Before acquiring her disability, Pam Huber earned $13.00 per hour as an Order Filler in Wal-Mart's Clarksville, Arkansas distribution center. Ms. Huber then injured her right arm and hand in an accident, was no longer able to perform her job duties, and requested that Wal-Mart accommodate her by transferring her to a vacant, equivalent position. At the time Ms. Huber requested this accommodation, there was an open Router position in the Clarksville distribution center that paid $12.50 an hour. Even though Ms. Huber was qualified for the Router position, rather than transfer her, Wal-Mart required her to compete for the position and then filled the position with another person they believed to be better qualified. Wal-Mart then assigned Ms. Huber to a janitorial position at another facility, reducing her pay to $6.20 an hour.
Ms. Huber sued Wal-Mart, claiming that their refusal to transfer her to the vacant, equivalent position constituted discrimination in violation of the Americans with Disabilities Act ("ADA"). The trial court agreed with Ms. Huber, and said that "forcing a qualified, disabled employee to compete with others in order to be provided a reassignment as a reasonable accommodation for [her] disability violates the ADA." Wal-Mart appealed that order to the Eighth Circuit Court of Appeals, which reversed the trial courtís decision. The appellate court said that the ADA only required Wal-Mart to allow Ms. Huber to compete for the Router position and that the statute did not require Wal-Mart to turn away a superior applicant. Quoting the Seventh Circuit Court of Appeals in EEOC v. Humiston-Keeling (2007), the court added, "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."
Ms. Huber appealed this decision to the United States Supreme Court, which granted a writ of certiorari to hear the case in 2008. On January 14, 2008, however, the parties reached a confidential settlement agreement.
The ADA further provides that reassignment to a vacant position is an example of a reasonable accommodation that employers may offer.
The Equal Employment Opportunity Commission, which created the regulations to implement the employment provisions of the ADA, has indicated the employee only has to be qualified for the vacant, equivalent position, and does not need to be the best qualified person for the position in order to be reassigned to it. Wal-Mart argued that it allowed Ms. Huber to compete for the Router position, but did not select her because she was not the best qualified applicant.
The Supreme Court was set to hear oral arguments in this case in the spring of 2008, however, the Court agreed to dismiss this suit on January 14, 2008, after Ms. Huber and Walmart reached a confidential settlement. For now, whether the ADA requires an employer to reassign an employee with a disability to a vacant position for which a more qualified applicant exists is a question that will remain unanswered by the nation's highest court. The Eighth Circuit's decision that the employer does not have to reassign the employee with a disability to the position but can place a more qualified individual in the position, will stand.