Mandatory reassignment under the ADA: the circuit split and need for a socio-political understanding of disability.

Stewart, and the other Cornell Law Review editors and associates for all of their hard work and invaluable feedback. Standing at the top of the courthouse steps and telling a litigant who uses a wheelchair, "You may come in, " is a disingenuous statement of equal opportunity. Explaining to [a] deaf person that his right to participate in a trial has been met by virtue of his physical presence in the courtroom when the proceedings have been conducted in spoken English and without a sign language interpreter does not constitute meaningful access to a fundamental right. 1 INTRODUCTION Congress enacted the Americans with Disabilities Act of 1990 (ADA) to integrate the disabled population into "all aspects of Ameri-can life." 2 The ADA drafters strove for equality in "employment opportunities , government services, public accommodations, transportation, and telecommunications." 3 Though it built on prior civil rights laws, the ADA was unique because it was not merely an antidiscrimination statute; the ADA required covered entities to take affirmative steps to accommodate the disabled in certain contexts. In the employment context, the ADA required employers to make reasonable accommodations for the known physical or mental disabilities of otherwise qualified employees unless such accommodations would impose undue hardships. 4 Reasonable accommodations may include, inter alia, job restructuring, part-time or modified work schedules, and reassignment to vacant positions. MANDATORY REASSIGNMENT UNDER THE ADA 445 As suggested by the opening quote from Professor Laura Rovner, courts have recognized that physical or communicative accommoda-tions are needed to protect the rights of disabled individuals. 6 Today most employers provide auxiliary aids and services or modify policies, practices, and procedures to accommodate disabled employees. 7 However, some employers remain reluctant to reassign employees who become disabled to vacant positions, and the courts have not yet uniformly required employers to do so. holding that the ADA does not require an employer to reassign a qualified disabled employee to another position when the employer can fill the vacant position with a more qualified employee. On July 18, 2007, the Eighth Circuit denied the petition of the employee , Ms. Huber, to rehear the case en banc. The U.S. Supreme Court initially granted certiorari in the Huber case, but ultimately dismissed the writ after the parties settled the dispute. 9 With the Huber decision, the Eighth Circuit joined a circuit split: must an employer reassign a disabled employee to a vacant position …