Tenth Circuit rules ADA failure to accommodate claims must prove adverse employment action

This month the federal Tenth Circuit held in Exby-Stolley v. Board of County Commissioners, Weld County, Colorado that a failure to accommodate claim under the ADA must prove an adverse employment action. In a 2-1 decision exploring the divide among federal circuits the majority came down in favor of the employer, extending defensive opportunities to this form of disability discrimination claim. Eventually this issue may rise to the Supreme Court but for now Colorado employees are subject to the explicit holding by the Tenth Circuit in this case.

The facts in Exby-Stolley v. Board of County Commissioners, Weld County, Colorado

Ms. Exby-Stolley was a health inspector for Weld County, Colorado. She suffered a broken arm which made it difficult for her to perform her normal job duties. The parties disagree over the facts that follow.

The plaintiff alleged this set of events. She received a poor evaluation for being behind in work. After disclosing her physical condition she met with her supervisors and human resources. The parties agreed to transition her to part time office work. The pay difference in work hours was made up by workers compensation. After this first meeting, her supervisors’ manager asked plaintiff why she did not take disability and expressed anger that she would not. Eventually plaintiff grew dissatisfied with the part time position and requested a second meeting. At this meeting all of plaintiff’s proposed accommodations were rejected. At the end of the meeting her supervisors’ manager talked to her and plaintiff understood the conversation to mean she needed to resign. Plaintiff met with human resources and looked at other job opportunities and long term disability. Days later, plaintiff sent an email to colleagues announcing her resignation because she could not perform her job duties.

Weld County, Colorado alleged similar events with some key differences. The employer alleged at the second meeting plaintiff requested a job should be created for her out of the job duties she could do and that she could not perform all of the normal job duties of her position. Nobody recalled discussing resignation. Instead, no final decision had been made and the defendant expected to continue the interactive process to accommodate her disability.

At the conclusion of a five day trial the jury sided with the employer. Plaintiff appealed that the trial court improperly instructed the jury that she had to prove she suffered an adverse employment action.

Adverse employment actions and failure to accommodate under the ADA

The appellate court wrestled with whether a failure to accommodate claim under the ADA requires the plaintiff to prove she suffered an adverse employment action. Under the Americans with Disabilities Act, an employer has a duty to provide a reasonable accommodation to a qualified individual with a disability. Failure to provide a reasonable accommodation violates the statute and creates a claim for disability discrimination. Federal circuits disagree whether the failure to accommodate is itself a discriminatory act or whether an adverse employment action must follow the failure to accommodate.

An adverse employment action in employment discrimination law is a serious and material change in the terms, conditions, or privileges of employment. The meaning of this term is well analyzed in employment discrimination law. Whether an employer’s act qualifies as an adverse employment action is fact specific and may be a disputed issue in the course of litigation.

Disability discrimination claims in Colorado

The majority opinion holds an adverse employment action must follow the failure to accommodate

The majority rests its position primarily upon analogizing failure to accommodate claims to disparate treatment claims under the ADA and other federal employment discrimination statutes. The majority fills in the ADA statutory language with analogies to Title VII and case law to assert the statute requires proof of an adverse employment action. It indicates the McDonnell-Douglas framework must be modified to omit the requirement that the employee show he or she was treated less favorably than a non-disabled employee because the failure to accommodate is a discriminatory act under the statute.

The majority spends little to no space explaining why its position is correct; instead it devotes time to explaining that it is correct (and why the dissent is wrong) and that the McDonnell-Douglas framework is appropriately flexible to apply here. The majority fails to draw a compelling case why a failure to accommodate claim is sufficiently indistinguishable from a disparate treatment claim or why a failure to accommodate is not itself an adverse employment action.

The majority dismisses contrary case law with much hand-waiving. It dismisses the dissent’s position that prior Tenth Circuit case law disagrees with the majority by insisting opposing prior case law consists of non-binding dicta and crafts alternative explanations for non-dicta contentions. It provides similar machinations to explain away other circuit disagreement. It instead points to cases from the First, Second, Seventh, Eighth and Ninth circuits as agreement with its position.

The dissent

The dissent alternatively distinguishes between failure to accommodate claims from disparate treatment claims. The dissenting judge asserts failure to accommodate are uniquely different types of claims in which the failure to accommodate serves as an adverse act by itself. The dissent relies upon prior Tenth Circuit opinions distinguishing the two types of claims in addition to agreeing circuits of the Third, Fifth and Seventh.

While the dissent raises a less tortured analysis of binding and persuasive precedent, it also fails to make a compelling case why not requiring an additional adverse employment action makes sense within the objectives of the ADA. It makes more sense for the dissent to draw a brief argument that binding precedent requires an alternative result to the majority; however, an argument why precedent is correct certainly could have helped.

Where Colorado employees go from here

Until the Tenth Circuit or Supreme Court revisits this opinion, employees in the Tenth Circuit are stuck following the majority’s position here. It’s unknown whether the plaintiff will request a rehearing en banc to let the entire court hear the case or ask the Supreme Court to weigh in. The apparent circuit split on this issue will almost certainly be addressed by the Supreme Court at some point soon but that may be years away.

The biggest problem with the majority’s position is that it forces disabled employees who are denied reasonable accommodations to endure the absence of an accommodation until the problem compounds into something a court might agree is an adverse employment action. In between the failure to accommodate and the adverse employment action, disabled employees are likely to fall behind at work and generate a less favorable reputation for his or her work that will not be cured simply by remedying an adverse employment action. The long term implications go far beyond the immediate adverse employment action. The mere refusal to provide a reasonable accommodation in many cases results in a less favorable employment situation than the disabled employee’s able colleagues. That is the type of discriminatory impact laws like the ADA were enacted to combat.

From a litigation standpoint the majority’s position makes cases more difficult for employees. Requiring the employee to prove an adverse employment action gives employers two additional defensive opportunities. First, employers obtain the opportunity to assert the alleged adverse act fails to meet the legal threshold to qualify as an adverse employment action. This helps employers in close cases where the adverse act is less obvious, like a termination. Second, it gives employers the opportunity to allege the adverse employment action occurred due to a non-discriminatory reason. That puts employees in the strange position to argue the employee underperforms and every possible reason for underperformance relates to the unaccommodated disability.

Pursuing failure to accommodate claims with Denver employment lawyers

The decision in Exby-Stolley will make pursuing failure to accommodate claims under the ADA more difficult and more necessary to hire a Denver employment lawyer to represent you. Employees with failure to accommodate claims will have to look closely at what adverse employment action occurred and properly allege it in the lawsuit. Plaintiffs may allege under the ADA that the failure to accommodate deprived the employee of enjoyment of the benefits of employment as an adverse employment action but it is not yet clear how the Tenth Circuit will treat those arguments. Each of these claims must be carefully reviewed and alleged from the administrative charge through filing a lawsuit.

Experienced employment lawyers in Denver, Colorado can make it an even battle on your behalf. If you believe your employer failed to reasonably accommodate a disability then you should talk to a Denver employment lawyer right away. What you do from the beginning may help avoid a difficult situation at work or help prepare a strong case from the outset. You also may need to begin work on your case right away due to time limitations under the ADA and state law. Failure to act properly within these time limits may impair your ability to pursue a meritorious case. Talk to Denver employment lawyers about your workplace situation right away.