December 10, 2007
William Becker

If a disabled employee cannot perform his or her job, must an employer give the employee preference in applying for an open position?  Or, does the employer simply have to allow the employee to apply on the same level as any other applicant? 
 
The US Supreme Court recently decided to answer this question in a disability discrimination case involving Wal-Mart and its employee Pam Huber.  Huber suffered an accident on the job and became "disabled," as that term is defined in the Americans with Disabilities Act (ADA).  As a result, she could no longer perform her job at Wal-Mart's Arkansas distribution center.  Huber attempted to apply for a different job that paid closer to what she had been earning, but the job was given to a non-disabled employee based on superior qualifications.  Wal-Mart only offered to accommodate Huber by giving her a janitor's job that paid about half as much as her former position.  Huber sued, and a federal court in Arkansas initially ruled in her favor.  The Eighth Circuit Court of Appeals reversed, siding with Wal-Mart.  The Eighth Circuit stated that the ADA "only requires Wal-Mart to allow Huber to compete for the job, but the statute does not require Wal-Mart to turn away a superior applicant."
 
The US Supreme Court agreed to hear the case.  Presumably, the Justices will determine whether an employer, in providing a reasonable accommodation, must provide a disabled employee with an open position without competition, or whether the employer merely must allow the disabled employee to contend for the open job.
 
An article discussing the case can be found at the following link.
 
http://money.cnn.com/2007/12/07/news/companies/walmart_lawsuit.ap/index.htm