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Tenth Circuit Joins Other Courts on Failure to Accommodate Claims

By: Jonathan R. Mook

One of the defining features of the Americans with Disabilities Act (“ADA”) is the obligation of an employer to take affirmative steps to provide “reasonable accommodation” to individuals with disabilities in order to enable them to perform the essential functions of the job.

In this regard, the ADA defines discrimination as “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.”
For most courts, to state a reasonable accommodation claim, a plaintiff need merely show that with reasonable accommodation, she could have performed the essential functions of the job, that the employer had notice of the plaintiff’s disability, and that the employer failed to provide the accommodation. There is no need for a plaintiff to make an additional, separate showing that she suffered an adverse job action as a result of the employer’s failure to accommodate.

The only circuit court to deviate from this view has been the Tenth Circuit, which, in a 2018 three-judge panel opinion in Exby-Stolley v. Bd. Of Cty. Comm’rs, held that a plaintiff must establish an additional element: that he or she suffered an adverse employment action as a result of the failure to accommodate. The panel opinion prompted a vigorous dissent by one circuit court judge, which led the plaintiff to seek en banc review by all of the judges on the Tenth Circuit.

The circuit court accepted review, and in a closely divided seven-to-six decision, the Tenth Circuit, sitting en banc, reversed the 2018 panel decision and sent the case back to the district court for a jury trial to decide the plaintiff’s failure to accommodate claim. In doing so, the appeals court followed the reasoning of its sister circuit courts and held that to pursue a failure to accommodate claim, a plaintiff is not required to show that she suffered an adverse employment action.

Although some commentators have expressed concern that the Tenth Circuit’s en banc decision in Exby-Stolley will open the flood gates for ADA reasonable accommodation claims, the impact of the decision may not be as dire as has been painted. Most ADA claims arise when a disabled employee requests an accommodation to perform the essential functions of the job, the request is denied, and the employee is later terminated or demoted because the employee cannot satisfy the job requirements. Thus, in addition to an employer’s failure to accommodate, the employer also has taken an adverse job action (such as termination or demotion). Accordingly, only time will tell how the Tenth Circuit’s decision in Exby-Stolley will impact the development of ADA law.

If you would like a copy of Jonathan’s article entitled, “Tenth Circuit Joins Other Courts on Failure to Accommodate Claims,” which appears in the March, 2021 issue of Bender’s Labor & Employment Bulletin, please contact Jonathan at jmook@dimuro.com.

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