An Orkin branch office building on May 30, 2020, in Villa Rica, Ga. The 4th U.S. Circuit Court of Appeals partly reversed a grant of summary judgment for the company in an employee’s disability discrimination lawsuit. EyeMark via Getty Images
The U.S. Equal Employment Opportunity Commission (EEOC) and federal courts have long grappled with the intricate application of the Americans with Disabilities Act (ADA), particularly concerning the concept of reassignment as a reasonable accommodation. A recent ruling by the 4th U.S. Circuit Court of Appeals in the case of Dieng v. Orkin Pest Control has once again underscored the critical importance of an employer’s affirmative duty to engage in the interactive process when considering reassignment requests from employees with disabilities. This decision, issued on August 7, 2026, partially reversed a lower court’s grant of summary judgment in favor of Orkin, signaling a potential shift in how such cases are adjudicated and emphasizing the stringent requirements placed upon employers to explore all viable avenues for accommodation before denying an employee their rights.
The core of the dispute centers on whether Orkin adequately fulfilled its obligations under the ADA when an employee, identified as the plaintiff, sought reassignment to a different role due to a disability. The ADA, a landmark piece of legislation enacted in 1990, prohibits discrimination against individuals with disabilities in all aspects of employment. A key provision of the act mandates that employers provide "reasonable accommodations" to qualified individuals with disabilities, unless doing so would impose an "undue hardship" on the employer’s operations. While the ADA lists various forms of reasonable accommodation, including modifications to the work environment or job duties, reassignment to a vacant position has historically been viewed as an "accommodation of last resort." This means it is generally considered only when other forms of accommodation are not feasible or would create an undue hardship.
In Dieng, the district court had initially sided with Orkin, finding that no reasonable accommodation would have enabled the plaintiff to perform the essential functions of his original position as a pest control technician. This ruling, however, failed to adequately consider the broader scope of reassignment as outlined by the ADA and subsequent EEOC guidance. The 4th Circuit, in its review, highlighted a critical oversight: the lower court did not fully explore whether the plaintiff could have performed the essential functions of a different, potentially lower-level, vacant position within Orkin. This distinction is crucial, as the ADA requires employers to consider reassignment to vacant positions, even if they are not equivalent in terms of pay or status, provided the employee is qualified and no equivalent position exists.
The ADA Framework: Reassignment as a Last Resort
The EEOC’s enforcement guidance on reasonable accommodation and undue hardship, frequently referenced in ADA litigation, provides a detailed framework for understanding the reassignment provision. According to this guidance, an employee seeking reassignment must first demonstrate that they are qualified for the vacant position. Crucially, employers are not obligated to create new positions or train employees to become qualified for roles they are not currently suited for. The general principle is that the new position should be vacant and equivalent in terms of pay, status, and other relevant factors. However, if no such equivalent position is available, employers may be required to reassign the employee to a vacant lower-level position.
The Dieng case illustrates the complexities that arise when these principles are applied. The plaintiff in this instance identified two specific roles he believed he could perform despite his disability: a customer service position and a sales representative position. The 4th Circuit’s analysis indicated that the evidence presented supported the plaintiff’s assertions regarding his ability to perform the customer service role. Furthermore, there appeared to be a factual dispute concerning his fitness for the sales role, suggesting that a jury should have had the opportunity to weigh this evidence. The appellate court’s determination that the plaintiff had met his burden under this aspect of the ADA suggests that the lower court’s initial assessment was too narrow in scope.
The Interactive Process: A Non-Negotiable Requirement
Beyond the consideration of specific vacant positions, a central tenet of the Dieng ruling is the employer’s obligation to engage in an "interactive process." This is a mandatory, good-faith dialogue between the employer and the employee to explore potential reasonable accommodations. In this case, the 4th Circuit found that Orkin had failed to adequately participate in this process. The plaintiff had made repeated requests to discuss the possibility of light-duty reassignment, but according to records, his former manager indicated that he "never received a response" from Orkin’s HR department regarding these requests and that the company "never followed up."
This lack of engagement was a significant factor in the appellate court’s decision. The 4th Circuit explicitly stated, "On this record, a reasonable jury could readily conclude that Orkin ignored [the plaintiff’s] repeated requests to return to work in a light-duty position rather than engaging in the interactive process." This finding suggests that an employer’s inaction or failure to respond to accommodation requests can be as detrimental as an outright denial. The interactive process is not merely a procedural formality; it is a substantive requirement designed to ensure that employers diligently explore all reasonable options for accommodating employees with disabilities.
Precedent and Emerging Trends in ADA Litigation
The Dieng decision arrives at a time when courts are continually refining their interpretations of the ADA, particularly concerning reassignment and the boundaries of employer obligations. Orkin’s defense, which suggested that indefinite unpaid leave was a reasonable accommodation given an ongoing dispute over workers’ compensation claims, was rejected by the 4th Circuit. This highlights a growing judicial scrutiny of employers who might attempt to circumvent the interactive process or the duty to explore reassignment by defaulting to extended unpaid leave.
The ruling also provides context by referencing past legal precedents. In 2022, the 8th Circuit Court of Appeals, in a different case, suggested that a reassignment request might be deemed "too difficult and time-consuming to grant," indicating that federal courts do consider the practical limitations on employers on a case-by-case basis. Conversely, a 2021 decision from the 4th Circuit itself characterized reassignment as the "last among equals" among ADA accommodations, emphasizing that employers should not unilaterally reassign employees if other reasonable accommodations are available. These varying interpretations underscore the fact-specific nature of ADA litigation.
Furthermore, the differing judicial approaches to unpaid leave as an accommodation are notable. In May of 2026, the 6th Circuit Court of Appeals ruled that a school district’s decision to place a teacher on unpaid leave for guide dog training, rather than utilizing paid sick leave, did not violate the ADA. The court reasoned that unpaid leave was a suitable accommodation, even if it wasn’t the employee’s preferred option. The Dieng case, however, suggests that unpaid leave may not be a sufficient substitute for exploring reassignment, especially when the employee has actively sought alternative roles and the employer has failed to engage in the required interactive process.
Broader Implications for Employers and Employees
The implications of the Dieng ruling are significant for both employers and employees. For employers, it serves as a stark reminder that a passive approach to disability accommodation is legally perilous. Companies must establish robust internal procedures for handling accommodation requests, ensuring that HR departments and management are well-versed in their obligations under the ADA. This includes promptly responding to all requests, actively participating in the interactive process, and thoroughly documenting all communications and considerations made during this dialogue. Failure to do so can lead to costly litigation and adverse rulings, as seen in this case.
For employees with disabilities, the Dieng decision offers a measure of reassurance. It reinforces the idea that the ADA provides tangible protections and that courts will scrutinize employer actions to ensure compliance. The ruling empowers individuals to advocate for their rights and emphasizes that the interactive process is a two-way street, requiring good-faith participation from both parties. Employees should be encouraged to clearly articulate their needs, explore potential accommodations, and maintain records of their communication with their employers.
While Orkin has declined to comment on the decision, the case’s progression through the appellate courts highlights the ongoing evolution of ADA jurisprudence. The 4th Circuit’s emphasis on the interactive process, coupled with its nuanced approach to reassignment, suggests that employers will continue to be held to a high standard when attempting to navigate the complexities of accommodating employees with disabilities. The ultimate outcome of the Dieng case, now remanded for further proceedings, will likely hinge on the jury’s evaluation of the evidence regarding the plaintiff’s qualifications for the identified positions and Orkin’s conduct throughout the accommodation process. This decision will undoubtedly serve as a critical reference point for future ADA disputes, particularly those involving reassignment and the fundamental duty of employers to engage meaningfully with their employees. The legal landscape surrounding disability accommodation is dynamic, and rulings like Dieng are instrumental in shaping best practices and ensuring that the principles of the ADA are effectively realized in the workplace.
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