No Adverse Employment Action Is Required for a Failure to Accommodate Claim.


In a classic discrimination case, the employee must show that they experienced an adverse employment action – but this is not required in a failure to accommodate claim under the Americans with Disabilities Act, according to the U.S. Court of Appeals for the Tenth Circuit.

In Exby-Stolley v. Bd. of County Commissioners, the full court revisited the decision of a three-judge panel affirming a district court determination that an adverse action was required for a failure to accommodate claim, and this time reversed the district court’s decision. Noting that reasonable accommodation is an affirmative obligation under the ADA, the Tenth Circuit found that “it would verge on the illogical to require failure-to-accommodate plaintiffs to establish that their employer acted adversely toward them—when the fundamental nature of the claim is that the employer failed to act.” (Emphasis in original). This is contrasted with a disparate treatment discrimination claim, which is based on discrimination actions by the employer.

The Tenth Circuit held that an adverse action requirement would frustrate the remedial purpose of the ADA to promote full participation and equal opportunity “to attain the same level of performance, or to enjoy the same level of benefits and privileges of employment as are available to the average similarly situated employee without a disability.” The Tenth Circuit also noted that its approach is consistent with that of the Equal Employment Opportunity Commission, as well as multiple sister circuits.