The U.S. Supreme Court, in Huber v. Wal-Mart Stores, Inc., recently agreed to consider whether the Americans with Disabilities Act (ADA) required an employer to forego other candidates and reassign an employee with a disability to a vacant job that was equivalent to her regular job or whether the company reasonably accommodated the employee by placing her in a lower-paid job. The U.S. Court of Appeals for the 11th Circuit unanimously held that an employee at Wal-Mart’s Arkansas warehouse was not automatically entitled to be reassigned to a vacant equivalent position as a reasonable accommodation under the ADA or state law. Wal-Mart had an established policy of filling vacancies with the most qualified candidates and was not required to reject superior internal or external applicants in favor of a disabled incumbent employee. The employee was allowed to apply for the vacancy and compete with all other applicants but, ultimately, the position was given to a better qualified candidate. The court concluded that the disabled employee “was treated exactly as all other candidates were treated for the Wal-Mart job opening, no worse and no better.”

Huber did not contend that she was more qualified than the candidate selected or that the selection was a sham. She claims that the court’s decision contravenes the plain language of the ADA, as well as Congress’ intent, and that the decision creates a split in the circuit courts that must be resolved. Huber argues that the ADA specifically lists “reassignment to a vacant position” as one example of reasonable accommodation that an ADA-covered employer must provide to an employee with a disability, and that she was entitled to the vacant position so long as she was a “qualified” candidate, not the most qualified candidate.