Weld County has asked the U.S. Supreme Court to review a decision it narrowly lost last year on appeal, which allowed a former employee to sue the jurisdiction for failing to accommodate her disability.

Following a rare hearing involving all judges on the U.S. Court of Appeals for the 10th Circuit, a 7-6 decision in October gave Laurie Exby-Stolley the authorization to sue the county for allegedly violating the Americans with Disabilities Act, even though it had not taken any adverse action against her employment. The majority of judges concluded an employee need not be terminated or demoted to have a claim against their workplace for failing to reasonably accommodate them.

“There is substantial disagreement among the lower courts regarding the elements of an ADA failure-to-accommodate claim,” Weld County’s attorneys wrote to the Supreme Court. “This Court’s review is urgently needed to bring clarity.”

The justices have not yet decided whether they will hear the case in the Court’s next term.

Exby-Stolley worked for the county as a health inspector, but broke her right arm on the job in 2009. As a result, she took longer to perform inspections and required the use of assistive devices. There was a dispute about the extent to which Weld County accommodated her disability, and whether Exby-Stolley resigned voluntarily or was forced out.

Under the ADA, employers must interact with a disabled employee to settle on reasonable accommodations, which could include modified work schedules, reassignment or using adaptive equipment. To have a claim under the law, a worker must suffer discrimination in a way that affects the terms, conditions or privileges of their employment. Whether that language necessarily refers to a firing, demotion or other adverse action is disputed.

After suing the county pursuant to the ADA, a jury found she had not proven she was discharged or otherwise experienced an adverse action as a result of her disability. A three-judge panel of the 10th Circuit agreed 2-1 that the trial court had instructed the jury appropriately, but Exby-Stolley asked for and received an “en banc” hearing before the entirety of the 10th Circuit’s membership.

A majority of appellate judges reversed the panel, finding it made little sense for Congress to require employers to accommodate disabled workers if those workers had to wait until they were fired to take legal action.

“Adopting such a construction of the statute would have the effect of significantly restricting the scope of the ADA’s reasonable-accommodation obligation through the use of language (i.e., ‘adverse employment action’) that does not even appear in the statute’s text,” wrote Judge Jerome A. Holmes for the majority.

“Congress did not intend to create a ‘super’ human resources department,” Judge Carolyn B. McHugh fired back on behalf of the six-member minority.

In its appeal, Weld County argued that the 13 federal circuit courts of appeals are near-evenly split on the question of whether a failure-to-accommodate claim requires an adverse employment action. Employers, the jurisdiction said, need to know how to comply with the law, and workers similarly deserve clarity about how to secure their rights under the ADA.

“[T]he denial of an accommodation must adversely affect the employee’s conditions and privileges of employment, not just withhold something the employee would prefer to have,” the county maintained.

Exby-Stolley urged the Supreme Court not to hear the appeal, arguing there was not nearly as much disagreement among the appellate courts as Weld County claimed. Not making an ADA-related accommodation, she contended, is enough to infringe upon the terms and conditions of employment.

There is also a possibly, wrote her attorney, Jason Wesoky, that during the new trial, a jury could hear her allegations of being forced to resign due to a lack of accommodation, known as a constructive discharge. If so, there would be no need to hear Weld County’s appeal “because the County agrees, as it must, that discharge is an ‘adverse employment action.'”

The case is Board of County Commissioners v. Exby-Stolley.