Failure-to-Accommodate Claim Must Show Adverse Action, 10th Circuit Says

While seemingly adding a hurdle for ADA plaintiffs, Exby-Stolley case’s unique facts limit its use for employers

Failure-to-accommodate claims often arise because an employee can’t perform essential job duties due to a disability and the employer fires that employee as a result. But a scenario in which the employee and employer failed to agree on an accommodation — and the employee quit — has generated an unorthodox opinion from the federal appeals court in Colorado.

The 10th Circuit Court of Appeals ruled on Oct. 11 that a plaintiff who sues for failure to accommodate under the Americans with Disabilities Act has to show that he or she suffered an adverse employment action. Employment lawyers say that while the opinion appears to provide an extra line of defense for employers against certain ADA claims, the case’s exceptional facts won’t make it widely applicable.

Laurie Exby-Stolley, formerly a health inspector employed by Weld County, sued the county for a failure to accommodate her disability that she said resulted in the loss of her job. After losing in trial, Exby-Stolley appealed, claiming the trial court improperly instructed the jury that she needed to prove she suffered an adverse employment action. In upholding that instruction, the 10th Circuit joins several others in holding an ADA failure-to-accommodate claim requires an adverse employment action.

Exby-Stolley suffered an arm injury in 2009 that required multiple surgeries and limited her ability to perform various tasks as an on-site health inspector. She and county management discussed her work restrictions set by her worker’s compensation physician, and during a meeting in 2012, they failed to reach an agreement on a reasonable accommodation. Exby-Stolley claimed she resigned after being pressured by management to do so. The HR representative maintained she was “surprised” by the employee’s resignation announcement.

To read this story and other complete articles featured in the October 22, 2018 print edition of Law Week Colorado, copies are available for purchase online.