Employers May Be Liable for Disability Discrimination Claims Even If the Employee Suffers No Adverse Action Such as Firing or Demotion
This week, the United States Court of Appeals for the Tenth CircuitFN1 clarified that employees may sue their employer under the Americans with Disabilities Act (“ADA”) for failing to accommodate their disability, even if the employee was not subject to an adverse action such as firing or demotion.FN2 Thus, an employer may be liable for violating the ADA if it fails to reasonably accommodate an employee’s request or does not demonstrate that the request is unduly burdensome, even though the employee is not fired or demoted.
In the underlying case, the plaintiff, a former health inspector in Weld County, Colorado, sued her former employer, contending that it violated the ADA by failing to accommodate her disability after she informed her employer of her physical limitations resulting from a broken arm she sustained on-the-job, which prevented her from timely and adequately completing the required number of inspections.FN3 Although the plaintiff proposed various accommodations, such as reassigning tasks from other employees or creating a new position for her, she claimed that the employer refused to accommodate her and she was compelled to resign. Her employer argued that it was working to find alternatives for the plaintiff, such as transferring her to another department or position when one became available.
At trial, a jury decided that because the employee was not fired and did not suffer any other adverse action from her employer, she was precluded from recovery. However, in a 7-6 en banc decision, the Tenth Circuit Court of Appeals, found that the ADA does not require an employee to prove that she suffered an adverse action to prevail on a failure to accommodate claim. Instead, an employee-plaintiff need only prove that (1) she is disabled within the meaning of the ADA; (2) she is qualified to perform the essential functions of the job with or without a reasonable accommodation; and (3) she was discriminated against because of her disability.FN4 To satisfy the discrimination element in the failure to accommodate context, an employee only needs to show that her employer had adequate notice of her need for a reasonable accommodation and that her employer failed to offer a reasonable accommodation.FN5
Takeaway
In light of the Tenth Circuit’s ruling, employers should ensure that their policies and protocols for employees to request a reasonable accommodation are clear and up to date. Employers should be aware that they may face liability for failing to accommodate an employee’s reasonable requests or by failing to demonstrate that an employee’s requests would be unduly burdensome to the employer’s business—even if the employee is not demoted or discharged. Employers are encouraged, and required, to engage in a meaningful dialogue with employees who request an accommodation. Contact the attorneys at Campbell Litigation, P.C. for inquiries regarding the interactive process and accommodation requests to ensure compliance with discrimination laws.
Footnotes:
FN1: The Tenth Circuit includes Colorado, Utah, Kansas, New Mexico and Wyoming.
FN2: LAURIE EXBY-STOLLEY, Pl. - Appellant, v. BOARD OF COUNTY COMMISSIONERS, WELD COUNTY, COLORADO, Def. - Appellee. UNITED STATES OF AMERICA; COLORADO PLAINTIFF EMPLOYMENT LAWYERS ASSOCIATION; NATIONAL DISABILITY RIGHTS NETWORK; NATIONAL EMPLOYMENT LAWYERS ASSOCIATION, Amici Curiae., 16-1412, 2020 WL 6304349, at *6 (10th Cir. Oct. 28, 2020).
FN3: Id. at *1.
FN4: Id. at *6.
FN5: Id.