Squire Patton Boggs Summer Associate Tess Chaffee summarizes a recent opinion from the United States Court of Appeals for the Eleventh Circuit holding that an adverse employment action is required for a failure to accommodate claim under the Americans with Disabilities Act.
Most employers are familiar with the Americans with Disabilities Act (“ADA”), which prohibits discrimination against individuals with disabilities in employment, and requires employers to provide reasonable accommodations to assist qualified individuals in performing their essential job functions absent undue hardship to the employer.
However, the federal circuit courts disagree about whether a failure to accommodate claim requires an adverse employment action – such as termination of employment, demotion, failure to promote, employee discipline, denial of wage increases, etc. – to be viable. For example, in a divided decision from 2020, the United States Court of Appeals for the Tenth Circuit (which hears appeals out of Oklahoma, Kansas, New Mexico, Colorado, Wyoming and Utah) held in Exby-Stolley v. Board of County Commissioners that an adverse employment action is not a requisite element for a failure to accommodate claim under the ADA. In so holding, the Tenth Circuit explained that “the overwhelming majority” of circuits either do not require an employee to demonstrate that he or she suffered an adverse employment action before finding employers liable under the ADA for failing to accommodate the employee’s disability, or incorporate such a showing “in name only” – reasoning that the employer’s failure to accommodate is itself a form of adverse employment action. Yet, as the dissenting judge in Exby-Stolley pointed out, an analysis of other circuits’ views on the issue “reveals a decidedly muddier picture than the majority portrays.”
A recent case out of the United States Court of Appeals for the Eleventh Circuit (which hears appeals arising out of Alabama, Florida and Georgia) demonstrates this point. On May 24, 2023, the Eleventh Circuit deepened the circuit split over whether an adverse employment action is required for an ADA failure to accommodate claim, holding that such a showing is necessary for an employer’s failure to accommodate to be actionable.
In Beasley v. O’Reilly Auto Parts, the plaintiff, a hearing-impaired inbound materials handler who relies primarily on American Sign Language to communicate, claimed that the company he worked for violated the ADA by failing to accommodate his disability. Although the company agreed at the outset of his employment that Beasley could request an interpreter when needed, the company subsequently failed to provide him with one. Additionally, Beasley repeatedly requested text message summaries of the company’s mandatory pre-shift meetings, during which management discussed important safety information, to no avail.
On several occasions, Beasley received positive performance reviews for his work in all categories except attendance. The performance reviews directly correlated to increases in pay. Beasley’s requested time off had been approved during his orientation, and when he missed work due to illness, he submitted a doctor’s note to his associate supervisor. Nonetheless, Beasley received disciplinary write-ups for his absences. When Beasley requested an interpreter to explain that the absences had been authorized or excused, his request went unfulfilled. As a result, Beasley was unable to effectively communicate with management regarding the absences. The communication issues ultimately contributed to Beasley’s resignation from the auto parts supplier.
Beasley then filed suit, alleging that his former employer discriminated against him in violation of the ADA by failing to provide reasonable accommodations, namely, an interpreter. Although the district court granted summary judgment in favor of the employer, the Eleventh Circuit reversed. Relying on a footnote in a 2007 case within the Eleventh Circuit addressing an ADA failure to accommodate claim, which declared that plaintiffs seeking to advance such a claim must prove not only that their employer failed to accommodate their disability, but also that the failure to accommodate led to an adverse employment action, the district court found that Beasley had failed to meet his burden. Specifically, the district court rejected Beasley’s arguments that his company’s failure to provide accommodations for the pre-shift meetings exposed him to an unsafe work environment or negatively impacted his job performance, and consequently, his pay. Moreover, the district court did not consider the pre-shift meetings necessary for Beasley to perform his essential job functions, thus requiring an accommodation under the ADA. Further, the district court found that Beasley had “offered only speculation” that an interpreter would have been more effective than cell phone correspondence in communicating about his absences.
The Eleventh Circuit, however, found that a jury could reasonably determine that, had Beasley been provided an interpreter for (or adequate written summaries of) the team meetings, he would have received higher ratings on his performance reviews, which would have resulted in higher pay. Likewise, the court held that a jury could find that Beasley’s attendance-related discipline adversely affected his attendance scores, which in turn impacted his pay. In reviving Beasley’s claim, the Eleventh Circuit agreed with the district court that failure to provide reasonable accommodations under the ADA is actionable only if such failure negatively impacts the employee’s hiring, advancement, discharge, compensation, training and other terms, conditions and privileges of his employment, but the Eleventh Circuit disagreed with the district court’s application of that rule. Moreover, the Eleventh Circuit faulted the district court’s conclusion that the pre-shift meetings were not necessary for Beasley to perform his essential job functions, giving weight to a manager’s comments indicating the importance of the safety information conveyed during those meetings.
So, what does this mean for employers? Until the U.S. Supreme Court takes up the issue, employers’ liability for failure to accommodate an employee’s disability is jurisdiction dependent. At the very least, the Eleventh Circuit’s decision in Beasley clarifies that, in Alabama, Florida and Georgia, an employee must show that their employer’s failure to accommodate their disability led to an adverse employment action before the employer can be held accountable for failure to accommodate under the ADA. In other words, employers in those jurisdictions will not be found liable for failing to provide accommodations for an employee’s disability unless the employee can demonstrate that they were discharged, demoted, received reduced benefits or pay or suffered some other adverse employment action. For employees working within other circuits, however, showing only that their employer failed to accommodate their disability may be enough to prevail under the ADA. As always, employers should consider consulting with counsel before making accommodation decisions to ensure compliance in their jurisdiction.