AUGUST 2025 | 53 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. the inquiry does not stop there. The employer may be required to offer the employee with a disability reassignment to a vacant position.48 A “vacant position” includes not only positions that are at the moment vacant but also positions the employer reasonably anticipates will become vacant in the fairly immediate future.49 However, a “vacant position” does not include a promotion.50 Remember that the ADA requires an employer to make reasonable accommodations to an “otherwise qualified employee with a disability.”51 The term “qualified” means the “individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.”52 In Smith v. Midland Brake, Inc., the 10th Circuit held that a “reasonable accommodation” under the ADA may include reassignment from the employee’s current job to a “vacant position” for which the employee can perform the essential functions of with or without accommodation.53 To determine whether reassignment is a reasonable accommodation, the employer and employee may be required to engage in the same interactive process that applied to the position the employee held at the time they sought accommodation.54 CONCLUSION This article certainly does not address every issue relevant to ADA litigation. Many issues – such as how to identify an “essential function” or rebut a claim of “undue hardship” – are worthy of their own articles. However, I hope the article does provide some guidance in navigating the less-thanclear accommodation process. ABOUT THE AUTHOR Amber L. Hurst is the current president of the Oklahoma Employment Lawyers Association, the Oklahoma affiliate leader to the National Employment Lawyers Association and the past chair and vice chair of the OBA Labor and Employment Law Section. Ms. Hurst is admitted to practice in Oklahoma; the federal courts for the Western, Eastern and Northern districts of Oklahoma; the 10th Circuit Court of Appeals; the U.S. Court of Federal Claims; and the United States Supreme Court. ENDNOTES 1. See, e.g., Merriam-Webster Dictionary, defining “discriminate” as “to mark or perceive the distinguishing or peculiar features of,” to “distinguish” or “differentiate,” and “to distinguish by discerning or exposing differences.” www.merriam-webster.com/dictionary/discriminate; see also Black’s Law Dictionary (11th ed. 2019), defining “discrimination” as “differential treatment.” 2. 42 U.S.C. §12112(b)(5)(A). 3. Exby-Stolley v. Bd. of Cty. Comm’rs, 979 F.3d 784, 795 (10th Cir. 2020), emphasis in original. 4. 42 U.S.C. §12112)(a) (“No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”) (emphasis supplied). 5. 42 U.S.C. §12112(b)(5)(A), emphasis added. 6. 29 C.F.R. §1630.2(G)(1), (2). 7. 29 C.F.R. §1630.2(g)(3). 8. 29 C.F.R. §1630.2(g)(1), (2). 9. 29 C.F.R. §1630.2(g)(3). 10. §1630.2(g)(1)(i). 11. §1630.2(g)(1)(ii). 12. 29 C.F.R. §§1630.2(g)(3) and (k)(3). 13. Punt v. Kelly Servs., 862 F.3d 1040, 1048 (10th Cir. 2017). 14. Id. 15. Exby-Stolley, 979 F.3d at 795, emphasis in original. 16. Smith v. Midland Brake, Inc., 180 F.3d 1154, 1178 n.12 (10th Cir. 1999), explaining. 17. Exby-Stolley, 979 F.3d at 798. 18. Punt, 862 F.3d at 1048. 19. Exby-Stolley, 979 F.3d at 798-99. 20. Id. at 799, emphasis in original. 21. Gossett v. Okla. ex rel. Bd. of Regents for Langston Univ., 245 F.3d 1172, 1176 (10th Cir. 2001). 22. Id. 23. Smothers v. Solvay Chems., Inc., 740 F.3d 530, 539 (10th Cir. 2014). 24. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 n.8, 101 S. Ct. 1089, 1094 (1981). 25. Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1204 (10th Cir. 2018); see also Smith, 180 F.3d 1154 at 1178 n.12, explaining the purpose of the modified framework. 26. See 42 U.S.C. §12111(b)(5)(A) (“the term ‘discriminate’ includes ... not making reasonable accommodations.”). 27. Emphasis in original. 28. Id. 29. Id. 30. See Exby-Stolley, 979 F.3d at 798. 31. Emphasis in original. 32. 42 U.S.C. §12112(b)(5)(A). 33. 29 C.F.R. §1630.2(o)(3); Aubrey v. Koppes, 975 F.3d 995, 1009 (10th Cir. 2020); EEOC v. C.R. Eng., Inc., 644 F.3d 1028, 1049 (10th Cir. 2011). 34. Aubrey, 975 at 1006-07. 35. Id. at 1007. 36. Id. 37. Id. 38. 29 C.F.R. §1630.2(o)(3). 39. Aubrey, 975 F.3d at 1007. 40. 42 U.S.C. §12112(b)(5)(A). 41. 42 U.S.C. §12111(8). 42. Wilkerson v. Shinseki, 606 F.3d 1256, 1265 (10th Cir. 2010). 43. C.R. Eng., Inc., 644 F.3d at 1049. 44. Id. 45. Foster v. Mt. Coal Co., LLC, 830 F.3d 1178, 1188 (10th Cir. 2016). 46. Id. 47. Norwood v. UPS, 57 F.4th 779, 787-88 (10th Cir. 2023). 48. Midland Brake, Inc., 180 F.3d at 1154. 49. Smith, 180 F.3d at 1175. 50. Id. 51. 42 U.S.C. §12112(b)(5)(A). 52. 29 C.F.R. §1630.2(m). 53. 180 F.3d 1154 (10th Cir. 1999). 54. Id.
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