How Your ZIP Code Determines Your

Employees Legal Rights

Alan Rupe (/authors/421-alan-rupe/articles)
September 25, 2007
Most employers know that employment laws vary across the country. How much of a
difference is often surprising to business owners and human resource professionals.
Sometimes, what law applies to employees and how the law is interpreted by the courts is
more a function of your ZIP code than anything else.
Take, for example, my home state of Kansas. While the states flat plains have plenty of
blue sky overhead, the ceiling on discrimination claims is very low: Damages are limited to
$2,000 for any lawsuit brought under the Kansas Act Against Discrimination. And for most
lawsuits filed pursuant to the 1964 Civil Rights Act, damages are capped at $300,000.
Across the border in Missouri, the potential for plaintiffs damage awards, according to
Missouri state discrimination laws, is sky highno caps. Its obvious: Your companys ZIP
code may determine which discrimination laws apply to you, as well as how they apply.
There are11 circuit courts of appeal in the U.S. judicial system
(http://www.uscourts.gov/images/CircuitMap.pdf), each comprising a handful of states. The
8th Circuit, for example, takes in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North
Dakota and South Dakota. Next door, the 10th Circuit includes Colorado, Kansas, New
Mexico, Oklahoma, Utah and Wyoming. But those neighboring appeals courts may have
wide splits for many years on particular legal issues. For example, a ruling from the 8th
Circuit on an individuals rights under the Americans With Disabilities Act will differ from the
10th Circuits interpretation of the same set of facts. Your ZIP code, which circuit governs
your companys location, may be the determining factor in whether you, as an employer,
have violated the ADA.
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The federal ADA requires most employers to make a "reasonable accommodation" for
"qualified" employees who can no longer perform the essential functions of a job. A
"reasonable accommodation" is defined as "job restructuring, part time or modified work
schedules, reassignment to a vacant position, acquisition or modification of equipment or
devices, appropriate adjustment or modifications of examinations, training materials or
policies, the provision of qualified readers or interpreters, and other similar accommodations
for individuals with disabilities."
Sounds pretty simple. But the 8th and 10th Circuits have issued widely differing rulings
defining the simple phrase "reassignment to a vacant position."
The 10th Circuit, in the case of Smith v. Midland Brake Inc. (180 F.3d 1154 [10th Cir.
1999]), ruled that a disabled employee must be automatically reassigned to an existing
vacant position. Robert Smith was employed by Midland Brake when he developed a
disability that prevented him from performing the essential functions of his job. Smith was
ultimately fired by Midland. As you might expect, Smith sued Midland for discrimination
under the ADA. Midland successfully proved to the trial court that it could not accommodate
Smiths disability. Smith appealed, and the 10thh Circuit took up the appeal.
The 10th Circuit focused on the definition of "reassignment to a vacant position." The court
relied on the EEOCs Interpretive Guidance: "Does reassignment mean that the employee is
permitted to compete for a vacant position? No. Reassignment means that the employee
gets the vacant position if s/he is qualified for it. Otherwise, reassignment would be of little
value and would not be implemented as Congress intended."
And in doing so, the court determined that a reassignment of a qualified person with a
disability was required if a vacant position was available and no other reasonable
accommodation could be made. A disabled employee did not have to compete with other
applicants for a vacant position, but the employee should be moved into the position by
default. Although there were other factors in its decision, the 10th Circuit found the EEOCs
guidance in favor of an automatic reassignment to be particularly persuasive.
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But next door at ZIP code 72716, in the case of Huber v. Wal Mart Stores Inc., decided in
May 2007, the 8th Circuit came to an entirely different conclusion and ruled that a disabled
employee is not automatically granted reassignment to a vacant position. Pam Huber, a dry-
grocery order filler for Wal-Mart Stores, suffered a permanent disability to her arm and hand
and could no longer perform the essential functions of her job. Huber requested
reassignment to a vacant router position, but her request was denied and Wal-Mart instead
hired another applicant for the job, following company policy that the most qualified
applicant for a position be hired. Huber was later reassigned to a janitorial position, with a
pay cut of nearly $7 an hour.
Again, as might be expected, Huber filed a lawsuit against her employer, and using the 10th
Circuits ruling in Smith as precedent, argued that she should have been automatically
reassigned to the stores vacant router position. Wal-Mart used the 7th Circuits
interpretation of "reassignment to a vacant position and cited EEOC v. Humiston Keeling
Inc. (7th Cir. 2000), which stated that a reassignment is not required if a more qualified
applicant has applied for the position. The 8th Circuit adopted the 7th Circuits ruling and
held that a disabled employee is simply given the ability to apply for a vacant position, but is
not guaranteed reassignment to a vacant position. To me (and probably most employers
lawyers), the 8th Circuit decision makes the most sense to employers that want to employ
the most qualified folks for open jobs.
One law, two circuits, two rulings, two different results for employers. Only action by
Congress or the U.S. Supreme Court on this issue will remedy the ZIP code phenomenon of
different results from the same law. Until that happens, employers, corporate counsel and
HR professionals know that "location, location, location" are important guiding principles in
what and how the countrys employment laws apply.
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