10th Circuit Declares Adverse Employment Action Required For Failure To Accommodate Claims

ABSTRACT: An adverse employment action is an element of a failure to accommodate claim. Adverse employment action means more than a mere inconvenience.

The Tenth Circuit was tasked with evaluating whether or not an adverse employment action is an essential element of a failure to accommodate action under the American Disabilities Act (ADA). In a divided opinion, the court said Yes. 

In Exby-Stolley v. Board of County Commissioners, plaintiff worked as a county health inspector and her job required her to inspect restaurants, bars, other places that handle food, interview employees and observe safety practices. While on the job, plaintiff broke her arm and required two surgeries. Because of her injury, plaintiff had to use makeshift devices to assist her and she could not complete the number of inspections required for her position.

The court noted there were two very different versions of the efforts to accommodate plaintiff. Plaintiff alleged that she suggested various accommodations that were rejected by her supervisors. This resulted in her supervisor telling her to resign. The County alleged that plaintiff requested that a new position be created for her piecing together various tasks from her job and other positions. The County considered it unfair to take tasks from fellow employees to create a new job for plaintiff. Plaintiff resigned when she was told the County would not provide job she requested.  

Plaintiff filed suit alleging that the County violated the ADA by failing to reasonably accommodate her disability. The Court of Appeals recited the familiar proposition that “failure to accommodate” claims are actionable under the ADA, but then turned to the question of whether proof of an adverse employment action is an essential element of such claims; and whether the plaintiff in this case had in fact suffered an adverse employment action. The court explained at length that although the language “adverse employment action” does not appear in the ADA, it is well established in judicial opinions. Furthermore, the court will not consider a mere inconvenience to accommodating an individual, there must be a material alteration in a term, condition or privilege of employment.

The Court rejected the dissenting judge’s view that an “adverse employment action” was not essential, as having relied on dicta “of the weakest sort”, which it viewed as contrary to the weight of authority on this subject. The majority further concluded that the record showed Plaintiff had permission to continue to perform her job with some minor inconveniences or alterations in how she performed the work, but that she declined to do so, and insisted on more substantial accommodations. The Court thus held that the “inconveniences and minor alterations” of job responsibilities required of the plaintiff did not rise to the level of an adverse employment action  

This ruling from the Tenth Circuit ups the ante for plaintiffs asserting a failure to accommodate claim. There must be a material and significant impact on the employee. Inconveniences and minor alterations of job responsibilities will not suffice.