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
Published Aug. 7, 2026
The Fourth U.S. Circuit Court of Appeals has partially reversed a district court’s grant of summary judgment in favor of Orkin, reviving a disability discrimination lawsuit filed by a former employee who alleged the pest control company failed to reasonably accommodate his disability. The appellate court’s decision underscores the persistent complexities employers face in administering reassignment as an "accommodation of last resort" under the Americans with Disabilities Act (ADA), particularly when interactive processes falter.
The case, Dieng v. Orkin, centers on an employee who, after sustaining a disability, sought to transition to a less physically demanding role within the company. While the district court initially sided with Orkin, finding no reasonable accommodation would have allowed the plaintiff to perform the essential functions of his original pest control technician position, the Fourth Circuit found this analysis incomplete. The appeals court remanded the case, ruling that the lower court failed to adequately consider whether the employee could have performed the essential functions of a vacant, lower-level position he had identified and expressed interest in.
This ruling highlights a critical nuance in ADA accommodation law: reassignment is indeed a last resort, but it is a resort that employers must seriously explore when other accommodations are exhausted or pose an undue hardship. The Equal Employment Opportunity Commission (EEOC) has consistently maintained that reassignment is an option only when an employee cannot perform the essential functions of their current job, even with reasonable accommodations, and when no other effective accommodations are feasible.
The "Accommodation of Last Resort" Doctrine Under the ADA
The ADA mandates that employers provide reasonable accommodations to qualified individuals with disabilities, enabling them to perform the essential functions of their jobs. However, the concept of "reasonable accommodation" is broad and can encompass a variety of adjustments, from modifying work schedules and providing assistive devices to reassigning employees to vacant positions.
Reassignment, specifically, is viewed by enforcement agencies and many courts as the "accommodation of last resort." This means employers are generally not obligated to create new positions or bump existing employees to make room for a disabled worker. Instead, the focus is on vacant positions that the employee is qualified to perform. The EEOC’s enforcement guidance clarifies that an employee must be qualified for the reassigned position and that employers are not required to train an employee to become qualified for a new role. Generally, the reassignment must be to an equivalent vacant position in terms of pay, status, and other relevant factors. If no equivalent vacant position exists, reassignment to a vacant lower-level position may be permissible.
The Dieng case illustrates the challenge employers face in navigating this hierarchy of accommodations. The plaintiff in Dieng had identified specific vacant roles – a customer service position and a sales representative position – that he believed he could perform despite his disability. The Fourth Circuit noted that the record supported his assertions, with his former manager even acknowledging that the plaintiff could have at least performed the customer service role. While a factual dispute existed regarding his suitability for the sales role, the appellate court found that the plaintiff had met his burden of demonstrating a potential path to reassignment under the ADA.
Orkin’s Defense and the Interactive Process
Orkin’s defense strategy appears to have focused on two main points: that it was not obligated to provide the specific reassignment requested and that placing the employee on indefinite unpaid leave was a reasonable response given ongoing disputes over workers’ compensation claims. However, the Fourth Circuit found these arguments insufficient.
A significant failing identified by the appellate court was Orkin’s apparent lack of engagement in the interactive process. This process is a crucial, informal dialogue between an employer and an employee with a disability to identify potential accommodations. The plaintiff repeatedly requested to discuss the possibility of light-duty reassignment, but the court noted that his manager reported never receiving a response from Orkin’s HR department and that no follow-up occurred.
The Fourth Circuit 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 failure to engage in good-faith dialogue is often a critical factor in ADA litigation, as it can demonstrate an employer’s unwillingness to explore potential solutions.
Broader Implications and Precedents
The Dieng decision arrives at a time when courts continue to grapple with the application of reassignment and unpaid leave as ADA accommodations, leading to varied outcomes.
In 2022, the Eighth Circuit, for instance, held in one case that an employee’s request for reassignment was "too difficult and time consuming to grant." This suggests that federal courts may, on a case-by-case basis, recognize limitations on the extent to which employers must accommodate reassignment requests, particularly if they impose significant burdens.
Conversely, a 2021 Fourth Circuit ruling had previously characterized reassignment as the "last among equals" among ADA accommodations, emphasizing that employers cannot unilaterally reassign employees if another reasonable accommodation already exists. This reinforces the idea that reassignment is a fallback option, not a primary one.
The reasonableness of unpaid leave as an accommodation has also seen differing judicial interpretations. In May of the current year, the Sixth Circuit ruled that a school district’s decision to place a teacher on unpaid leave for guide dog training, rather than paid sick leave, did not violate the ADA. The court reasoned that unpaid leave was a suitable accommodation, even if it wasn’t the plaintiff’s preferred option. This contrasts with situations where indefinite unpaid leave might be seen as a failure to accommodate if other avenues were not fully explored.
The Orkin case adds another layer to this evolving legal landscape. It underscores that while reassignment is a last resort, employers cannot simply dismiss such requests. They must demonstrate a genuine effort to engage in the interactive process and explore the feasibility of placing an employee in a vacant role, even a lower-level one, if it allows them to perform essential functions. The failure to do so, as seen in Dieng, can lead to prolonged litigation and potential liability.
Orkin declined to comment on the ruling. The case will now return to the district court for further proceedings, where a jury will ultimately decide whether Orkin’s actions constituted unlawful disability discrimination. This outcome serves as a potent reminder for employers to diligently adhere to ADA requirements, particularly regarding the critical interactive process and the exploration of all potential reasonable accommodations.
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