Before starting on the blog entry of the day, if you have not already voted do so. Today’s blog entry is a case, Exby-Stolley v. Board of County Commissioners, Weld County, Colorado17918111819811820567, that I blogged on almost 2 years ago. About two years ago, the 10^th Circuit came down with a decision, which I discussed here18018211919911920668, holding that failure to accommodate claims required an adverse action. It turns out that the panel decision was reheard by the entire 10^th Circuit. On October 28, 2020, it vacated the panel decision, reversed the District Court’s judgment, and remanded for a new trial. It is a 135 page decision complete with a majority opinion and two dissenting opinions. No need to cover the facts since we discussed all of that in the previous blog entry, here18118312020012020769. So, the categories for this blog entry are: majority opinion (Judge Holmes); thoughts/takeaways on the majority opinion; dissenting opinion (Judge McHugh); thoughts/takeaways on Judge McHugh’s dissenting opinion; dissenting opinion (Judge Hartz); and thought/takeaways on Judge Hartz’s dissenting opinion). Of course, the reader is free to read any or all of the categories.

 

I

Majority Opinion Holding That a Failure to Accommodate Claim Does Not Require an Adverse Action (Judge Holmes)

 

1. The language “adverse employment action,” does not expressly appear in the plain terms of the failure to accommodate statutory provision nor in the general rule of 42 U.S.C. §1211218218412120112120870(a).
2. A court cannot add language to a statute’s plain text.
3. Requiring adverse action for failure to accommodate claims is at odds with pre-existing 10^th Circuit precedent; EEOC’s views; and regularly followed practices of all of the other Circuits.
4. Prior 10^th Circuit precedent has repeatedly and invariably talked about the prima facie case for an ADA failure to accommodate claim without mentioning adverse employment action requirements.
5. The 10^th Circuit has made clear that articulations of the prima facie case for failure to accommodate claim exhaustively details the essential elements of that claim.
6. It must be that the reason 10^th Circuit cases omit the adverse employment action element from their comprehensive statements of the prima facie case for ADA failure to accommodate claims is because no such element exist in ADA failure to accommodate claims.
7. When a cause of action requires an adverse employment action, courts are not shy to say as much.
8. Failure to accommodate claims are a freestanding claim of discrimination based upon a failure to meet an affirmative duty. Title VII has no such freestanding claim.
9. Prior cases have specifically mentioned that an adverse employment action is not an element of failure to accommodate claims when discussing other statutes where an adverse employment action was a requirement.
10. On multiple occasions, the 10^th Circuit has stated that the ADA establishes a cause of action for employees with disabilities whose employer failed to reasonably accommodate them. That general statement says nothing about the need for employees with disabilities to also demonstrate an adverse employment action before their failure to accommodate claim will be viable.
11. The duty to make reasonable accommodations is an affirmative unvarnished obligation of the employer. Accordingly, it is hard to imagine that a federal statute placing an affirmative or unvarnished obligation on the employer would allow the employer to escape consequences for breaching that obligation so long as that employer does not take some additional adverse action. Accordingly, the court is disinclined to read the ADA in such an unnatural manner.
12. In prior discussions of the overarching feature of the ADA discrimination claim, the 10^th Circuit has made clear that an ADA failure to accommodate claim does not contain adverse employment action requirements.
13. Prior 10^th Circuit cases have made clear that in failure to accommodate claims as soon as the employer with adequate notice of the employee with a disability request for some accommodation failed to provide a reasonable accommodation, that is the point in time where the employer has discriminated against an individual with a disability because of his or her disability.
14. So, 10^th Circuit precedent is such that once a plaintiff has established an employer’s failure to reasonably accommodate the disability, plaintiff does not need to go further and establish they also suffered an adverse employment action.
15. Disparate treatment claims and failure to accommodate claims are two different kettles of fish. Disparate treatment claims do require an adverse action but failure to accommodate claims do not because the two types of claims are very different from each other. In disparate treatment claims the allegation is that the employer acted. On the other hand, in failure to accommodate claims, the allegation is the employer failed to act.
16. The ADA’s reasonable accommodation mandate focuses on compelling behavior rather than policing an employer’s actions. Accordingly, it makes little sense to require the showing of an adverse employment action as part of a failure to accommodate claim. That is, it verges on the illogical to require failure to accommodate plaintiffs to establish their employer acted adversely toward them when the fundamental nature of the claim is that the employer failed to act.
17. Since failure to accommodate claims concern discrimination in the form of a failure to meet an affirmative obligation, there is no action that must be shown to have been taken with any particular intent. That is, once an employee makes an adequate request for an accommodation thereby putting the employer on notice, an employer’s failure to offer reasonable accommodation to a qualified person with a disability is unlawful discrimination regardless of whether the employer had any intent to do so.
18. Introducing an adverse employment action requirement into an ADA failure to accommodate claim would significantly frustrate the ADA’s remedial purposes.
19. The purpose of the ADA to promote full participation and equal opportunity for people with disabilities are effectuated in meaningful part by the affirmative obligation the ADA imposes on employers to make a reasonable accommodation.
20. The ADA requires preferences in the form of reasonable accommodations needed for those with disabilities to obtain the same workplace opportunity as those without disabilities automatically enjoy.
21. The reasonable accommodation requirement is best understood as a means by which the barriers to the equal employment opportunity of an individual with a disability are removed or alleviated.
22. Reasonable accommodations provide the individual with disabilities an equal employment opportunity. Equal employment opportunity means the opportunity to attain the same level of performance or to enjoy the same level of benefits and privileges of employment as are available to the average similarly situated employee without a disability.
23. The purposes and the ability of the ADA’s reasonable accommodation mandate to promote disability inclusion would be significantly frustrated by including an adverse employment action as a necessary element of a failure to accommodate claim. That is, it would allow for employers not being held accountable for failing to reasonably accommodate their employees with disabilities so long as an adverse employment action was also not involved. How could the ADA’s reasonable accommodation mandate meaningfully ensure that qualified individuals with disabilities denied a reasonable accommodation obtain the same workplace opportunity as those with disabilities automatically enjoy and enjoy the same level of benefits and privileges of employment as people without disabilities, if the statute mandates that such individuals only get a remedy when their employers have also subjected them to an adverse employment action. The very asking of the question is the answer of it. The answer is simply no. The ADA could not meaningfully effectuate its full participation and equal opportunity purposes with an adverse employment action requirement.
24. Imagine a judge of the 10^th Circuit (emphasis mine), hires a blind law clerk who can with without accommodations can only write two draft judicial opinion per month. Also, assume that the widely accepted standard for a successful law clerk is one who can write three draft judicial opinions per month and the blind law clerk can reach that level with the help of a reasonable accommodation. Also assume that a qualified low-wage personal reader would constitute a reasonable accommodation under the ADA and that such a reader would not impose an undue hardship on the office operations of the blind law clerk’s employer. Further, imagine that the judge denies the blind law clerk’s request for this assumed reasonable modification and refuses to discuss any other possible reasonable accommodation by telling the law clerk that drafting two opinions per month will be just fine even though the other judge’s law clerk regularly meet the three opinion monthly target. Such an employee has suffered no adverse employment action and would not have a claim if an adverse employment action requirement was layered onto failure to accommodate claims. That doesn’t make any sense because that law clerk would not be a full participant or fully included in a service, program, or activity because they cannot utilize the program, service, or activity in a similar way as person without disabilities. Further, that law clerk has been prevented from competing on an equal basis with their fellow law clerk who do not have disabilities and enjoying the same level or privileges of employment as those law clerks. The court is simply unwilling to adopt a reading of the ADA’s failure to accommodate mandate that yields such a result.
25. An interpretation of the ADA’s failure to accommodate claims that would permit a result where an employee is denied an opportunity to compete on an equal basis with her fellow employees and pursue those opportunity for which America is justifiably famous is a result to be avoided.
26. The unvarnished obligation to accommodate a qualified person with the disability makes any adverse employment action irrelevant.
27. The ADA is not simply concerned with shielding individuals with disabilities from significant workplace harms but also with reasonably accommodating limitations of their disabilities so they may provide the nation with the benefit of their consequently increased productivity.
28. The ADA’s objective is to ensure that qualified individuals with disabilities are placed on equal grounds with other employees in regards to the covered employment relationship.
29. In the 10^th Circuit, a person with a disability has a right to a reassignment rather than the right to be considered for a reassignment where the employee is no longer able to do the original job with or without reasonable accommodations. Requiring an adverse action would make a mockery of the right to reassignment cases.
30. The ADA simply cannot be read to require that employees with disabilities are only allowed to receive accommodations if they also suffer an adverse employment action. Such a construction of the statute significantly restricts the scope of the ADA’s reasonable accommodation obligation through the use of language (adverse employment action), that does not even appear in the statute’s text.
31. The EEOC has also made it clear that failure to accommodate claims do not require an adverse action.
32. 29 C.F.R. §1630.918318512220212220971(a) not only omits any mention of an adverse employment action component but also implicitly rejects by this omission the notion that such a component of failure to accommodate claims even exists.
33. Indeed, absent an undue hardship, the regulation explains that a covered entity violates the ADA by not reasonably accommodating an employee with a disability. Full stop (court’s words).
34. EEOC regulations implementing title I of the ADA are entitled to a great deal of deference.
35. EEOC’s interpretive guidance on the ADA are a body of experience and informed judgment to which courts and litigants may properly resort to for guidance. Those guidances omit any mention of an adverse employment action requirement for ADA failure to accommodate claims.
36. Nowhere in the EEOC’s interpretive guidance extensive discussion of reasonable accommodation claims is there any discussion of reasonable accommodation claims requiring some form of an adverse employment action.
37. The EEOC notes in its enforcement guidance that the duty to provide reasonable accommodations is a fundamental statutory requirement.
38. When the EEOC in it guidances discusses the burdens of proof, nowhere is there any mention of the employee needing to show an adverse employment action before the proof burden shifts to the employer.
39. In the instruction for investigator section of the EEOC guidance, an extensive set of questions investigator should inquire into while assessing whether an employee has violated the ADA by denying a reasonable accommodation is discussed. However, none of those questions relate to an adverse employment action.
40. None of the other Circuits have regularly incorporated an adverse employment action requirement into ADA failure to accommodate claims. That is, either the Circuits have declined to incorporate an adverse employment action requirement into an ADA failure to accommodate claim or they have incorporated such a requirement in name only because the failure to accommodate is an adverse action in and of itself.
41. The First, Fourth, Fifth, Sixth, 11^th, and the D.C. Circuit either state or strongly suggest that no adverse employment action requirement in ADA failure to accommodation claims exist.
42. The Third and the Eighth Circuits have an adverse employment action requirement into their failure to accommodate claims. However, that is in name only because a failure to accommodate is an adverse action. Cases suggesting that an adverse employment action is an additional requirement for failure to accommodate claims, including one-Samper- that we discussed here18418612320312321072 on a separate issue, are outliers.
43. The incorporation of 42 U.S.C. §12112(a)’s terms, conditions, and privileges employment language into an ADA failure to accommodate claim is unnecessary because a failure to accommodate claim necessarily implicates and provides particularized concrete expression of terms, conditions, and privileges of employment language. In other words, a failure to accommodate claim as a matter of logic and common sense necessarily involves a qualified person with a disability terms, condition, and privileges of employment. So, it is simply unnecessary for court to expressly incorporate terms, conditions, and privileges of employment language into an ADA failure to accommodate claim.
44. Adverse employment action as understood by precedent is not the same thing as terms, conditions, and privileges of employment.
45. Even if a court desired to take into account terms, conditions, and probative of employment language of §12112(a) in failure to accommodate claims, that is not the same thing as imposing an adverse employment action requirement.
46. 42 U.S.C. §1211218518712420412421173(b) is inextricably intertwined with 42 U.S.C. §12112(a)’s general rule because it underscores that a covered employer cannot discriminate against a qualified individual on the basis of disability while at the same time particularrizing and making concrete what that means through examples of what is prohibited disability discrimination in the employment context.
47. 42 U.S.C. §12112(b) enumerated examples give concrete expression to areas of discriminatory conduct against qualified individuals with disabilities referenced in 42 U.S.C. §12112(a). As such, those example necessarily are in regard to those individual terms, conditions, and privileges of employment.
48. Terms, conditions, and privileges of employment are part and parcel of any ADA failure to accommodate claim. Accordingly, expressly incorporating that language into failure to accommodate claims is unnecessary.
49. Terms, conditions, and privileges of employment language in title VII serve to combat the entire spectrum of workplace discrimination. A Supreme Court decision saying as much was decided fully five years before the ADA came into effect. Accordingly, Congress is presumed to know what the phrase meant when it passed the law.
50. The court is simply unwilling to equate language signaling the expansive sweep of the ADA’s employment related antidiscrimination mandate with an adverse employment action.
51. Undue hardship is an affirmative defense.

 

II

Thoughts/Takeaways on Majority Opinion

 

1. It is absolutely and completely strange to me that both the majority opinion and the dissent argued over the ADA’s applicability to a failure to accommodate a federal law clerk’s disability because neither the ADA nor the Rehabilitation Act of 1973 applies to the federal courts. I am at a loss as to how such a mistake could be made. The majority discussion of this hypothetical also impose its title II language (“program, services, and activities)”, onto a title I case, which I also find odd. Title I and title II have very different statutory provisions, final implementing regulations, guidances, and two different agencies implementing the ADA.
2. Failure to accommodate is a separate cause of action under the ADA. That statement has significant implications for claims focusing on the interactive process because a failure to accommodate pretty much presumes a failure of the interactive process or the lack thereof.
3. Undue burden is an affirmative defense.
4. The possible ADA claims in a particular case are: disparate treatment; disparate impact; and failure to accommodate.
5. If there a Circuit Court split? The majority opinion by talking about how an adverse action is an element in some Circuits in name only may be an attempt to get around a Circuit Court split. I am not sure how they get around Samper.
6. Even though Samper is an outlier with respect to the prima facie elements of a failure to accommodate claim, I still really like the case with respect to trying to figure out whether attendance is an essential element of the job.
7. What will the Supreme Court do? At Justice Barrett’s confirmation hearing, a blind attorney talked about how critical it was for her to have Justice Barrett help her navigate the law school’s reasonable accommodation process. Accordingly, Justice Barrett may be very attuned to how the failure to accommodate to a person with a disability is itself an adverse action.
8. The ADA is an equal opportunity driven statute. I have always liked the starting line analogy. That is, it is up to the covered entity to get the person with the disability to the same starting line as those without disabilities. After that, it is up to the person with a disability to demonstrate what he or she can do.
9. The 10^th Circuit is one of those jurisdictions where a person no longer qualified to do his current job has the right to be reassigned to another.
10. EEOC final regulations get Chevron deference. That doesn’t surprise me in light of Chevron v. Echazabal18618812520512521274.
11. Essentially the majority opinion offers two ways for a court to say that an additional adverse action is not required in failure to accommodate cases: 1) the scheme of the ADA and its provisions; and 2) a failure to accommodate is an adverse action by itself.
12. In light of Kisor v. Wilkie, discussed here18718912620612621375, it will be interesting to see how much deference the EEOC guidances mentioned in the majority opinion receive.

 

III

Judge McHugh’s Dissenting Opinion

 

1. The qualification that discrimination must be with regard to job application procedures, hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, condition, and privileges of employment necessarily requires an additional adverse action beyond the failure to accommodate.
2. Congress not expanding 42 U.S.C. §12112(b) when it expanded §12112(a) means that the actions in §12112(b) do not satisfy the in regard to clause.
3. The majority opinion essentially does away with the in regard to clause.
4. Prior decisions that the 10^th Circuit are bound by does not resolve the question of whether failure to accommodate claims require an additional adverse action. The one Supreme Court case dealing with failure to accommodate claims, U.S Airways Inc. v. Barnett18819012720712721476, involved in adverse employment action. So, no controlling law from the Supreme Court exist on the question.
5. While it is true that many cases often fail to expressly include an adverse employment action as an element of the prima facie case, the reasoning of those decisions make clear that an adverse employment action is an element of those claims.
6. The distinction between acting and failure to act doesn’t excuse applying the statute’s plain language.
7. A failure to act situation could easily require an adverse action.
8. Congress did not intend to create a super human resources department to dictate an employer’s conduct irrespective of its impact.
9. In most failure to accommodate cases, the failure to accommodate adversely impacts the conditions of employment.
10. That the failure to accommodate must be in regard to the terms, conditions, or privileges of employment necessarily means an adverse action has to be present.
11. With respect to the hypothetical of the law clerk, the judge’s decision to allocate work in chambers with consideration for the law clerk’s limitations is not and should not be actionable under the ADA.
12. Congress could have made all failures to accommodate actionable. However they did not do so. Instead Congress directed that only failures in regards to the terms, conditions, or privileges of employment trigger liability under the ADA.
13. The in regard to language strikes the appropriate balance between protection of employees with disabilities and deference to the business decisions of employers.
14. The in regard to language is ambiguous. Therefore, the EEOC regulations cannot be said to have provided an interpretation of that language entitled to Chevron deference.
15. The EEOC guidance documents are not entitled to any deference [Kisor] either.
16. The in regard to clause and similar language in title VII of the Civil Rights Act (Judge McHugh said the ADA was based upon that law), strongly suggest that an additional adverse action requirement is mandated.
17. The decisions requiring an adverse action in failure to accommodate cases were first on the board and therefore should be followed subsequently.
18. Title VII has failure to accommodate claims in the context of disparate treatment claims with respect to religious practices. In those situations, adverse action is required.
19. Failure to accommodate under the ADA is a freestanding discrimination claim.
20. Hostile work environment claims also require adverse employment action.
21. An adverse employment action can be a situation where there is a constructive alteration in the terms or conditions of employment.
22. The in regard to clause means that discrimination must be in regard to the employment related aspect covered by §12112(a) and must cause more than de minimus harm.
23. In the blind law clerk hypothetical, if the judge reduced the blind law clerk’s pay by one third, the failure to provide reasonable accommodation would be in regard to his or her employee compensation and would be actionable as an adverse action under the ADA. On the other hand, if the judge does not provide a reasonable accommodation but also does not take any disciplinary action against the blind clerk, the judge’s failure to provide a reasonable accommodation was not in regard to the covered aspect of employment. Similarly, if the judge terminated the blind law clerk for breaches of chamber confidentiality, then the judge has similarly has not failed to provide a reasonable accommodation in regards to employment.
24. With respect to the blind law clerk hypothetical, if a hostile work environment ensued due to the accommodation, the blind law clerk would have a claim.
25. Failure to accommodate claims should be analyzed under whether the failure to provide reasonable accommodation was sufficiently severe or pervasive to alter the terms or conditions of employment.
26. While the jury instruction was too narrow because the in regard to clause covers a significantly greater swath of employment than those reflected in tangible employment actions, that does not mean there was prejudicial error by the jury instruction.

 

IV

Thoughts/Takeaways on Judge McHugh’s Dissenting Opinion

 

1. See ¶ II 1. I don’t follow how such a glaring error is possible with respect to the applicability of the ADA and the Rehabilitation Act of 1973 to the federal judiciary. The decision does mean state courts should be on notice of the ADA’s applicability to them.
2. The ADA is not based upon title VII of the Civil Rights Act. The ADA is based upon the Rehabilitation Act of 1973, whose remedies are hooked into title VI of the Civil Rights Act and not title VII.
3. Failure to accommodate is a freestanding ADA claim. See also paragraph ¶ II2.
4. If failure to accommodate claims are handled under the hostile work environment standards, many fewer people with disabilities will be able to receive reasonable accommodations. They will also have a much more difficult time of challenging the failure to receive reasonable accommodations when the employer does not grant the reasonable accommodations. Hostile work environment standards, as we have discussed previously18919112820812821577, are very difficult for a plaintiff to meet.
5. Fear of adverse action is a major reason why persons with disabilities are very reticent about disclosing their disability. For a discussion of why that is the case, see this blog entry that I wrote for the Federal Bar Association blog, here19019212920912921678.

 

V

Judge Hartz’s Dissenting Opinion

 

1. The 10^th Circuit should refrain from discussing what is an adverse employment action because the issue was not raised before the panel or in the panel opinions. It also was not raised in any briefing on the meaning of adverse employment action for the Circuit en banc either.
2. While an adverse employment action jury instruction may not have been necessary, it still can be useful, especially where the absence of an adverse employment action frees the jury from having to determine whether the employer acted unreasonably in failing to make the accommodation.
3. None of the cases cited in the majority opinion are binding upon the 10^th Circuit sitting as a whole. Further, those opinions are sorely lacking in their persuasiveness as none of those cases explain why there is no adverse action requirement.
4. The government at oral argument forcibly confirmed that the in regard to language applied to failure to accommodate claims.
5. The majority opinion runs the risk of making a federal case of every incident of discrimination in the workplace, including failures to accommodate.

 

VI

Thoughts/Takeaways on Judge Hartz’s Dissenting Opinion

 

I don’t see a disconnect between the majority opinion and saying that the in regard to clause applies. The debate among the majority and the dissenting opinions is whether the in regard to clause creates a separate adverse action requirement. That can be argued either way. It can also be argued that a failure to accommodate is an adverse action in and of itself. Certainly, anybody with a disability, including myself, who has gone through the accommodation process would certainly argue that the failure to accommodate is an adverse action that changes things for the worse  with respect to accessing his or her employment, accessing a public entity, or accessing a public entity.