Wednesday, July 14, 2010

Disabled Worker Not Entitled to Position Held by Temp Worker Under the ADA's Reasonable Accomodation Section

The Court of Appeals for the Tenth Circuit has ruled that the duty to reasonably accommodate a disabled employee under the Americans with Disabilities Act did not require an employer to reassign the employee to a position filled by a temporary-contract worker because that position was not “vacant,” as the ADA contemplates, the federal appeals court in Denver has held. The Court further held that a “vacant” position under the ADA is one that would be available for a similarly-situated non-disabled employee to apply for and obtain.

In addressing the issue of what the definition of "vacant" is, the Court, just like the Eighth Circuit did in the case I mentioned earlier, rejected use of the EEOC's interpretation in their guide, "Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act." The EEOC's definition in that guide is: “vacant” means “that the position is available when the employee asks for reasonable accommodation, or that the employer knows that it will become available within a reasonable amount of time.” The Court found this definition tautological and therefore unhelpful in answering the question presented in Duvall, however, because “asking whether a position filled by a temporary employee is ‘available’ is no different . . . from asking whether it is ‘vacant.’”

In defending their interpretation of the term "vacant," the Court stated that to interpret the term in any other way would “run the risk” of transforming the ADA from a non-discrimination statute into a “mandatory preference statute.”

The case is Duvall v. Georgia-Pacific Consumer Products, L.P., No. 08-7096 (10th Cir. June 9, 2010).

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