Reimagining Adverse Employment Actions in ADA Failure-to-Accommodate Claims

Posted on Feb 29, 2024

Seth Stancroff

 

The Americans with Disabilities Act (ADA) aims to protect individuals with disabilities from discrimination by their employers.[1] One protection offered by the statute is a requirement that employers make reasonable accommodations for qualified employees.[2] If an employer fails to make an accommodation,[3] it violates the ADA’s anti-discrimination provision and exposes itself to liability for failure to accommodate.[4] However, the prima facie elements of a failure-to-accommodate case have not been universally agreed upon. Historically, some courts have held that a plaintiff must prove that she suffered an “adverse employment action” in addition to the denial of her accommodation—that is, she must show that she suffered some additional “materially adverse change in the terms and conditions of [her] employment.”[5] Other courts have held that the failure to accommodate alone is actionable.[6]

It seems that this disagreement could be avoided with a more direct approach: why not categorize the denial of a reasonable accommodation as an adverse employment action in itself?  

The idea is not without controversy. One legal scholar refers to it as “trying to fit a square peg into a round hole,” arguing that “[a]lthough the definition of what constitutes an adverse employment action has been interpreted broadly, the failure to reasonably accommodate … does not logically fall within the scope of the phrase’s meaning.”[7] The Tenth Circuit has taken a similar position, stating that use of the term “adverse employment action” should be restricted only to situations involving a “significant change in employment status,” with a failure to accommodate not included.[8]

But that scholar’s characterization is not obvious—it is not clear that the denial of a reasonable accommodation could not “logically fall within the scope” of materially adverse changes in the terms or conditions of employment. Likewise, the Tenth Circuit’s definitional limitation was self-imposed based on its own precedent.[9] Other courts have in fact adopted the “failure to accommodate as an adverse employment action” approach,[10] and there is ample reason to believe that it is supported by the text—and is consistent with the stated purpose—of the ADA.

Turning first to a brief textual analysis, there is a notable overlap between the judge-made (and widely agreed-upon) definition of “adverse employment action” and the ADA’s anti-discrimination provision. Specifically, both refer to “terms” and “conditions” of employment. The statute prohibits discrimination in regard to the “terms, conditions, and privileges of employment,”[11] with a failure to reasonably accommodate included in its definition of discrimination.[12] Similarly, an adverse employment action is one that causes a materially adverse change in the “terms and conditions of employment.”[13]

It is difficult to imagine that the denial of a reasonable accommodation would not cause a materially adverse change in the terms or conditions of an individual’s employment. A focus on the word “conditions” is informative. “Conditions” is defined as “the circumstances affecting the way in which people live or work, especially with regard to their safety or well-being.”[14] If an individual with a disability requires a reasonable accommodation to perform a job the way a person without a disability would, the denial of that accommodation would almost always seem to adversely affect the conditions of that individual’s employment.[15] This is especially true regarding safety. If an employee is unable to obtain an accommodation that enables him to perform his job safely, that indisputably has a material adverse effect on the conditions of his employment.[16]

The “failure to accommodate as an adverse employment action” approach is also consistent with the legislative purpose of the ADA, which is to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”[17] The text and legislative history of the statute reveal that Congress was concerned primarily with advancing the equal treatment and promoting the dignity of people with disabilities.[18] The connection between dignity, equal treatment, and workplace disability accommodations is almost self-evident. When an employer denies a reasonable accommodation such that an employee with a disability cannot participate as a person without a disability can, that denial surely constitutes a violation of the employee’s dignity, as well as a deprivation of equal opportunity.[19]

The argument for treating a failure to accommodate as an adverse employment action is consistent with the text and purpose of the ADA. It is an approach already accepted by some courts, and despite criticism, it provides strong support for the conclusion that plaintiffs do not need to prove additional adverse employment actions in order to bring failure-to-accommodate claims.

 

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[1] 42 U.S.C. §§ 12101–12213.  

[2] 42 U.S.C. § 12112(b)(5)(A). The protection also extends to job applicants.

[3] It is the employer’s burden to show that the denial would “impose an undue hardship”—if such a showing cannot be made, a reasonable accommodation must be granted. 42 U.S.C. § 12112(b)(5)(A).

[4] 42 U.S.C. § 12112(a).

[5] See generally, Megan I. Brennan, “Need I Prove More: Why an Adverse Employment Action Prong Has No Place in a Failure to Accommodate Disability Claim,” 36 Hamline L. Rev. 3 at 497, 500 (2013); Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53, 60 (2006) (defining “adverse employment action” as “a ‘materially adverse change in the terms and conditions’ of employment.”).

[6] See generally Nicole Buonocore Porter, Adverse Employment Actions in Failure-to-Accommodate Claims: Much Ado About Nothing, 95 N.Y.U. L. Rev. Online 1 (2020). In reality, the disagreement among the courts has settled in recent years. The Eleventh Circuit is the only remaining jurisdiction in which plaintiffs are required to prove additional adverse employment actions in order to bring successful failure-to-accommodate claims. See Beasley v. O’Reilly Auto Parts, 69 F. 4th 744 (11th Cir. 2023). For a recent example of a court “correcting course” on this issue, see Exby-Stolley v. Board of County Commissioners, 906 F.3d 900 (10th Cir. 2018). In 2018, a panel of the Tenth Circuit held that adverse employment actions are required for failure-to-accommodate claims. However, the Court reheard the case en banc in 2020 and reversed itself, “reject[ing] the view that an adverse employment action is a requisite element of an ADA failure-to-accommodate claim.” Exby-Stolley, 979 F.3d 784, 819 (10th Cir. 2020) (en banc).

[7] Brennan, “Need I Prove More,” 36 Hamline L. Rev. 3 at 497, 511 (2013).

[8] Exby-Stolley, 979 F.3d at 818.

[9] Id.

[10] Colwell v. Rite Aid Corp., 602 F.3d 495, 504 (3rd Cir. 2010) (“Adverse employment decisions in this context include refusing to make reasonable accommodations for a plaintiff’s disabilities.” Citing Williams v. Phila. Hous. Auth. Police Dept., 380 F.3d 751, 761 (3rd Cir. 2004) (emphasis added)); Dick v. Dickinson State Univ., 826 F.3d 1054, 1060 (8th Cir. 2016) (“[a]n employer is … liable for committing an adverse employment action if the employee … requested but was denied a reasonable accommodation.”).

[11] 42 U.S.C. § 12112(a).

[12] 42 U.S.C. § 12112(b)(5).

[13] See note 5 supra.

[14] Oxford Dictionaries (accessed at: https://premium.oxforddictionaries.com/definition/american_english/condition perma: https://perma.cc/9S8B-5QPU).

[15] The employer’s “action” here is the denial—or affirmative decision to ignore—a request for reasonable accommodation. It could be argued that this constitutes an omission (or simply a maintenance of the status quo) such that it should not be thought of as an adverse employment action. However, this characterization fails to consider the circumstances in which disability accommodations arise. Requests for reasonable accommodation are typically made when an individual with a known disability is first hired, or when an employed individual is injured or develops a disability that requires accommodation. See, e.g., Beasley, 69 F. 4th 744 (11th Cir. 2023); Harvey v. Wal-Mart La. L.L.C., 665 F. Supp. 2d 655 (W.D. La. 2009); Wade v. DaimlerChrysler Corp., 418 F. Supp. 2d 1045, 1051 (E.D. Wis. 2006). In these situations, an employer’s denial of a reasonable accommodation (absent undue hardship) is indeed an action causing a materially adverse change in the conditions of employment; the employee with a disability would be able to perform her job functions but for the denial of a reasonable accommodation.    

[16] These were the facts from the Eleventh Circuit case of Beasley, 69 F. 4th 744 (11th Cir. 2023). Beasley alleged that he required a sign language interpreter during training sessions to enable him to perform his job functions safely, and that his employer ignored and denied his requests. Complaint at 3, Beasley v. O’Reilly Auto Parts, 1:20-cv-00092 (S.D.Ala. Feb. 18, 2020).

[17] 42 U.S.C. § 12101(b).

[18] See, e.g., 135 Cong. Rec. 19791, 19803 (1989) (The ADA “sends a clear message that they are entitled to be treated with dignity and respect.”); 136 Cong. Rec. 10850, 10857 (1990) (The ADA offers people with disabilities the opportunity “to be free from the demeaning treatment which makes it so difficult for so many of our fellow citizens to live their lives with basic dignity.”); H. Rep. 101-485 pt. 2, “Americans with Disabilities Act of 1990,” Comm. On Education and Labor, 47 (May 15, 1990) (“[t]he commitment to promote greater dignity and an improved quality of life for people with disabilities evinced in the provisions of the Act provide further powerful justification for its enactment.”). See also S. Hrg. 100-926, S. 2345 (Sept. 27, 1988) (“We continue the process of transforming the ADA into law. Its effects should … not be characterized as preferential treatment, but as reaffirmed human dignity.”); Oversight Hearing on H.R. 4498, Americans with Disabilities Act of 1988 (Oct. 24, 1988); S. Hrg. 101-156 on S.933 (May 9, 10, 16, and June 22, 1989); Hrg. on H.R. 2273, House Subcomm. on Employment Opportunities, Comm. On Education and Labor (Sept. 13, 1989).   

[19] The connection between dignity, equality, and workplace accommodations has been explored in the business and management studies literature. See, e.g., Monique Valcour, “The Power of Dignity in the Workplace,” Harv. Bus. Rev. (Apr. 28, 2014) (https://hbr.org/2014/04/the-power-of-dignity-in-the-workplace). See also Andrew Sayer, “Dignity at Work: Broadening the Agenda,” 14 Organization 565, 570 (2007) (“The often delicate relations between respect for autonomy and vulnerability in the maintenance of dignity are particularly evident in relations between disabled and able-bodied individuals [citation omitted]. To draw attention to someone’s disability where it’s irrelevant to the situation, or to treat someone who is disabled as reducible to their disability is to undermine their dignity. On the other hand, where the disabilities are relevant, it is of course insensitive to ignore them. Dignified relations involve respect both for others’ autonomy and their dependence on others, not taking advantage of their vulnerability.”).