The Accommodation of Last Resort: The Americans with Disabilities Act and Reassignments

Congress [has] acknowledged that society's accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.-Associate Justice William J. Brennan, Jr.1INTRODUCTIONPam Huber, a dry grocery order filler employed at Wal-Mart's Clarksville, Arkansas distribution center, permanently injured her right arm and hand.2 Because Huber could no longer perform the essential functions of a dry grocery order filler, she sought reassignment to a vacant router position.3 Both the dry grocery order filler position and the router position paid approximately $13.00 an hour.4 At the time, Wal-Mart maintained a policy of awarding each reassignment to the most qualified candidate who applied for the reassignment, commonly referred to as a "best-qualified reassignment policy." 5 Under this policy, Huber was required to compete with nondisabled employees who also sought the router position.6 Wal-Mart eventually filled the router position with a nondisabled employee who was more qualified than Huber.7 Huber was then reassigned to a janitorial position at a different location that only paid $6.20 an hour.8In 2010, an estimated 56.7 million Americans, like Pam Huber, suffered from disabilities.9 Numerous polls and statistics repeatedly demonstrate that disabled Americans experience high levels of unemployment and earn less income than nondisabled Americans.10 In an effort to address the economic problems of the disabled community Congress enacted the Americans with Disabilities Act ("ADA").11 Under certain circumstances the ADA requires, among other things, that employers reassign disabled employees to vacant positions ("reassignment clause").12 Courts have struggled with the scope of this statutory requirement because nondisabled employees can be adversely affected by the reassignment of disabled employees.13Pam Huber never received the router position because the U.S. Court of Appeals for the Eighth Circuit held that the ADA only provides disabled employees with the opportunity to compete for vacant positions.14 In that Circuit, employers are not required to reassign disabled employees to vacant positions if there are more qualified nondisabled candidates.15 If Pam Huber had worked in neighboring Oklahoma instead of Arkansas, however, she likely would have received the router position.16 This is because the U.S. Court of Appeals for the Tenth Circuit holds that the ADA requires employers to do more than simply allow disabled employees to compete with nondisabled employees for reassignments.17 These dueling interpretations of the ADA's reassignment clause have led to the unequal treatment of disabled employees from Circuit to Circuit.18 Although the U.S. Supreme Court has had the opportunity to resolve this circuit split, it recently declined to grant a petition for writ of certiorari in a case that would have put the ADA's reassignment clause before the Court.19This Note discusses the development of the circuit split and offers a solution for resolving the split in favor of entitling disabled employees to noncompetitive reassignments.20 Employers would thus have to reassign disabled employees to vacant positions before considering any nondisabled ees.21 Part I this Note discusses the background of the ADA and the mechanics of the ADA's reassignment clause.22 Part I then highlights a landmark U.S. Supreme Court decision that has further divided the lower courts.23 Part II analyzes the circuit split and the underlying rationales.24 Finally, Part III argues that the text and legislative history of the ADA support noncompetitive reassignments when no other reasonable accommodations allow a disabled employee to perform his or her essential job functions.25 Additionally, Part III discusses how noncompetitive reassignments have the potential to reduce government spending, whereas safeguards in both the ADA and U.S. Equal Employment Opportunity Commission ("EEOC") Guidelines mitigate possible negative side effects of noncompetitive reassignments. …