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.

 

FMLA lawyers in Colorado

Protected leave does not automatically prevent termination from your job

Employees around the country often misunderstand that protected leave from a job is not an automatic bar from an employer terminating the employee for other reasons. The role of protected leave for a family or medical reason is to protect an employee from termination due to the leave. Generally, employers can terminate, demote, promote, transfer, or otherwise change an employee’s job during or after a protected period of leave under federal or Colorado employment law so long as the motivation for the change is not the employee’s protected leave or the reason for the protected leave. (Assuming no other unlawful motivation exists.)

Employees facing termination or demotion while on a protected leave or immediately following a protection period of leave have good reason to be concerned that the employer’s motives are not pure. Often employers have unlawful motivations that create claims under federal or Colorado employment law for wrongful termination. It usually is not obvious whether the employer’s action is lawful. For this reason, if you are fired during or after a period of leave from your job then you should contact employment lawyers in Denver about potential claims.

Protected leave from your job in Colorado

Colorado employees may enjoy protected family or medical leave for a variety of reasons under state or federal employment law. These laws protect the right to return to work at the same or similar position after a protected period of leave. However, the right to return to work is not absolute under these laws. They only protect the employee’s right to return to work at the same or similar position as though the employee never took leave at all. To put it more precisely, these employment laws protect access to limited periods of leave of absence and prohibit employers from discriminating against employees for requesting, taking, or returning from protected leave.

Laws protecting employee right to leave of absence for family and medical issues include:

  • Family and Medical Leave Act: FMLA protects up to twelve weeks of unpaid leave for care of the employee’s or certain family member’s serious medical condition, pregnancy, childbirth, or bonding with an adopted or foster child;
  • Colorado Family Care Act: Colorado FCA expands FMLA coverage for a broader range of family members;
  • Americans with Disabilities Act: Protects certain medical leave periods as a reasonable accommodation to a disability;
  • Pregnancy Discrimination Act: PDA is a federal law requiring covered employers to allow pregnancy and childbirth-related leave under the employer’s short term disability leave policy, if it has one; and
  • Colorado Anti-Discrimination Act: Provides similar protection for a reasonable accommodation to a disability as well as pregnancy and childbirth-related leave under the employer’s short term disability leave policy.

The length of protected leave under these laws can vary considerably and in the case of long term medical conditions there may be concurrent protection under several laws, such as FMLA, ADA and the Colorado ADA. For this reason, if you find yourself dealing with any problems with family and medical leave in Colorado then you should find a local employment lawyer right away to advise you how to deal with these issues.

Why protected leave of absence laws in Colorado do not always protect you from termination

Protected leave employment laws are designed to protect access to leave of absence for medical and family reasons, not to prevent the employer from conducting other employment practices. It is a common myth that protected leave laws absolutely protect an employee from termination during or around the leave of absence. Employers can discharge or take other adverse employment acts during a protected leave period but risks the employee contacting an employment lawyer and pursing a claim that the employer’s termination or other detrimental act was motivated by the protected leave.

If an employer could never terminate an employee during or immediately after a protected leave period then it would lead to some unusual results:

  • Employees with legitimate disciplinary or performance issues could find a reason to seek FMLA leave or another protected leave to extend the job and force the employer to choose between firing the employee or enduring an expensive employment lawsuit.
  • Employers engaging a reduction in force would have to carve out any employees who are on, about to be on, or recently returned from protected leave from the RIF and target other employees who might be more productive or more senior, which could create other legal issues for the employer.
  • Unscrupulous employees looking for an easy payday could actually perform poorly enough to be on the cusp of a legitimate termination and then abuse protected leave laws to force the employer’s hand to fire them just to pursue a nuisance lawsuit.
  • A new wave of employment lawsuits would arise establishing rules about how much time must pass between protected leave and an unrelated termination which will make protected leave laws less specific and cost a significant figure for both employers and employees in litigation expenses.
  • Good employees who deserve to advance may be held back because the employer’s cost-benefit analysis favors keeping a poor performer with protected leave for fear of a related lawsuit.

This would be a losing proposition for employers and good employees while maybe helping bad employees.

When federal and Colorado protected leave laws prevent your employer from a wrongful termination

An employer generally cannot fire an employee because of the protected leave or protected leave request. That means an employer cannot:

  • Fire the employee in response to requesting or inquiring about taking leave protected by a federal or Colorado employment law;
  • Fire the employee for submitting a valid request for protected leave but insisting the leave request was invalid;
  • Terminate the employee while on protected leave for taking leave;
  • Discharge the employee while on protected leave for not performing material work during a leave period;
  • Terminate the employee after returning from protected leave for requesting or taking the leave of absence.

Colorado and federal employment laws generally prohibit employers from terminating an employee for the sole reason of requesting or taking protected leave or in addition to other legitimate reasons. Sometimes employers have lawful reasons to terminate an employee but are motivated to fire the employee for lawful reasons plus the unlawful reason that the employee requested or took leave protected by law. This is known as a mixed motive claim. In a mixed motive claim the employee’s ability to recover for damages is often limited if the employee cannot disprove that the alleged lawful reasons actually motivated the employer. However, the employee can generally still recover some damages for the employer’s unlawful motivation.

Knowing whether an employer wrongfully terminated an employee for taking a leave of absence

Wrongful termination claims involving leaves of absence can be difficult to pursue because the employer often will rely upon a defense that the discharge was based on a legitimate, unrelated business decision regardless of the truth to that defense. It may not be obvious whether the employer has a legitimate defense or whether the employee can recover a worthwhile sum based upon the facts. This is a good reason to work with an employment lawyer in Colorado to assess your case and help you pursue it.

An employee included in a layoff during a leave of absence is a common source of wrongful termination claims for FMLA and other protected leaves of absence. Employees on a protected leave generally can be a part of a reduction in force so long as the employee’s inclusion is not related to the protected leave. Often employers do not explain why employees become part of a RIF and even when they do there is no guarantee the employer’s explanation is true. Planning for RIFs usually begins months beforehand so it may be possible to compare the timeline of the leave request and inclusion on the RIF list.

Employees may be individually fired during a protected leave of absence outside of a RIF. In these cases the employer’s explanation for the termination normally involves a performance or disciplinary issue with the employee. In these cases the employer should have a documented history of progressive discipline unless the reason for termination is particularly egregious. It may be possible to compare how the employer treated similar employees without a protected leave of absence to see if the employer fired other employees with similar problems.

Hiring employment lawyers for wrongful termination claims in Denver, Colorado

Employment lawyers have experience dealing with these wrongful termination claims and know how to investigate and pursue these claims. In many cases the employment lawyer must assess the potential client’s claims based on access to minimal information and pursue additional documents and information through the discovery phase of litigation. Lawyers with experience dealing with wrongful termination claims under federal and Colorado employment law are best equipped to be able to assess claims early in the process to determine whether it may be worth pursuing to that point.

If you believe you were wrongfully terminated due to a protected leave request then you should find a local employment lawyer right away to discuss your claim. Some protected leave laws require employees to take certain steps within limited time periods to pursue their claims.