“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Tenth Circuit judges Allison Eid and Joel Carson joined a dissent arguing that a district court was correct in requiring that a disabled individual suing an employer for failure to accommodate her disability under the Americans with Disabilities Act (ADA) also had to prove that the employer took adverse action against her. The majority rejected the dissent’s view, ruled that no adverse employment action need be proven when the issue is failure to accommodate a disability, and sent the case back to give the individual a chance to prove her case under the proper legal standard. The October 2020 decision of the full Tenth Circuit was in Exby-Stolley v. Board of County Comm’rs. 

 As recounted in the three-judge panel decision in the case,  Laurie Exby-Stolley worked as a health inspector for Weld County in Colorado, inspecting restaurants, bars, and similar locations. While on the job, she suffered a broken right arm, which required significant treatment including two surgeries. The inspections also took her longer than before since she had trouble lifting, moving objects, and performing other tasks. After getting a poor performance evaluation because her work slowed down, she received a note from a doctor setting forth necessary restrictions on her activity and asked for reasonable accommodations so that she could continue to perform her job.  Management declined to attempt to find such accommodations, and instead assigned her temporarily to part-time office work. Exby-Stolley resigned because she could no longer perform her job and sued the County for violating the ADA by failing to “reasonably accommodate” her disability, compelling her to resign her job.

The trial court decided that in order to prove her case, Exby-Stolley had to prove not only that no reasonable accommodation was offered to her, but also that the County had committed an “adverse employment action” such as firing her. Because she did not prove that, the jury found against her and she appealed, contending that the judge’s “adverse employment action” instruction was wrong under the ADA. The three-judge panel that initially heard the case affirmed the lower court decision by a 2-1 vote, and the full Tenth Circuit agreed to rehear the case.

In an opinion written by George W. Bush nominee Judge Jerome Holmes, the Tenth Circuit reversed the district court and ruled that Exby-Stolley did not need to prove an “adverse employment action” to prevail on her claim that the Board had improperly failed to make “reasonable accommodations” for her disability. The majority explained that the “ADA’s text” makes clear that the law imposes two different and separate requirements on an employer: not to fire or take other adverse action based on disability and to offer reasonable accommodations for a disability, and there is nothing in the text that suggests that one is a prerequisite for the other. This conclusion was confirmed, the majority ruled, by “controlling precedent” in the Tenth Circuit and elsewhere, the “general remedial purpose” of the ADA, and the “EEOC’s understanding” of the law and of failure to accommodate claims. The court sent the case back to the district court, so that Exby-Stolley will have the opportunity to prove her case using proper legal standards.

Trump judges Eid and Carson joined a dissent that argued that the lower court was right and that Exby-Stolley and others like her are required to prove there was an adverse employment action to make a reasonable accommodation claim. The dissent’s primary claim was that under the ADA, a discrimination victim must  prove that an employer’s failure to accommodate was “in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” In other words, the dissent maintained, there must also be adverse action by the employer “in regard to” hiring, advancement, firing, or some other action relating to the disabled individual.

Judge Holmes explained, however, that this view by the dissent was “fundamentally mistaken.”  That was because, by definition, a failure to accommodate claim relates to the “terms, conditions, and privileges of employment,” which is also contained in the “in regard to “clause of the ADA.  The law simply does not require that someone like Exby-Stolley prove that an employer took affirmative adverse action against her in addition to proving that it failed to take action to accommodate her disability.

As a result of the majority’s ruling, Exby-Stolley will have another chance to prove her failure to accommodate claim against the Board. If it had been up to Trump judges Eid and Carson and the other dissenters, however, she would not have that