In December 2007, the United States Supreme Court agreed to hear an important case regarding the scope of required accommodations an employer must make under the Americans with Disabilities Act when a disabled employee is unable to continue in his or her job, but is able to perform a different job with the same employer.

The issue to be decided is whether an employer must reassign disabled individuals who cannot perform their currents job to vacant, equivalent positions, without having to compete with other workers for such jobs. The case, which arises out of the Eighth Circuit, involves Pat Huber, a Wal-Mart employee in Clarksville, Arkansas. After she became disabled by an injury, Ms. Huber sought a vacant position, but it was awarded to a non-disabled worker. Wal-Mart stated that the other worker was better qualified and that it followed a uniform policy of filling positions on qualifications. Ms. Huber argued that Wal-Mart was required to give her preference for the position, relying in part on Equal Employment Opportunity Commission regulations that provide that a disabled worker need not be the best qualified person for an open position to obtain it in a reassignment which is required as a reasonable accommodation for that employee’s disability.

The District Court held that Wal-Mart violated the ADA because it did not place Ms. Huber into a vacant position for which she was qualified. The Eighth Circuit reversed and held that the ADA did not require an employer to turn away a better qualified applicant in order to accommodate a disabled employee.

The Circuits are split on this issue, with the Seventh and Eighth Circuits holding that an employer need not grant preference to the disabled worker when filling a vacant position, and the Tenth and District of Columbia Circuits holding that the employer must place the disabled employee into the vacant position as long as he or she is qualified. The Second, Third, Sixth and Ninth Circuits have similarly described the reassignment duty in mandatory terms.

Argument is expected in late March, with a decision expected by the end of June.