Wednesday, August 4, 2010

Tenth Circuit decides when a position is vacant under the ADA
Dechert LLP
USA July 22 2010

The U.S. Court of Appeals for the Tenth Circuit recently became the first federal court of appeals to address the definition of the term “vacant” under the Americans with Disabilities Act (ADA). In Duvall v. Georgia-Pacific Consumer Products, L.P., the court ruled that an em-ployer will not be obligated to reassign a disabled employee to a position currently filled by a temporary worker as a reasonable accommodation because such positions are not considered vacant for purposes of the ADA. According to the Duvall court, a position is considered vacant for purposes of the Act only “if it would be available for a similarly-situated non-disabled employee to apply for and obtain.”
Under the ADA, an employer is expected to make “reasonable accommodations” to enable a qualified individual with a disability to perform the “essential functions of the employment position that such individ-ual holds or desires.” 42 U.S.C. § 12111(8). The failure to make such reasonable accommodations constitutes discrimination under the Act. One such reasonable accommodation that an employer would be expected to make for such an otherwise qualified individual with a disability is “reassignment to a vacant position.” 42 U.S.C. § 12111(9)(B). Prior to Duvall, neither the Supreme Court nor any federal appellate court had provided a precise definition of the term.
The facts of the case that gave rise to this decision involved a company using temporary workers as part of a change in operations at a plant, and a disabled employee who coveted one of the spots occupied by a temporary worker. Georgia-Pacific, a large paper-products manufacturer, employed Travis Duvall in the shipping department at one of its paper mills. The company decided to outsource the operation of that department, retaining only a limited-number of employ-ees to move pallets using Georgia-Pacific machinery. In an effort to minimize the impact on Georgia-Pacific employees working in shipping, and to avoid necessitat-ing abrupt transitions or mass layoffs, it began replac-ing employees with temporary workers as employees moved to other departments or left the company. Once all of the Georgia-Pacific employees had moved out of the shipping department, the company planned to turn over operations of the department to the outsourcing firm.

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