The Americans with Disabilities Act requires employers to provide reasonable accommodations that permit a disabled employee to perform the essential functions of his or her job. What happens, however, when an employer declines to provide a requested accommodation, but the rejection does not result in tangible harm to the employee? Earlier this month, a divided Tenth Circuit Court of Appeals panel concluded that an ADA failure to accommodate claim requires that the employee demonstrate that he or she has been subjected to an adverse employment action.

In Exby-Stolley v. Bd. of County Comm., Weld County, the plaintiff was a county health inspector whose broken arm and subsequent surgeries left her unable to perform inspections at the pace required by the county. She was placed in a temporary part-time light duty office job while the county determined how to deal with her medical issues, but her pay and benefits were not reduced. When the county rejected her request for a modified permanent position, she resigned and sued for failure to accommodate under the ADA.

In a 2-1 decision, the Tenth Circuit affirmed a jury verdict in favor of the employer. The jury concluded that the plaintiff had voluntarily resigned before she was subjected to any kind of adverse action, such as discharge, pay cut or demotion. The plaintiff argued that the mere act of wrongfully denying a requested accommodation is in and of itself an adverse action under the ADA. The court rejected this claim, finding that like Title VII and other federal civil rights statutes, the existence of an adverse employment action is required in order to prove discrimination under the ADA.

This decision is the first federal appellate case to squarely address this issue. Employers responding to EEOC charges or ADA lawsuits should carefully review the plaintiff’s allegations to determine if they claim any adverse action other than rejection of the accommodation request. If not, the employer should contend that the employee has not stated or pled adequate facts to claim an ADA violation.