Tenth Circuit Reverses Itself: Adverse Action Not Required to State ADA Failure-to-Accommodate Claim

by John Melcon

Sitting en banc, the Tenth Circuit Court of Appeals recently ruled that an adverse employment action is not a required element of a failure-to-accommodate claim brought under the Americans with Disabilities Act (“ADA”). In Exby-Stolley v. Bd. of Cty. Comm’rs, No. 16-01412 (10th Cir. Oct. 28, 2020) (“Exby-Stolley II”), the majority of the court ruled that a plaintiff bringing a failure-to-accommodate claim does not have to show he or she experienced a significant change in employment status such as firing, failing to promote, reassignment with different responsibilities, or a change in benefits over and above the alleged failure to accommodate her disability.  The ruling reversed a prior decision by a panel of the court.  (Link to prior post.)

Despite the lengthy majority and dissenting opinions generated in the case (some 135 pages in total), last week’s ruling is unlikely to have a major impact on ADA litigation. That’s because the vast majority of ADA claims arise when an employee is fired because he is unable to perform the essential functions of the job, yet the employee contends a reasonable accommodation would have been possible. In all those cases, the employee has been discharged—a clear adverse employment action.

The rule in Exby-Stolley II comes into play in the rare ADA case where an employer refuses to provide a requested, reasonable accommodation and simply leaves it at that, perhaps because the employer is fine with the disabled employee’s limited or diminished work performance. Exby-Stolley II confirms that an employer in that situation may be exposed to liability under the ADA because the failure to accommodate is itself discriminatory. To use the court’s language, the failure to provide a reasonable accommodation—even absent some other adverse action—prevents a disabled individual from “fully participating in society” or achieving her “full professional potential.”