Tenth Circuit: ADA Accommodation Violation Does Not Require Adverse Employment Action

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October 28, 2020

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In Exby-Stolley v. Bd. of Cty. Comm’rs, the Tenth Circuit Court of Appeal stated that failing to accommodate a disability under the Americans with Disabilities Act (ADA) is in and of itself grounds for a cause of action and does not require an “adverse employment action.” This is distinguishable from a disparate treatment claim under the ADA requiring that an employer take adverse employment action because of an individual’s disability.

There, an employee broke her arm while on the job and claimed she was not appropriately accommodated in order to do her job. As a result, her performance suffered which led to her separation of employment. However, the focus of the claim was the failure to accommodate her disability, which the ADA states is unlawful discrimination.

This case reinforces employer requirements to engage in the interactive process with employees in good faith to accommodate qualifying disabilities in accordance with the ADA. This ruling further widens the split among the circuit courts on this topic, which may eventually lead to U.S. Supreme Court review.

Action Items

  1. Review interactive process procedures for compliance.
  2. Have appropriate personnel trained on the interactive process requirements.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.
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