Wal-Mart says that its workers “are the backbone of our company.” “We recognize the value they bring to our company, and we understand that our success depends on them,” the retailer explained in its recent Sustainability Progress Report. “We place a premium on building an environment where Associates are treated with respect.” Unfortunately, Wal-Mart workers often don’t find an environment of respect, and end up suing their own employer. That’s why Wal-Mart has its own in-house roster of more than 150 lawyers, with an annual budget of over $100 million in legal expenses. One such lawsuit broke through the media noise this week. It is the case of Pam Huber V. Wal-Mart. Huber claims that Wal-Mart discriminated against her once she became disabled on the job. Huber says that Wal-Mart was required to offer her an equivalent position, while Wal-Mart says it only had to allow her to compete for an equivalent job. Pam Huber took a job at Wal-Mart as an “order filler” at the distribution center in Clarksville, Arkansas. She was injured on the job at the Wal-Mart warehouse. Huber sustained a permanent injury to her right arm and hand. As a result, she could no longer perform the essential functions of the order filler job. At the time of her injury in April of 2001, she was earning $13 an hour. Wal-Mart did not dispute that she was now disabled, and could not continue to work at her existing job. Huber then applied for a job as a router, which paid 50 cents an hour less. Wal-Mart required Huber to apply and compete for the router position with other applicants. Ultimately, Wal-Mart filled the job with a non-disabled applicant and denied Huber the router position. Wal-Mart then offered her a janitorial position at only $6.20 an hour — less than half the pay at her last job. Huber took that job. Today she continues to work in that position for Wal-Mart, and now earns $7.97 per hour — 61% of her wage before she was disabled. Huber filed her lawsuit in June of 2004, charging that under the federal Americans With Disabilities Act, she only had to be qualified for the job — not the most qualified for the job — and that she should have been given the router job. Huber contends Wal-Mart, as a reasonable accommodation, should have automatically reassigned her to the vacant router position without requiring her to compete with other applicants for that position. Wal-Mart disagrees, citing its nondiscriminatory policy to hire the most qualified applicant. Wal-Mart argues that, under the ADA, Huber was not entitled to be reassigned automatically to the router position without first competing with other applicants. In federal court, Huber won her case. But Wal-Mart appealed to the 8th U.S. Circuit Court of Appeals in St. Louis, and that court reversed the lower court’s ruling, siding with Wal-Mart. The Appeals Court agreed with another case from the 7th. Circuit Court of Appeals, and said, Huber’s argument that she had to be automatically assigned the router job would turn “a nondiscrimination statute into a mandatory preference statute, a result which would be both inconsistent with the nondiscriminatory aims of the ADA and an unreasonable imposition on the employers and coworkers of disabled employees. A policy of giving the job to the best applicant is legitimate and nondiscriminatory. Decisions on the merits are not discriminatory.” But in a third case from the 10th Circuit Court of Appeals, the court ruled that “reassignment under the ADA results in automatically awarding a position to a qualified disabled employee regardless whether other better qualified applicants are available, and despite an employer’s policy to hire the best applicant.” The judge in the 8th. Circuit Court ruled that “the ADA is not an affirmative action statute3 and does not require an employer to reassign a qualified disabled employee to a vacant position when such a reassignment would violate a legitimate nondiscriminatory policy of the employer to hire the most qualified candidate.”
When Wal-Mart’s appeal to the 8th. Circuit Court was filed, the judge formed the issue in this way: “We are faced with an unanswered question: whether an employer who has an established policy to fill vacant job positions with the most qualified applicant is required to reassign a qualified disabled employee to a vacant position, although the disabled employee is not the most qualified applicant for the position.” Defending Wal-Mart, the 8th Circuit said, “the ADA does not require Wal-Mart to turn away a superior applicant for the router position in order to give the position to Huber. 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… Wal-Mart reasonably accommodated Huber’s disability by placing Huber in a maintenance associate position. The maintenance position may not have been a perfect substitute job, or the employee’s most preferred alternative job, but an employer is not required to provide a disabled employee with an accommodation that is ideal from the employee’s perspective, only an accommodation that is reasonable. In assigning the vacant router position to the most qualified applicant, Wal-Mart did not discriminate against Huber. On the contrary, Huber was treated exactly as all other candidates were treated for the Wal-Mart job opening, no worse and no better.” When this case is heard by the Supreme Court, Justice Stephen Breyer will recuse himself, because he owns Wal-Mart stock. The case is not expected to be heard until 2008, and will be decided on by July, 2008 — more than 7 years after Pam Huber was injured. That’s a long time to wait for the respect that Wal-Mart says it gives all its employees. A Wal-Mart worker becomes disabled, and has her pay cut in half, and is moved to a janitor’s position. Rodney Dangerfield must be turning in his grave.
