Here's an interesting legal development. Let's say an employee becomes disabled and the disability is clearly covered under the Americans with Disabilities Act (ADA). Under the act, employers are required to make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose an "undue hardship" on the operation of the employer's business.
Undue hardship is defined as an action requiring significant difficulty or expense when considered in light
of factors such as an employer's size, financial resources, and the nature and structure of its operation.
Reasonable accommodations are usually focused on accessibility of facilities, job redesign or acquiring/modifying equipment to make the job possible given the disability.
Look mom! I'm talking like a lawyer!
OK, back to the real world. Let's say you worked through that process and determined the available accommodations to the employee's current job would create an undue hardship to your business. What's next?
Do you have to offer that same employee an equivalent position in your organization that's open and available? Yes? No?
The Supreme Court recently agreed to hear the case of Huber v. Wal-Mart on that very issue. From the Washington Post:
"The dispute is over whether Wal-Mart was required to provide Huber with an equivalent position after her disability prevented her from performing her job, or whether the company simply had to allow her to compete for an equivalent job.
Huber's lawyers argued in court filings that the federal appeals courts have split on the issue and asked the justices to resolve the split.
Huber filled orders in a Wal-Mart distribution center in Clarksville, Ark., earning $13 an hour, when she was hurt on the job in April 2001. The company agreed she was disabled and no longer able to perform her job.
Huber applied for a job as a router, which paid $12.50, but the position was given to an employee Wal-Mart considered more qualified. Huber was offered a janitorial position that paid $6.20 an hour, her lawyers said in court papers.
Huber sued in June 2004, arguing that under ADA rules, she only had to be qualified for the equivalent position, not be the most qualified, and should have been reassigned to the router job.
Wal-Mart said in court papers that the job went to the most qualified candidate under a "standardized, legitimate, and non-discriminatory" process that is allowed under the ADA."
Interesting case and concept. If you travel out to the EEOC site, you'll see no mention of placement to other positions as a possible or expected means of accommodation. I suspect the big thing that works against Wal-Mart here is what kills it in every other employment topic - it's size. Let's assume that the Distribution Center she was at had 300-400 employees. With that in mind, you have to assume that they have multiple router positions (although I have no clue what that position does). If there are multiple openings every year for that role, the emotional response becomes, "why not put her in that role?" if the turnover and staffing trends suggest you are going to fill it multiple times annually?
Of course, Wal-Mart doesn't want that precedent forcing them to allow ADA-categorized employees to call their own shots about what job they want to do, so they'll fight it, all the way to the Supreme Court.
Which is where they are. We'll see what happens. This is a tough one - you want to treat employees well, but you don't want employees having the ability to force themselves into a bad match that erodes productivity and, potentially, the morale of the location.
The ADA, by its very terms, specifically includes reassignment to a vacant position as a type of reasonable accommodation that employers should consider: "The term 'reasonable accommodation' may include ... reassignment to a vacant position...." 42 U.S.C. sec. 12111(9)(B). By the same token, though, an employee is only entitled to a reasonable accommodation, and not necessarily his or her preferred accommodation. We can debate whether a transfer to an open position that cut Huber's pay in half is reasonable, but that is a debate for another day.
A ruling for the employee in this case would undermine one of the most important commandments of employment law - Thou shalt hire the most qualified person for all open positions. When you don't hire the best person, it could lead a court to second-guess your judgment and question why a member of a protected class was overlooked in favor of the second/third/fourth/whatever best person.
I agree that you want to treat employees well, but that treatment includes an implicit understanding between that company and all employees that people should be rewarded for merit, and not for preferences based on some protected status.
Posted by: Jon Hyman | December 19, 2007 at 07:09 AM