Almost 2 years ago, a three-judge panel of the 10th U.S. Circuit Court of Appeals (which covers Kansas employers) had ruled employees can’t sue the employer for failing to provide a reasonable accommodation under the Americans with Disabilities Act (ADA) unless they can prove some additional adverse employment action. The full 10th Circuit recently revisited the ruling, however, and, in a 7-5 split, rejected the adverse-action element.
Facts
Laurie Exby-Stolley, a county health inspector in Colorado, sued her employer for disability discrimination on the grounds it had failed to provide her with a reasonable accommodation. At trial, the judge instructed the jury that she couldn’t prevail on the failure-to-accommodate claim unless she also proved she suffered an “adverse employment action.”
Exby-Stolley lost the trial but appealed the jury instruction, which the 10th Circuit panel affirmed (2-1). She then appealed to the full court.
ADA Language in Dispute
The 10th Circuit was asked to determine whether the ADA requires an “adverse employment action” element in the failure-to-accommodate context. The dispute turns on the statute’s language, which reads:
(a) No covered entity shall discriminate against a qualified individual on the basis of disability 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.
(b) As used in [subsection (a)], the term “discriminate against a qualified individual on the basis of disability” includes . . . not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee. 42 U.S.C. § 12112.
The trial court and the original 10th Circuit panel read Section 12112(a) to include two distinct elements: discrimination (1) “on the basis of disability” and (2) “in regard to” a term, condition, or privilege of employment (also known as an “adverse employment action”). The panel agreed Exby-Stolley had to prove the adverse employment action element, so the trial court’s jury instruction was correct.
10th Circuit’s Ruling
On review by the full 10th Circuit, the seven-judge majority gave five reasons for rejecting the panel’s interpretation and reversing judgment for the county, none of which was based on the statute’s language:
First, the full court said its “controlling precedent” set forth the elements of a prima facie (or minimally sufficient) failure-to-accommodate claim and never included any adverse impact element.
Second, the court majority distinguished the “inherent nature” of failure-to-accommodate claims from disparate treatment claims, pointing out the former turn on an employer’s inaction while the latter turn on its action with discriminatory intent.
The majority concluded “it would verge on the illogical to require failure-to-accommodate plaintiffs to establish that their employer acted adversely toward them—when the fundamental nature of the claim is that the employer failed to act.”
Third, the majority explained the ADA’s purpose would be frustrated if the statute was read in a way that didn’t protect all qualified individuals with disabilities, including those who weren’t accommodated but who suffered no adverse employment action.
Fourth, the majority pointed out its interpretation was consistent with guidance from the Equal Employment Opportunity Commission (EEOC), the federal agency charged with administering the ADA. Like the court’s precedent, the EEOC guidance discussed failure-to-accommodate claims without ever mentioning any “adverse employment action” element.
Fifth, the majority underscored that “none of our sister circuits has regularly incorporated an adverse-employment-action requirement into an ADA failure-to-accommodate claim.” The dissent criticized the majority for glossing over several contrary circuit court opinions that “reveal a decidedly muddier picture than the majority portrays.”
After citing the five reasons for rejecting the adverse action requirement, the 10th Circuit majority then provided a textual argument to support its decision. It explained the examples of conduct enumerated in Section 12112(b), including a failure to accommodate, should be viewed as types of behavior prohibited by Section 12112(a)—not just as examples of conduct satisfying the first element of that section. In other words, a failure to accommodate, by its very nature, is “in regard to” the terms, conditions, and privileges of employment.
The majority explained it would be permissible (but redundant and therefore unnecessary) for a court to include the “in regard to” language from the statute in a jury instruction. But it emphatically rejected the use of the shorthand phrase “adverse employment action” in an instruction because that term, which requires a “significant change in employment status,” isn’t synonymous with the much broader “in regards to” language.
Notwithstanding the contrary views on how to read Section 12112, the ultimate standard an employee must prove under the majority and dissenting opinions might not be that far apart. The dissent concedes “adverse employment action” is a label that sometimes has been “inappropriately limited” to tangible actions with economic cost to the complaining individual.
Bottom Line
More than 30 years after the ADA’s enactment, courts are still struggling to define the elements of a failure-to-accommodate claim. In the end, the majority opinion is now binding precedent for litigants in the 10th Circuit, which also covers Colorado, New Mexico, Oklahoma, Utah, and Wyoming.
The U.S. Supreme Court might one day provide further guidance on the issue. Until then, employees in the 10th Circuit aren’t required to separately prove an adverse employment action as part of an ADA failure-to-accommodate claim.
Charles McClellan is an employment law partner with Foulston Siefkin LLP in Wichita, Kansas. You can reach him at cmcclellan@foulston.com.