Tenth Circuit Holds that Failure-To-Accommodate Claims Require Adverse Employment Action

On October 11, the Tenth Circuit held that a failure-to-accommodate claim under the Americans with Disabilities Act (“ADA”) requires a showing of an adverse employment action, cementing a circuit split and making the issue ripe for U.S. Supreme Court review.

In Exby-Stolley v. Board of County Commissioners, 906 F.3d 900 (10th Cir. 2018), Plaintiff broke her arm, permanently preventing her from effectively performing her former duties as a health inspector.  The County denied Plaintiff’s request to create a new position and assigned Plaintiff to a temporary part-time office job.  Plaintiff alleged that the County rejected all of her proposed accommodations and that, after meeting with a physician regarding her permanent restrictions, her supervisor asked her if she wanted help writing her resignation letter. The County’s HR analyst testified, however, that she viewed the meeting as part of the interactive process and intended to continue looking for reasonable accommodations.  But soon thereafter, Plaintiff resigned and filed an ADA failure-to-accommodate claim.

In the district court, a jury delivered a verdict in favor of the County, finding that Plaintiff had not shown an adverse employment action.  The Tenth Circuit affirmed, holding that a plaintiff must prove that she was subject to an adverse employment action in order to state a discrimination claim under the ADA.  The Court pointed to language in 42 U.S.C. § 12112(a) that requires that the employer’s failure to accommodate affect the employee “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.” In further support of its holding, the Court noted that federal courts often read a requirement of “adverse employment action” into the ADA that is akin to Title VII’s requirement that the discrimination be “with respect to [an individual’s] compensation, terms, conditions, or privileges of employment.”

The Tenth Circuit noted that some sister circuits have disagreed, but opined that those courts reached the wrong conclusion based on an erroneous interpretation of the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) that is regularly used to evaluate discrimination claims under Title VII.  The Court explained that, although the McDonnell Douglas framework must be modified in failure-to-accommodate cases because the ADA claim does not require proof of either discriminatory intent or disparate impact, the framework’s requirement that the plaintiff prove (as part of her prima facie case) that she suffered an adverse employment action still applies because “not every discriminatory act by an employer entitles an employee to redress under the employment-discrimination statutes. The discriminatory act must be in regard to, or with respect to, the terms or conditions of employment.”  Reiterating that “a mere inconvenience or alteration of job responsibilities” does not suffice to show an adverse employment action, the Court stated that it was “not willing to say in these circumstances that an employer’s failure to immediately accommodate a request by a disabled employee is in itself an adverse employment action.”

This issue is expected to go to the Supreme Court, as the ruling cements a circuit split between at least the Fifth and Seventh Circuits on the one hand, and the Tenth Circuit on the other. As always, we will keep you updated.