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In a rare decision involving all judges, the U.S. Court of Appeals for the 10th Circuit has ruled 7-6 that a worker may sue their employer under the Americans with Disabilities Act for failing to accommodate their disability, regardless of whether the employer took an adverse action such as firing or demotion.

”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.

Despite the narrowness of the vote, Jason Wesoky, an attorney representing plaintiff Laurie Exby-Stolley, did not see a need to ask the U.S. Supreme Court to weigh in further.

"As the majority correctly and thoroughly points out, this opinion is consistent with every other circuit court that has actually spent time analyzing the issue," he said.

Exby-Stolley sued Weld County in 2013, alleging the jurisdiction discriminated against her for her disability. While working as a health inspector, she broke her arm in 2009. Exby-Stolley required two surgeries and prolonged treatment, needing to use devices to move, lift or open objects.

Because of these aids, she took longer to perform inspections and did not complete the number required of employees. Exby-Stolley and Weld County differed in their explanations for how the county subsequently accommodate her.

Exby-Stolley explained that the county moved her to a part-time office job, and a superior became angry when she did not want to go on disability. During a meeting with a human resources analyst and her supervisor, they rejected Exby-Stolley’s suggestions for accommodations, and one finally asked her if she wanted to draft her own letter of resignation or have them do it for her.

Various other employees, however, testified the county did try to devise ways of accommodating Exby-Stolley. When she asked that the county create a new position for her, reassigning tasks from other employees, it was not possible to do so. Exby-Stolley then reportedly said during the meeting she would resign.

Patricia Russell, the head of the human resources department, indicated that prior to the June 19, 2012 meeting where Exby-Stolley’s resignation became an issue, “We were still talking to the department to figure out what accommodations could be made....[W]hat accommodations could we make in the county, in another department, other positions coming open where we could place her...and she could be successful.”

A question of adverse action

During a trial in which Exby-Stolley alleged the county violated the ADA by failing to find accommodations and terminating her because of her disability, a jury decided she had not suffered a discharge or other adverse action from her employer.

A three-member panel of the circuit court decided by 2-1 in October 2018 to uphold the jury’s verdict.

“True, the language ‘adverse employment action’ does not appear in the ADA,” conceded Judge Harris L. Hartz, calling the phrase “shorthand.” Instead, the ADA required plaintiffs to prove an employer’s action altered the terms or conditions of employment. 

The majority pointed to county employees' testimony about their efforts to accommodate Exby-Stolley, agreeing that an inability to “immediately accommodate” a disabled employee’s request was not adverse action.

Exby-Stolley appealed to the entire bench of 12 active judges, plus Senior Judge Paul J. Kelly, Jr. The practice is called an “en banc” review and is highly unusual: between October 2018 and September 2019, there was only one case out of more than 1,100 that the 10th Circuit heard en banc.

The U.S. Department of Justice filed a brief in support of Exby-Stolley’s interpretation of the ADA. Arguing that the reasonable accommodation requirement served to “further the full and equal integration of persons with disabilities into the workforce,” the Justice Department wrote that terms and conditions of employment could be relatively minor, such as work schedules, worksite locations and access to workplace facilities or equipment.

The National Disability Rights Network and two attorney associations also submitted statements in favor of Exby-Stolley.

The en banc hearing served to answer the question of whether the trial court judge correctly instructed the jury that it had to find an adverse employment action against Exby-Stolley to hold Weld County liable for discrimination. The answer was no.

In finding the instruction to be incorrect, Holmes wrote that the trial court “effectively added language to the ADA’s plain text.” Holmes, who authored the opinion for the seven-member majority, was formerly the lone dissenting vote on the prior appeals panel.

Nothing written in statute

The majority appeared to agree with Wesoky, Exby-Stolley's lawyer, who argued before the judges that "nothing in the ADA requires that the employee not be reasonably accommodated — and be terminated or demoted — before they can enforce that right to receiving an accommodation."

The majority opinion explained that the ADA placed an obligation on employers to make reasonable accommodations. The landmark 1990 law was designed to promote full participation and equality of opportunity for individuals with disabilities. It would be unrealistic, in their view, for Congress to issue such a mandate but only require consequences if an employer went so far as to fire a worker.

The confusion, Holmes wrote, likely stemmed from other claims under the ADA that require demonstrating an employer acted in a discriminatory fashion. But for a failure-to-accommodate claim, the question is not how an employer acted, but what they neglected to do. Without an accommodation, if a worker could not attain the same performance level as their non-disabled peer, the ADA is meant to provide a remedy.

Guidance from the U.S. Equal Employment Opportunity Commission advises employers that once a disabled employee demonstrates that the accommodation needed is reasonable, the employer carries the burden of proving such an adjustment is a hardship. Investigators are instructed to consider the purpose for the employee requesting the accommodation, what the reasonable alternatives were and whether the employer collaborated with the employee. 

Nowhere is there a mention of adverse actions against the worker. Further, the court wrote, adverse employment action was not “shorthand” — as the appellate panel asserted originally — for altered terms of employment.

"The issue simply was not raised by any party to a 10th Circuit appeal until this case," attorney Alan Epstein argued to the court on behalf of Weld County. "Either it was undisputed that there was an adverse employment action, or the plaintiff failed to establish some other element of a failure to accommodate."

"Or it was undisputed that adverse employment action is not an element of a failure-to-accommodate case, which is why it didn't come up," interrupted Holmes. 

"Super" human resources

Judge Carolyn B. McHugh, dissenting for the court’s minority, did not believe a minimal change in employment status merited a finding of discrimination.

“Congress did not intend to create a ‘super’ human resources department to dictate employer conduct irrespective of its impact,” she wrote. “Unlike the majority, I do not believe Congress, by passing the ADA, intended to micromanage employment decisions.”

McHugh countered that if a disabled employee both produced lower output and had their pay cut accordingly, that would suffice as a claim under the ADA. Similarly, if other coworkers resented the disabled employee and made the workplace hostile, that would likewise change the conditions of employment. 

Unless the failure to accommodate was “sufficiently severe or pervasive to alter” the employment terms, the adverse action need not rise to the level of firing, but it must be more than “a mere inconvenience.” 

The minority added that it felt the jury instruction was correct, and the jury simply had not believed the county had fired Exby-Stolley.

Chris Hinds, a Denver city councilman who uses a wheelchair, identified with the experience of workplace discrimination. He described a former employer who moved into a building without an accessible restroom. Human resources assured him that the stalls were ADA compliant — even though he had multiple accidents as a result of inaccessible toilets.

"The building also happened to house the Denver [Department of Justice] office — including their very small civil rights unit — and I happened to ask one of their employees about it at the coffee shop on the ground floor," Hinds said. After requesting a modified restroom, he said his boss told him, "my request was a 'career limiting move' and that I should look outside the company if I ever wanted anything more."

In that vein, Holmes, near the end of oral argument, described to the defense a hypothetical example of a blind law clerk asking for a reading aid and rejecting her request.

"I have impaired her ability to fulfill her potential in that job, haven't I?" asked Holmes.

"I agree," Epstein acknowledged.

"And the statute protects exactly against that phenomenon?"

"It does," said Epstein.

The court ordered a new trial for Exby-Stolley.

Judges in the majority included Holmes; Mary Beck Briscoe; Carlos F. Lucero; Scott M. Matheson, Jr.; Robert E. Bacharach; Gregory A. Phillips; and Nancy L. Moritz.

Dissenting judges included McHugh; Hartz; Kelly; Allison H. Eid; Joel M. Carson; and Chief Judge Timothy M. Tymkovich.

The case is Exby-Stolley v. Weld County.

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