Eighth Circuit is right, however, Congress accomplished absolutely nothing by adding the language about reassignment. Under the Eighth Circuit's interpretation, the employer is required to reassign an employee only if it would have reassigned her anyway, in the absence of the ADA. But Congress clearly meant to accomplish more than that, and the Supreme Court in US Airways v. Barnett seemed to recognize the point.

Hat Tip:  Hank Leland


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Having practiced in the Eighth Circuit, it's recent interpretation of the ADA does not surprise me. Responding to Eugene's question, the ADA does not require promotions as accommodations. I would guess the university would argue that a tenure-track position would be a promotion over a position not on the tenure track. In the 8th Circuit decision, the court indicated the positions were equivalent.

I appreciate Eugene's question, though. It certainly questions our assumptions about employers' rights and abilities to make decisions about white collar versus other employees.


Posted by: Sandra Sperino | May 31, 2007 2:29:30 PM

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