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Failure to Accommodate Requires More than Mere Inconvenience to an Employee
February 27, 2019
Parsons Behle & Latimer Legal Briefings


In 2018, the Tenth Circuit Court of Appeals clarified the elements of a failure to accommodate claim under the Americans with Disabilities Act (ADA), finding that a necessary element of such a claim was that an “adverse employment action” be taken against the employee. In Exby-Stolley v. Board of County Commissioners, Weld County, Colorado, 906 F.3d 900 (10th Cir. 2018), the plaintiff was a county health inspector who broke her arm and was thereafter unable to meet her inspection quotas. After a jury rejected her claim, the plaintiff appealed a jury instruction that she had to prove she had suffered an adverse employment action. For purposes of the appeal, it was established that the plaintiff was moved into a part-time office job, she did not receive a reduction in pay, the county had declined to create a new position and that there was no current availability for similar positions in the county.

Assuming the plaintiff’s status as a qualified disabled individual, the threshold question before the court was whether an “adverse employment action” was a necessary element of a failure to accommodate claim. Looking to the plain terms of the ADA’s opening provision, 42 U.S.C. § 12112(a), the Court found that the statute required any disability discrimination to be “in regards to” the “terms, conditions, a and privileges of employment.” Put simply, a plaintiff was required to show that any discrimination had a negative impact on the terms and conditions of their employment.[1]

While the court acknowledged that any inquiry into what constituted an “adverse employment action” would be fact intensive, it provided some guidance into the question. Any such action would necessarily impact the “terms, conditions, or privileges of employment.” Because a “mere inconvenience” would not impact the “terms, conditions, or privileges of employment,” it could not amount to an “adverse employment action” within the meaning of the ADA.[2] Here, where the jury had found no affirmative effort to negatively alter the terms of employment, there was no error in finding she had not suffered an adverse employment action.

In sum, to prevail in a failure to accommodate claim, a plaintiff must show an adverse employment action by their employer—that their employer took affirmative steps to diminish or eliminate the plaintiff’s position. The mere unavailability of similar positions, or a delay in finding accommodations is not generally sufficient to carry the claim. Nevertheless, whether any particular employment action is adverse is fact intensive, and care should be taken to minimize those risks.

[1] While the plaintiff urged the court adopt the test for racial employment discrimination set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the court rejected this contention. The ADA specifically defined “discrimination,” in part, as “not making reasonable accommodations” for a qualified individual. 42 U.S.C. 12112(b). Unlike racial discrimination claims, no disparate treatment is required. A disabled employee could bring a failure to accommodate claim even if the employer had similarly failed to accommodate able employees. This justified a departure from the McDonnell framework to instead consider the remaining statutory text.

[2] In dicta, the court noted that “failure to accommodate a wheelchair-bound employee by moving her office a few feet closer to the entrance may not be an adverse employment action if requiring the employee to travel the extra distance is a mere inconvenience.”

To learn more about this topic or other employment-related issues, contact Cedar Costner at (801) 536.6909 or click here to contact Cedar via email.

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