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Tenth Circuit Rules on Temporary Workers

By Margaret Parnell Hogan and Stephanie L. Hankin
August 22, 2010

In a case of first impression, the U.S. Court of Appeals for the Tenth Circuit recently considered whether positions filled by temporary contract workers are “vacant” for purposes of reassignment as a reasonable accommodation under the Americans with Disabilities Act (ADA). In Duvall v. Georgia-Pacific Consumer Products, L.P., No. 08-7096 (June 9, 2010), the court held that, because similarly situated nondisabled employees could not apply for or obtain positions filled by temporary contract employees, the employer was not obligated to reassign a disabled employee to such non-vacant positions.

Tenth Circuit Law on Reassignment Under the ADA: A Refresher

In Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999), the Tenth Circuit determined that an employer's duty to reassign disabled employees to vacant positions is mandatory under the ADA. Under Midland Brake, if a disabled employee can be accommodated by reassignment to a vacant position, the employer must do more than merely consider the employee alongside other applicants for that position. Instead, the employer must offer the employee the vacant position.

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