[author: Ted Olsen]

A cardinal rule of disability discrimination law has been that an employer must make reasonable accommodations for a disabled employee, so that the individual can perform the essential functions of his or her job, but not for the individual's personal convenience or benefit.  Another cardinal rule in the Tenth Circuit is that, if a disabled employee is unable to perform the essential functions of his or her job, the employee is entitled to transfer into any vacant position for which he or she satisfies the minimum qualifications.  Recently, the Tenth Circuit issued a decision making significant changes to these two rules.  In Sanchez v. Vilsack,[1] the Court ruled that an employer was obligated to transfer a disabled employee into a vacant position, for which she was at least adequately qualified, despite the fact she was already performing the essential functions of her existing position, because the transfer would facilitate her medical treatment.

In Sanchez, a U.S. Forest Service employee in Lufkin, Texas fell down a flight of stairs at work and suffered irreversible brain damage.  The brain injury resulted in a permanent loss of fifty percent of the employee's visual field in each eye.  The employee requested a hardship transfer to the Albuquerque, New Mexico office because Lufkin did not have the specialized therapy she needed to adjust to her condition, because Lufkin lacked public transportation, and because her friends and family were located in Albuquerque.  The request was denied.

Although the employee had some difficulties getting to work and performing her job (for example, she was provided a special office where she could dim the lighting as needed), she performed the essential functions of her job.  When she took a temporary work assignment in Albuquerque, the employees there recommended she not be given the position on a permanent basis.  Eventually, she took the lower position of accounting technician in Albuquerque, with a pay cut, and filed a disability discrimination case under the Rehabilitation Act.

The Court acknowledged that, before this case, the accommodation of a disabled employee by transferring him or her into a vacant position had been limited to situations where the disabled employee was not able to perform the essential functions of his or her existing position.[2]  Reviewing a hodge-podge of decisions of the First, Seventh and Ninth Circuits, and some EEOC regulations that - according to the Court - delineate reasonable accommodations beyond the strict boundaries of a disabled employee's work space, the Court overturned a summary judgment previously awarded to the employer.

The other appellate court decisions relied on by the Tenth Circuit held that reasonable accommodations must be provided to a disabled employee - not only to permit the employee to perform the essential functions of the job - but to allow the employee to have equal enjoyment of employment privileges and benefits, or to pursue therapy or treatment.  The EEOC regulations referred to by the Court have virtually no relevance here - the regulations merely provide for accommodation to permit employees equal enjoyment of employment-related privileges and benefits, and equal access to restrooms and break rooms (these physical areas are not the workplace per se, but obviously closely-related work benefits).  Here, there was no allegation that the plaintiff had been denied employment privileges or benefits.

[2] Smith v. Midland Brake, Inc., 180 F.3d 1154, 1162 (10th Cir. 1999) (transfer is a reasonable accommodation if an employee, "because of disability, can no longer perform the essential functions of the job that she or he has held.").