Read The Statute: Tenth Circuit Holds Claim For Failure To Accommodate Requires An Adverse Employment Action
By: Don Samuels
In Exby-Stolley v. Board of County Commissioners, No. 16-1412, 2018 WL 4926197 (10th Cir. Oct. 11, 2018), the Tenth Circuit Court of Appeals held that for an individual to succeed on a failure to accommodate claim under the Americans with Disabilities Act (“ADA”), he or she must establish an adverse employment action, i.e., one that materially adversely affects the terms, conditions, or privileges of employment. See 42 U.S.C. §12112(a).
When reaching its decision, the Tenth Circuit relied on two principles: first, read the statutory language and second, do not rely on dictum.
Analyzing the ADA, the Court first reviewed the language in 42 U.S.C. § 12112(a), which states:
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.
The Court then noted that subsection (b) states 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.” 42 U.S.C. § 12112(b)(5)(A).
Based on the plain meaning of the statute, the Tenth Circuit concluded that failure to make a reasonable accommodation was a type of discrimination which, to be actionable, must be “in regard to” an adverse employment action.
Rejecting the cases cited by the dissent, the majority opinion relied on another familiar principle: courts are not bound by dicta, which are “statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case at hand.”
To employers, the case is important in that, at least under federal law in the Tenth Circuit, for an employee to have an actionable failure-to-accommodate claim, he or she must prove the failure to accommodate resulted in an adverse employment action.