Adverse Employment Action Required for Failure-to-Accommodate Claims

In order to bring a failure-to-accommodate claim under the Americans with Disabilities Act, a plaintiff must establish that she suffered an adverse employment action, according to the U.S. Court of Appeals for the Tenth Circuit.

In Exby-Stolley v. Bd. Of County Commissioners, Weld County, Colorado, the Tenth Circuit noted that the failure to provide reasonable accommodation is a form of discrimination under the ADA, and an employee must establish an adverse employment action in order to sustain a discrimination claim. Under the ADA, an adverse employment action is related to “job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” The Tenth Circuit rejected the plaintiff’s argument that a failure to accommodate is itself an adverse employment action, instead holding that there must be a material alteration in a term, condition or privilege of employment.

This holding, in which the Tenth Circuit joins the Eighth and D.C. Circuits, raises the bar for plaintiffs asserting a failure to accommodate. In keeping with common sense, they must establish that there was a significant negative impact on a term, condition or privilege of employment – and not just a mere inconvenience.