Last month, the United States Supreme Court declined to settle an apparent disagreement among the federal appeals courts over whether the ADA requires an employee bringing a failure-to-accommodate claim to show that they suffered an adverse-employment-action. The Supreme Court denied the employer’s request to hear the appeal in a case out of the Tenth Circuit, Exby-Stolley v. Board of County Commissioners, Weld County Colorado, which concerned an employee suing her employer for failing to accommodate her disability, and as a result, compelling her to resign. The employer, however, argued that Ms. Exby-Stolley’s resignation was voluntary. At issue in the Tenth Circuit’s review was the failure-to-accommodate jury instructions given at trial, which stated the Plaintiff must prove that she was “discharged from employment or suffered another adverse employment action.” Exby–Stolley, 979 F.3d 784, 789 (2020). Lo and behold, the jury found that, although her employer failed to accommodate her disability, the Plaintiff did not establish that she had suffered an adverse employment action. On appeal, the Tenth Circuit Panel Majority affirmed the district court’s judgment that an adverse employment action is an element of a failure-to-accommodate claim.
The Tenth Circuit, reviewing its previous Panel Majority decision, overturned the ruling of the district court that an adverse employment action is a requisite element of a failure-to-accommodate claim under the ADA. In reaching its decision, the Tenth Circuit considered:
- the Tenth Circuit’s precedent, where the appeals courts routinely omitted an adverse-employment-action element in their delineation of failure-to-accommodate elements, and stressing that employers have an affirmative duty to accommodate, which is incongruent with an adverse-employment-action requirement;
- the inherent nature of a failure-to-accommodate claim, as opposed to a disparate-treatment claim (in part, that failure-to-accommodate claims allege an employer failed to act, whereas an adverse employment action allegation claims that an employer acted wrongfully);
- the EEOC’s views on the matter in administering the ADA, which specifically omit an adverse employment action requirement in its reasoning;
- the ADA’s general remedial purposes (i.e. promoting full participation and equal opportunity in the workforce to disabled persons, which can be promoted by placing affirmative obligations on employers to make reasonable accommodations); and
- the fact that no other Circuits, in effect, require an adverse-employment-action in failure-to-accommodate claims (those Circuits that do require an adverse employment action in these circumstances consider the failure-to-accommodate itself as a qualifying adverse employment action).
This phantom circuit split could explain why the Supreme Court refused to review this case. While some Circuits, such as the Third and Eighth, purport to incorporate an adverse employment action requirement in ADA failure-to-accommodate claims, such circuits “do so in name only.” Id. at 804. Where an adverse employment action is required, the employer’s failure to accommodate itself satisfies that element. Accordingly, there is no true split among the federal circuits regarding an adverse-employment-action element in ADA failure-to-accommodate claims: in effect, it is not required by any of the circuits.
The First Circuit, which covers Massachusetts, includes itself amongst those circuits which “either state, or strongly suggest, that there is no adverse-employment-action requirement in ADA failure-to-accommodate claims.” In Carroll v. Xerox Corp., the First Circuit stated that in ADA failure-to-accommodate claims, the plaintiff “must show (1) that he suffers from a disability or handicap…, that (2) he was nevertheless able to perform to perform the essential functions of his job, either with or without reasonable accommodation, …. [and] (3) [that the employer], despite knowing of his alleged disability, did not reasonably accommodate it.” 294 F.3d (1st Cir. 2002).
Whether or not a case involves an alleged termination or alleged adverse action, it is important for employees and employers to consult with experienced legal counsel when these issues arise. Our attorneys have years of experience in these matters, from evaluating accommodation requests to litigating disputes over disability accommodations. If you are confronting this or another employment law issue, please contact us at 617-577-8800.