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Not So Fast: Tenth Circuit Says Employees Must Show They Suffered an Adverse Employment Action to Succeed on a Failure to Accommodate Claim Under the ADA

Published by and on December 27, 2018

The Tenth Circuit clarified that demonstrating that an employer failed to accommodate a disability, standing alone, is not sufficient to succeed on a claim under the Americans with Disabilities Act.

In Laurei Exby-Stolley v. Board of County Commissioners, the Tenth Circuit clarified that demonstrating that an employer failed to accommodate a disability, standing alone, is not sufficient to succeed on a claim under the Americans with Disabilities Act (ADA). Rather, an employee must also have suffered an adverse employment action.

Plaintiff sued her previous employer—the Board of County Commissioners of Weld County, Colorado (the County)—under the ADA, alleging that the County had failed to accommodate her disability, which resulted in the loss of her job. After trial, the jury returned a verdict in favor of the County. Plaintiff appealed, alleging the district court improperly instructed the jury that she needed to prove that she suffered an adverse employment action in order to succeed on her failure to-accommodate claim.

On appeal, the Tenth Circuit held (with one judge dissenting) that the district court did not err in its instruction as an adverse employment action is an element of a failure-to-accommodate claim. In reaching this conclusion, the Court first analyzed the statutory language of the ADA and noted that to state a claim under the ADA, any discrimination must be “in regard to” certain terms and conditions of employment, i.e. an adverse employment action. Accordingly, while failure to accommodate is listed as an example of discrimination under the ADA, showing only discrimination on the basis of a disability (without establishing the discrimination affects the terms and conditions of employment) is insufficient.

The Court then went on to analyze how the McDonnell Douglas framework must be modified in a failure-to-accommodate context. McDonnell Douglas sets out the framework a protected class member utilizes to establish discrimination based on the failure to treat plaintiff as well as those outside the protected class. Conversely, the ADA does not require disabled individuals to show that they are treated worse than abled ones (since a failure-to-accommodate is in and of itself defined as “discrimination”). Because a discriminatory motive or intent is not required in failure to accommodate claims (i.e., it does not matter what the employer’s intention was in failing to accommodate an employee), courts do not need to use the McDonnell Douglas framework to establish discriminatory motive, as is required in other discrimination claims.

This unique aspect of failure-to-accommodate claims does not relieve a plaintiff of having to prove other aspects of the McDonnel Douglas framework, including the requirement that the employee have suffered an adverse employment action. The Court went on to analyze prior Tenth Circuit cases cited by the dissent. The Court noted the adverse-employment-action element was not in question in these prior cases, and therefore, any commentary on the issue was non-binding dictum, which the Court was not required to follow as precedent. Similarly, the Court held that even though some other circuits did not state an adverse-employment-action requirement as an element of a failure to accommodate claim, whether there was an adverse employment action was not at issue in these cases (accordingly, any commentary on the issue would again be non-binding dicta).

Finally, the Court rejected the plaintiff’s contention that any failure to accommodate constituted an adverse employment action. The Court noted that there could be a failure to accommodate that does not result in termination and does not otherwise lead to an adverse employment action – for example, one that merely creates an inconvenience. The jury verdict in favor of the County was therefore affirmed by the Court.

Welter Insight

The Tenth Circuit’s clarification that an employee must show they suffered an adverse employment action in a failure to accommodate claim provides an important defense to employers, especially in cases where an employee is alleging merely that the employee failed to provide accommodation (but do not indicate that they suffered an adverse action). Employers should be aware that not all jurisdictions have directly ruled on the issue (or have suggested a contrary holding). Engaging in the interactive process in good faith to evaluate requests for reasonable accommodation is always the best approach.

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