May 2008

What You Should Do in the Wake of an Unresolved Circuit Split

By Beverly W. Garofalo

The United States Supreme Court was poised this term to decide an important issue arising under the Americans With Disabilities Act (“ADA”) that has vexed employers for years. At issue was whether the ADA requires employers to reassign an employee who, due to a disability, can no longer perform the essential functions of his position, to a vacant, equivalent position for which he is qualified or whether the disabled employer must merely permit the employee to compete for such a position with other applicants. Unfortunately, the case of Huber v. Wal-Mart Stores, Inc. settled after the Supreme Court had granted certiorari to decide this issue, leaving an existing split among the circuits.

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