Employment: Considering A Reassignment - What is a Vacant Position?


In Duvall v. Georgia Pacific, the Tenth Circuit Court of Appeals, which governs Oklahoma, clarified an employer's duties under the ADA requiring reasonable accommodations for disabled employees.

Mr. Duvall suffered from cystic fibrosis. He sought to be reassigned to a previous job in the paper mill's shipping department. However, the position was occupied by a temporary contract worker pending the mill's outsourcing of its shipping. Mr. Duvall sued Georgia Pacific under the Americans with Disabilities Act for refusing his request. The ADA prohibits employers from discriminating against a qualified individual on the basis of disability with regards to the terms, conditions, and privileges of employment. Within its definition of discrimination, the ADA includes not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability, including reassignment to a vacant position.

The Tenth Circuit has imposed a duty on employers to reassign qualified employees with a disability to vacant positions as long as the accommodation is reasonable. The duty requires employers to offer the employee the vacant position, not merely consider the employee alongside other applicants. In the case brought by Mr. Duvall, the Tenth Circuit further clarified an employer's duty by defining the term "vacant" under the ADA.

The Court held that a position is "vacant" with respect to a qualified employee with a disability if it would be available for a similarly-situated employee without a disability to apply for and obtain. Employers are not required to create new positions specifically to accommodate employees with a disability. The Tenth Circuit's decision only requires employers to treat employees with disabilities the same as other employees with regards to reassignment.

Because the position Mr. Duvall sought was not open to other employees, it was not a "vacant" position to which Georgia Pacific could assign him.

By Kenneth T. Short, kshort@dsda.com

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Rebecca D. Bullard

Rebecca D. Bullard

Rebecca represents clients primarily in labor and employment litigation and counsels clients regarding everyday employment matters. 

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