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No Adverse Action Necessary for Failure to Accommodate Claim

Employees need not prove that they suffered an adverse employment action to prevail on a claim against an employer for failure to accommodate under the Americans with Disabilities Act (ADA), according to the Tenth Circuit Court of Appeals.

Laurie Exby-Stolley worked as an inspector for the Weld County Department of Public Health and Environment (County). She broke her dominant right arm during one of her work shifts. After receiving medical treatment, she did not regain full use of her arm. The parties presented divergent accounts of the accommodation process. Stolley claimed she resigned from her employment after the County failed to accommodate her disability.

At trial, the jury instructions required the jury to determine whether the County fired Stolley or subjected her to other “adverse employment action.” She lost the trial because the jury found that the County did not subject her to an adverse employment action. Courts define adverse employment action as “serious and tangible enough to alter an employee’s compensation, terms, conditions, or privileges of employment.”

The Tenth Circuit Court of Appeals found the trial court’s instruction at odds with circuit precedent, guidance from the Equal Employment Opportunity Commission, and other circuit court decisions. In reaching its decision, the Tenth Circuit differentiated failure to accommodate claims and disparate treatment claims. In disparate treatment claims, employees charge employers with discriminatory acts. An ADA failure to accommodate claim addresses an employer’s failure to act, thus making it illogical to require an adverse employment action to state a claim. Notably, two circuits consider the failure to reasonably accommodate an adverse employment action.