Most employers are familiar with the Americans with Disabilities Act’s requirement to accommodate disabled employees.  This accommodation can take the form of a temporary or permanent reassignment to a different, vacant position.  Although the Act contemplates such a reassignment, it does not clarify whether a vacant position includes one currently occupied by a temporary worker.  In Duvall v. Georgia-Pacific Consumer Products LP, the Tenth Circuit defined a “vacant position” under the ADA to include only those positions also available to similarly situated non-disabled employees. 

 After the plaintiff’s disability rendered him unable to work around paper dust in its paper mill, Georgia-Pacific (“GP”) placed him on leave while it searched for a position he could safely perform.  Plaintiff claimed that he should have been offered one of the temporary jobs staffed by third-party temporary workers in either the mill’s shipping department or the storeroom.  GP ultimately found the plaintiff a permanent position in the mill’s storeroom, which he accepted.

 The plaintiff nevertheless filed suit against GP, claiming that while the company endeavored to find him a permanent position, he should have been awarded one of the temporary positions, displacing a temporary worker from a third-party staffing agency.  The Eastern District of Oklahoma disagreed, finding instead that GP treated the plaintiff appropriately because the plaintiff failed to identify any vacant positions denied him.  The Tenth Circuit affirmed the decision, defining vacant positions as only those available to similarly situated non-disabled employees.  Kilpatrick Stockton’s Randall D. Avram and Sabrina P. Rockoff represented GP before both courts.