The United States Court of Appeals for the Tenth Circuit (which oversees Colorado, Wyoming, Utah, Oklahoma, Kansas, and New Mexico) recently issued a decision addressing whether the Americans with Disabilities Act (ADA) permits a claim by an employee for an employer’s failure-to-accommodate without an adverse employment action occurring. The Tenth Circuit ruled that employees who claim that their employer failed to accommodate their disability do not need to show that they were fired or demoted to be able to sue under the ADA.
Background
The employee formerly worked as a health inspector for a county in Colorado. Her job required her to inspect restaurants, bars, and other places that handle food, interview employees, and observe safety practices. While on the job, the employee broke her right arm. This required prolonged treatment, including two surgeries. Because of her injury, she had to use makeshift devices to assist her in tasks such as lifting, moving, and opening objects, and she had to learn to write using her left hand. The inspections therefore took her longer than before, and she could not complete the number of inspections required to be conducted by those in her position.
As a result of these limitations, the employee sought a reasonable accommodation from her employer. After she and her employer could not agree on an accommodation, she resigned. The employee subsequently sued the employer, alleging that it had failed to reasonably accommodate her as required by the ADA.
District Court’s Decision
The employee’s lawsuit went before a jury on one issue—whether the employee had been discharged from employment or suffered another adverse employment action. In this regard, the court instructed the jury that “[a]n adverse employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” The jury determined that the employee had not proven that she was discharged from employment or had some other adverse employment action taken against her. The employee appealed the District Court’s instruction to the jury that the employee had to prove that she had suffered an adverse employment action to prevail on her claim.
Appellate Court’s Decision
The Tenth Circuit agreed with the employee. In doing so, the court rejected the prior ruling that employees alleging disability bias must show an adverse employment action when they sue employers for failing to accommodate their disability. The Tenth Circuit determined that the ADA’s reference to “terms, conditions, and privileges of employment” should be read in light of how courts have interpreted that language under Title VII of the Civil Rights Act. The court further held that, based on the Supreme Court’s prior readings of parallel language in Title VII, the reference to “terms, conditions and privileges” was intended to be widely construed and cover “the entire spectrum of employment discrimination.” Accordingly, the court determined that the ADA’s scope was sufficiently wide to permit a standalone cause of action for failure to accommodate.
Takeaway
Due to this ruling, employees, at least in the Tenth Circuit, no longer must show that they suffered an adverse employment action to sue under the ADA over an alleged failure to accommodate. This change will likely make claims against employers more prevalent and easier to bring regarding an employer’s failure to reasonably accommodate. Thus, a failure to properly engage in and fulfill an employer’s obligation under the reasonable accommodation process and analysis, may, standing alone, result in liability. However, even with this ruling, employers can still do their best to prevent ADA suits altogether. Employers should continue to engage in good faith in the ADA-interactive process: communicate with the employee, explore possible accommodations, and determine whether the proposed accommodation poses an undue hardship or is otherwise not acceptable under the ADA. Employers also should document every step of the interactive process from the initial request through the selection and implementation of accommodation (or denial of the request for an accommodation). Effective and consistent policies will continue to work as a deterrent and have a strong impact against ADA suits.
R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.
