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Failure to Accommodate an Employee’s Disability May Not Support a Discrimination Claim Under the ADA
In October 2018, a three-judge panel at the Tenth Circuit clarified that an employee cannot sue its employer merely for failing to provide a reasonable accommodation under the Americans with Disabilities Act. Now the court is going to take another look at that ruling.
Laurie Exby-Stolley, a county health inspector in Colorado, sued her employer for disability discrimination on the theory that it failed to accommodate her disability. She had broken her dominant right arm at work and had undergone two corrective surgeries, but the injury still impacted her ability to perform tasks like lifting, moving, or opening objects or writing. These difficulties prevented Exby-Stolley from keeping up with her workload. Her doctor ultimately identified several permanent restrictions that prevented Exby-Stolley from performing the inspector duties.
Over the course of several months, Exby-Stolley and her employer discussed various accommodations. At first, Exby-Stolley moved into a part-time office job that was within her restrictions, but she did not enjoy it. She claimed at trial to have proposed many other potential accommodations that would allow her to work as an inspector or in other roles, but the County rejected all of her suggestions without offering any alternatives. According to the County, the only accommodation Exby-Stolley requested was that the County create a new position for her, cobbling together light-duty tasks from various different jobs. The ADA does not require employers to create new positions as a reasonable accommodation, but the County indicated it would continue to look for other existing job opportunities within the County to accommodate Exby-Stolley, a process that could take up to eight months, given her restrictions. Dissatisfied with the County’s response, Exby-Stolley resigned and sued the County for failing to accommodate her.
At trial, the court instructed the jury that Exby-Stolley could not prevail on her failure to accommodate claim unless she proved that she suffered an “adverse employment action” separate from the failure to accommodate itself. The jury found in favor of the County, and Exby-Stolley appealed to the Tenth Circuit (which also covers Kansas), arguing that the court should not have required her to prove an adverse employment action.
Last fall, the Tenth Circuit ruled that the jury was properly instructed based on the language of the ADA. The statute says:
(a) No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
(b) As used in [subsection (a)], the term “discriminate against a qualified individual on the basis of disability” includes—
. . . .
not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.
42 U.S.C. § 12112.
The Tenth Circuit explained that liability under section (a) consists of two elements, both of which an ADA plaintiff has to prove. First, the plaintiff must prove the defendant discriminated against her on the basis of a disability. While this can be shown, for example, where an employer treats an employee with a disability worse than it treats employees without disabilities, section (b) defines other circumstances in which discrimination “on the basis of disability” can occur. This includes when an employer fails to make a reasonable accommodation (regardless of whether the employer makes accommodations for obstacles faced by employees without a disability). 
Second, the plaintiff separately must prove under section (a) that the discrimination was “in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” Summarizing cases from around the country in the ADA and other contexts, the court explained employer actions that impact the various terms, conditions, and privileges of employment contemplated by the statute are commonly referred to in judicial shorthand as “adverse employment actions”—even though that term is not used anywhere in the ADA.
Based on that reading of Section 12112, the Tenth Circuit concluded that the district court had properly instructed the jury that Exby-Stolley had to prove a failure to accommodate (an act of discrimination on the basis of a disability) and an adverse employment action (an act “in regards to” a term, condition, or privilege of employment).
The Tenth Circuit further reasoned that the County did not do anything negative to Exby-Stolley and was still planning to continue to look for ways to accommodate her until she resigned, meaning it had not taken any adverse action against her. The court suggested other hypothetical situations where an employer might commit a discriminatory act by failing to accommodate an employee, without taking an adverse employment action. It suggested, for example, that an employer might deny a wheelchair bound employee’s request, merely because it would be more convenient to move to an office a few feet closer to an entrance, but subjecting the employee to a “mere inconvenience” would not be, under the ADA, an adverse employment action.
At the same time, the court cautioned that its ruling would not bar all failure-to-accommodate claims. In fact, it observed that most failure-to-hire lawsuits involve an adverse action, such as the termination of an employee or failure to hire an applicant after the employer failed to accommodate the employee’s or applicant’s disability.
Still dissatisfied with the Court’s ruling, Exby-Stolley requested the Tenth Circuit revisit its decision en banc. Rather than having her case decided just by a panel of three appellate judges, in an en banc decision, all the Tenth Circuit appellate judges hear and decide the case together. Last December, the Tenth Circuit granted Exby-Stolley’s request for an en banc review, which automatically vacates the prior panel ruling. The court specifically asked the parties to address whether an adverse employment action is a required element of a failure to accommodate claim under the ADA.
Pending the en banc decision—which could still reach the same decision as the panel or could reach the opposite conclusion—employers in Kansas are left without any guidance from the Courts on this issue. So, stay tuned later this year to see how this case turns out!

Reasonable accommodation issues and an employer’s duty to accommodate are very fact-specific. If you have questions about accommodation issues in your workplace, reach out to your legal counsel to navigate the pitfalls. 

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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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