Tenth Circuit Defines “Vacant” Employment Positions Under the ADA

By Dan Combs

In a case of first impression for any circuit court in the nation, the Tenth Circuit Court of Appeals, which covers Colorado, recently defined when a position is "vacant" for purposes of accommodating a disabled employee under the Americans with Disabilities Act ("ADA").  Duvall v. Georgia-Pacific Consumer Products, L.P., No. 08-7096 (10th Cir. June 9, 2010).  As explained below, the Duvall decision highlights the practical benefits of maintaining well-structured hiring and transfer policies.

The ADA requires employers to make "reasonable accommodations" to the known physical or mental limitations of disabled individuals.  In some circumstances, this may require reassigning a disabled employee to a vacant position.

In those situations where an employer has a duty to reassign a disabled employee into a vacant position, however, the duty is not without limit.  For instance, (1) the ADA does not require an employer to create a new job for the purpose of reassignment; (2) the ADA does not require an employer to promote an employee in making a reassignment; (3) the reassignment need not contravene the employer's legitimate business interests; and (4) the position that the disabled employee seeks must, in fact, be vacant.

In the recent Duvall decision, the Tenth Circuit held that a position is "vacant" for purposes of accommodating a disabled employee if the position "would be available for a similarly-situated non-disabled employee to apply for and obtain."  In Duvall, the job position into which the disabled plaintiff claimed he should have been reassigned was found "not vacant" because it was filled by a contract employee.  Thus, from the perspective of similarly-situated, non-disabled employees, the position was not available.

Although disabled persons, under the ADA, are entitled to both non-discriminatory treatment and "reasonable accommodation," the Court in Duvall made comments suggesting that the latter is actually a means of providing the former.  "Congress' purpose in passing [the ADA] was to place disabled employees on an equal footing with their non-disabled coworkers. . . . [E]mployers are not required to modify the essential functions of a position in order to accommodate a disabled employee."  The Court additionally emphasized that the ADA is an antidiscrimination statute, not a "mandatory preference statute."

Prudent employers seeking to take full advantage of the decision should take steps to structure their hiring and transfer policies to ensure that no applicant or employee can be hired or transferred into a position unless the position has been posted in some public fashion as being "vacant."  The position should be posted as available to candidates within the organization, and if appropriate, outside the organization.  By contrast, if an employer has a practice of informally transferring and hiring people into positions that have not been announced as open and available, the employer could be inundated with requests for accommodation into virtually all positions that, in fact, are not available for any employee to fill.  Moreover, an employer may find it very difficult to disprove a plaintiff's contention that a particular position was "vacant," if the employer does not have a system that visibly and clearly distinguishes between those positions that are and are not available.

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©2010 Sherman & Howard L.L.C.                                                        July 7, 2010