Plaintiffs bringing failure-to-accommodate claims under the Americans With Disabilities Act (“ADA”) must prove they suffered an adverse employment action such as a termination, demotion, or decrease in pay, under a recent Tenth Circuit Court of Appeals decision.FN1
In Exby-Stolley v. Bd. of County Commissioners, Weld County, Colorado, the Tenth Circuit held that, in the absence of an adverse action such as a firing or demotion, an employer’s failure to accommodate a disabled employee’s restrictions is not unlawful. The court looked to the plain language of the ADA, which requires that a disabled employee prove (among other things), that she (1) suffered discrimination such as a failure to accommodate, and (2) that the discrimination or failure to accommodate concerned or affected her “hiring, advancement, . . . discharge, . . . compensation, . . . or other terms, conditions, and privileges of employment.”FN2 Whether an adverse action occurred in a given case is a heavily fact-specific question. However, mere inconveniences or alterations of job responsibilities do not rise to the level of an adverse employment action.FN3
The Exby-Stolley decision does not impact the typical ADA failure-to-accommodate claim—i.e., where an employee claims she was fired or was forced to quit because she could not perform the essential functions of her job. However, under the decision, employers who actively and continually engage in the interactive process generally should not be held liable for a failure to accommodate merely because the employer does not immediately accommodate an employee or where the employee continues to work (without changes to the terms and conditions of her employment), despite the fact the accommodation sought by the plaintiff is not provided.FN4
FN1: Exby-Stolley v. Bd. of Cty. Commissioners, Weld Cty., Colorado, No. 16-1412, 2018 WL 4926197 (10th Cir. Oct. 11, 2018) (https://www.ca10.uscourts.gov/opinions/16/16-1412.pdf). The Tenth Circuit Court of Appeals hears appeals from federal courts in Colorado, Kansas, Oklahoma, Utah, Wyoming. The Exby-Stolley decision adds the Tenth Circuit to the growing list of federal circuits expressly requiring proof of an adverse employment action in failure-to-accommodate cases. See Colon-Fontanez v. Municipality of San Juan, 660 F.3d 17, 32 (1st Cir. 2011); Parker v. Sony Pictures Entm't, Inc., 260 F.3d 100, 108 (2d Cir. 2001); Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1032 (7th Cir. 1999); Fenney v. Dakota, Minn. & E. R.R. Co., 327 F.3d 707, 711 (8th Cir. 2003); Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012); Marshall v. Fed. Exp. Corp., 130 F.3d 1095, 1099 (D.C. Cir. 1997).
FN2: Exby-Stolley, 2018 WL 4926197, at *1, 4 (quoting 42 U.S.C. § 12112(a)).
FN3: See Exby-Stolley, 2018 WL 4926197, at *12.
FN4: Under the ADA, employers must provide a “reasonable” accommodation to a disability—not any requested accommodation. Employers are not required to eliminate an essential function of a job to accommodate a worker with a disability. See http://www.rockymountainemployersblog.com/blog/2018/5/17/employers-are-not-required-to-accommodate-employees-requests-for-shorter-workday-where-overtime-is-an-essential-function-of-the-job-eighth-circuit-holds