Adverse Employment Actions in Failure-to-Accommodate Claims: Much Ado About Nothing
NYU L. Rev. Online, 2019
24 Pages Posted: 23 Sep 2019
Date Written: August 23, 2019
Abstract
This essay uses a recent Tenth Circuit case to explore and explain courts' confusion about the reasonable accommodation obligation under the Americans with Disabilities Act. Here is the issue: Employees generally bring two types of claims against their employers — discrimination claims and failure-to-accommodate claims. Succeeding on a discrimination claim requires proving an adverse employment action. Failure-to-accommodate claims do not. But several courts — including the Tenth Circuit — have added this adverse-employment-action requirement into failure-to-accommodate claims. And doing so obscures important issues about an employer’s obligation to provide a reasonable accommodation. This essay’s contribution is not to take a side on the circuit split about whether a failure-to-accommodate claim requires proof of an adverse employment action (though I do not think it does). It instead reveals how courts have obscured and confused broader disability-accommodation issues by imposing that requirement.
Keywords: disability, ADA, discrimination, reasonable accommodation, employment
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