Divided 10th Circuit clarifies elements of ADA claim

Almost two years ago, we told you a three-judge panel of the 10th Circuit (which covers Kansas and Oklahoma employers) had ruled employees can't sue the employer for failing to provide a reasonable accommodation under the Americans with Disabilities Act (ADA) unless they can prove some additional adverse employment action (see "County's failure to accommodate may not be enough to prove ADA claim," Kansas Employment Law Letter, April 2019). The full 10th Circuit recently revisited the ruling, however, and in a 7-5 split, it rejected the adverse-action element.

Facts

Laurie Exby-Stolley, a county health inspector in Colorado, sued her employer for disability discrimination on the grounds it had failed to provide her with a reasonable accommodation. At trial, the judge instructed the jury that she couldn't prevail on the failure-to-accommodate claim unless she also proved she suffered an "adverse employment action."

Exby-Stolley lost the trial but appealed the jury instruction, which the 10th Circuit panel affirmed (2-1). She then appealed to the full court.

ADA language in dispute

The 10th Circuit was asked to determine whether the ADA requires an "adverse employment action" element in the failure-to-accommodate context. The dispute turns on the statute's language, which reads:

(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.