The Tenth Circuit Court of Appeals recently ruled that a job position was not “vacant” for purposes of the reasonable accommodation analysis under the Americans with Disabilities Act (“ADA”), where the position was already filled by a temporary worker and would eventually be outsourced.
In Duvall v. Georgia Pacific Consumer Products (10th Cir., June 9, 2010), the plaintiff suffered from cystic fybrosis and worked in the shipping department of Geogia Pacific (“GP”). When GP began outsourcing work from its shipping department, the plaintiff transferred to the converting department in the company. Unfortunately for the plaintiff, the converting department involved converting raw rolls of newly-fabricated paper into finished product (such as napkins), and as a result, the air in the converting department had a significant amount of paper dust.
The dust in the converting department took a major toll on the plaintiff’s health, and he asked to be transferred back to his former position as a reasonable accommodation under the ADA. GP refused this accommodation, stating that his former position was not vacant. The plaintiff then filed a lawsuit under the ADA.
In addressing the plaintiff’s claims, the court first noted that “[i]f a disabled employee can be accommodated to a vacant position . . . the employer must offer the employee the vacant position.” The court also noted, however, that the job must indeed be “vacant,” and that the term “vacant” had not yet been defined by the federal courts. The court further noted that the Equal Employment Opportunity Commission has provided: “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 then concluded that “a position is ‘vacant’ with respect to a disabled employee for the purposes of the ADA if it would be available for a similarly-situated non-disabled employee to apply for and obtain.” Based on this conclusion, the court ruled that the job position at issue in this case was not “vacant.” Therefore, GP did not violate the ADA by refusing to offer the position to the plaintiff.