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    Wisconsin Lawyer
    November 12, 2021

    Disability Accommodations at Work: No Nationwide Consensus

    Lawyers representing job applicants, employees, or employers in workplace accommodation claims need to understand the elements plaintiffs must prove to prevail in claims alleging an employer failed to accommodate an applicant's or employee's disability.

    Storm Larson


    The Americans with Disabilities Act (ADA) is a flagship civil rights statute that prohibits disability-based discrimination in certain contexts such as employment and public accommodations. In the employment context, the statute prohibits covered entities from terminating or refusing to hire a qualified individual with a disability, subject to certain exceptions. It also entitles qualified individuals with a disability to a reasonable accommodation that would allow them to perform the essential functions of their jobs.1

    Employers can lawfully refuse to provide a reasonable accommodation if the accommodation constitutes an “undue hardship” on the employer.2 If no “undue hardship” exists and the employer fails to provide an accommodation, an employee might have a claim under the ADA. These are termed “failure-to-accommodate” claims. Although failure-to-accommodate claims are common in employment litigation, there is disagreement among the federal circuits about the elements a plaintiff must prove to prevail in such cases. In some circuits, plaintiffs are required to demonstrate that the failure to accommodate a disability constituted an “adverse employment action.” Other circuits do not require proof of an adverse employment action and frame the elements differently.

    In 2021, the U.S. Supreme Court was asked to clarify the elements of failure-to-accommodate claims to remove lingering ambiguity, but the Court denied certiorari.3 Thus, it remains vital that attorneys understand the jurisdiction-specific scope of such claims and ensure that the proper elements are being pleaded. This article explores the different approaches federal courts have taken on the issue and examines those approaches in light of the statutory text. For newer attorneys and attorneys who focus in areas other than employment law, this article is intended to provide a general overview of the ADA and the standards that courts apply to failure-to-accommodate claims.

    Brief Overview of the ADA

    The ADA is comprised of five sections, called “titles.” They cover areas from public services to public accommodations to employment. Title I applies to private and public employers, and employers must generally comply if they have at least 15 employees.4 In this article – and unless expressly noted – references to the ADA are to Title I.

    Storm B. LarsonStorm B. Larson, U.W. 2018, with Boardman & Clark LLP, Madison, primarily practices in labor and employment law, commercial litigation, and municipal law.

    Title I prohibits certain forms of discrimination “against a qualified individual on the basis of disability in regard to” hiring, compensation, discharge, and “other terms, conditions, and privileges of employment.”5 The ADA goes on to define disability as including “a physical or mental impairment that substantially limits one or more of [an individual’s] major life activities.”6 Individuals are to be considered “qualified” if they can perform the “essential functions” of the job with or without “reasonable accommodation[s].”7

    Reasonable accommodations can include changing a workspace to make it more accessible, restructuring a work schedule, or providing specialized equipment such as desks or chairs.8 The federal regulations that enforce the ADA require that employees and employers work together in what is called an “interactive process,” the purpose of which is to identify the precise limitations caused by the employee’s disability and to identify potential reasonable accommodations.9 The interactive process need not be formal so long as it is substantive and undertaken in good faith.10

    Failure-to-accommodate Claims and the Circuit Split

    Judicial opinions from the federal courts of appeals disagree about what showing plaintiffs must make to establish a failure-to-accommodate claim. For example, in the Third, Fourth, Fifth, Sixth, Seventh, Tenth, and Eleventh circuits, the elements of a failure-to-accommodate claim generally require plaintiffs to show that 1) the plaintiff is a qualified individual with a disability, 2) the employer was aware of the plaintiff’s disability, and 3) the employer failed to provide a reasonable accommodation.11

    But in the First, Second, Eighth, Ninth, D.C., and Federal circuits, plaintiffs have been required to demonstrate that the lack of an accommodation constituted an adverse employment action.12 Practically speaking, this means that plaintiffs must show that the lack of an accommodation amounted to some sort of harm to them. So, what accounts for this difference? After all, the text of the ADA is the same in every jurisdiction. Why do some circuits read an additional element into failure-to-accommodate claims under the ADA?

    To answer this, it is helpful to start with the text of the statute. The ADA, at 42 U.S.C. § 12112(a), sets forth the general prohibition on disability discrimination: “No covered entity shall discriminate against a qualified individual on the basis of disability in regard to … terms, conditions, and privileges of employment.” (Emphasis added.) 42 U.S.C. § 12112(b) states that failing to provide a reasonable accommodation is a form of disability discrimination and makes it unlawful to “not mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability … unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity….”

    The crux of the disagreement stems from the meaning of the phrase “in regard to” located in 42 U.S.C. § 12112(a). The circuits that require plaintiffs to show an adverse employment action generally reason that Congress uses such language when it intends plaintiffs to make a showing of an adverse employment action. For example, in the Title VII context (another employment discrimination statute), courts have interpreted the statute’s use of “in regard to” to require a showing of an adverse employment action.13 Thus, the clause’s presence in the ADA justifies the same showing as, say, a Title VII plaintiff.

    Seven circuits – including the Seventh Circuit – disagree with that interpretation. In fact, the Seventh Circuit has expressly stated that “[n]o adverse employment action is required to prove a failure to accommodate.”14

    The basis for that conclusion rests on two primary grounds. First, it would be nonsensical to require proof of an adverse action based on an employer’s failure to act. Second, these courts reason that the structure of the ADA supports the conclusion that an employer’s failure to accommodate is in and of itself a type of adverse employment action. As support, these courts contend that 42 U.S.C. § 12112(b) (which describes failure to accommodate claims) is implicitly incorporated into 42 U.S.C. § 12112(a) (discussion of “terms, conditions, and privileges of employment”). Therefore, a failure to accommodate is an inherent violation of an employee’s “terms, conditions, and privileges of employment.” So, no additional showing is necessary.

    Practically speaking, this means that plaintiffs in the Seventh Circuit generally have a less onerous burden than plaintiffs in certain other circuits. This is because plaintiffs in the Seventh Circuit are presumed to have suffered some harm or injury by virtue of the employer’s failure to provide an accommodation. For this reason, employers in the Seventh Circuit are well-advised to take requests for disability accommodations seriously and to consult legal counsel or their human resources staff if they become aware of an employee’s need for an accommodation.

    U.S. Supreme Court Denies Certiorari

    In 2021, the U.S. Supreme Court was asked to resolve this circuit split. An en banc decision from the Tenth Circuit was the proposed vehicle, but the Court denied certiorari and left the circuits divided. The majority and dissenting opinions from the Tenth Circuit case nonetheless provide a neat encapsulation of how differently jurists can read and interpret the same language and purpose of an employment discrimination statute.15

    In Exby-Stolley v. Board of County Commissioners, the plaintiff, Laurie Exby-Stolley, worked for the defendant, Weld County, Colo., as a health inspector. While on the job, Exby-Stolley broke her arm, which made it difficult for her to conduct inspections. According to the county, Exby-Stolley asked it to create her a new position that would involve some of her current duties as well as tasks from other jobs that she could still physically perform. When the county told her that it could not do so, she “indicated that she was resigning.” According to Exby-Stolley, she understood from this discussion that she had to resign.

    Exby-Stolley did resign and later sued the county, alleging that it unlawfully failed to accommodate her broken arm under the ADA. As part of her claims, Exby-Stolley alleged that the county’s failure to accommodate her forced her to resign or be terminated. Thus, she alleged that she suffered an adverse employment action.

    The case went to a jury trial, and at the close of evidence the district court instructed the jury to find in favor of Exby-Stolley if she had established that she 1) “had a ‘disability,’” 2) she “was a ‘qualified individual,’” and 3) she “was discharged from employment or suffered another adverse employment action by” the county. The jury returned a verdict for Exby-Stolley on the first two elements but determined that she was not subjected to an adverse employment action by the county because she voluntarily resigned. Thus, her claim failed.

    Exby-Stolley appealed, contending that the district court’s adverse employment action instruction was erroneous. A divided, three-judge panel of the Tenth Circuit affirmed the judgment. The majority opinion explained that the plaintiff had to show an adverse employment action because the statute requires that a failure to accommodate be “in regard to” the plaintiff’s employment. Accordingly, the panel reasoned that the district court’s instructions properly stated the law to require a showing of an adverse employment action.

    The Tenth Circuit agreed to hear the case en banc and ordered that the parties “address specifically … [w]hether an adverse employment action is a requisite element of a failure-to-accommodate claim under the” ADA. In a 7-6 decision, the court concluded it was not. The majority reasoned that “it would make little sense to require the showing of an adverse employment action as part of a failure-to-accommodate claim,” which asserts “that the employer failed to act.”16 The majority further concluded that 42 U.S.C. § 12112(b)’s examples of discrimination were illustrative examples of “terms, conditions, and privileges of employment” referenced in 42 U.S.C. § 12112(a). Thus, alleging a violation of 42 U.S.C. § 12112(b) was enough to satisfy 42 U.S.C. § 12112(a).

    Wisconsin Analogue to the ADA

    In addition to the ADA, the Wisconsin Fair Employment Act (WFEA) makes it an unlawful employment practice to refuse “to reasonably accommodate an employee’s or prospective employee’s disability unless the employer can demonstrate that the accommodation would pose a hardship on the employer’s program, enterprise or business.”17 The elements of a WFEA failure-to-accommodate claim are the following: “The complainant in a [disability] discrimination case must show that: … he or she is [disabled] within the meaning of the WFEA and that … the employer took one of the enumerated actions on the basis of [disability].”18

    The Wisconsin Court of Appeals has made clear that “if an employer refuses to reasonably accommodate an employee’s (or prospective employee’s) [disability] and is unable to demonstrate that the accommodation would pose a hardship, then the employer violates the WFEA.”19 Thus, there is no additional adverse-employment-action showing necessary under the WFEA.

    State courts and administrative tribunals routinely interpret the WFEA broadly to effectuate its remedial purpose. For instance, under the WFEA, employers have an obligation to initiate the interactive process to find a reasonable accommodation once the employer is aware that an employee may be struggling at work because of a disability. For example, in Target Stores v. Labor & Industry Review Commission, the court of appeals affirmed a Labor and Industry Review Commission (LIRC) decision that had held that an employer, Target, had an obligation to provide a reasonable accommodation to an employee with sleep apnea, which Target knew was affecting the employee’s work performance. LIRC reasoned, and the court of appeals affirmed, that the WFEA does “not necessarily require that the employee first make a request or suggestion” for an accommodation and that an employer might violate the WFEA if it declines to offer an accommodation when an employee is known to be struggling at work because of a disabling condition. This is one reason among others that an employer’s obligation to provide an accommodation under the WFEA is arguably broader than the duty under the ADA.20


    Many employers have seen an uptick in accommodation requests throughout the pandemic and expect that trend to continue. Thus, it is crucial that employers evaluate their policies and practices to ensure that employees are receiving the accommodations to which they are lawfully entitled. For now, the Supreme Court has declined to weigh in on the circuit split on the requisite showing for a failure-to-accommodate claim.

    Under current law in the Seventh Circuit, a plaintiff is not required to make a showing of adverse action to prevail in a failure-to-accommodate case. Thus, employers in this circuit will not have the benefit of requiring plaintiffs to prove an additional element of such claims. The employer’s failure to provide a reasonable accommodation in itself is sufficient to prevail under the ADA.

    Meet Our Contributors

    What is the best part about practicing labor and employment law?

    Storm B. LarsonSome people come to law school with a clear idea about what type of law they want to practice. Others, like myself, didn’t make that realization until 3L year. I took a course on labor law during my penultimate semester at the U.W. Law School and fell in love with the material the first day. It was the first time I remember really engaging with the substance of the course. The next semester, I took a course on employment discrimination and realized that I had found my calling.

    Some may think labor and employment is a dry field. The opposite is true. It offers attorneys the chance to think about big-picture ideas in a real-world setting where real people are affected. We hear much about systemic racism, inequality, and who our institutions actually serve. Workplaces are a microcosm where we can see those issues play out in a day-to-day scenario. While each day presents its own unique challenges, through it all, it is rewarding to help guide and educate clients on making their workplaces welcoming environments for all.

    Storm B. Larson, Boardman & Clark LLP, Madison.

    Become a contributor! Are you working on an interesting case? Have a practice tip to share? There are several ways to contribute to Wisconsin Lawyer. To discuss a topic idea, contact Managing Editor Karlé Lester at (800) 444-9404, ext. 6127, or email Check out our writing and submission guidelines.


    1 42 U.S.C. § 12111(8).

    2 42 U.S.C. § 12112(b)(5)(A).

    3 See Exby-Stolley v. Board of Cnty. Comm’rs, 979 F.3d 784 (10th Cir. 2020), cert. denied sub nom. Board of Cnty. Comm’rs v. Exby-Stolley, 141 S. Ct. 2858 (2021).

    4 42 U.S.C. § 12111(5)(A).

    5 42 U.S.C. § 12112(a).

    6 42 U.S.C. § 12102(1)(A).

    7 42 U.S.C. § 12111(8).

    8 42 U.S.C. § 12111(9)(A)-(B); 29 C.F.R. § 1630.2(o)(2)(i)-(ii).

    9 29 C.F.R. § 1630.2(o)(3).

    10 Id.

    11 See, e.g., Brumfield v. City of Chi., 735 F.3d 619, 631 (7th Cir. 2013) (listing elements of failure-to-accommodate claim).

    12 See, e.g., Higgins v. New Balance Athletic Shoe Inc., 194 F.3d 252, 264 (1st Cir. 1999).

    13 See, e.g., Power v. Summers, 226 F.3d 815, 820 (7th Cir. 2000) (“[T]he federal statutes … that forbid invidious discrimination in employment[ ] limit their protection to victims of ‘adverse employment action,’ which is judicial shorthand … for the fact that these statutes require the plaintiff to prove that the employer’s action … altered the terms or conditions of his employment.”).

    14 EEOC v. AutoZone Inc., 630 F.3d 635, 638 n.1 (7th Cir. 2010).

    15 Exby-Stolley, 979 F.3d 784.

    16 Id. at 797.

    17 Wis. Stat. § 111.34(1)(b).

    18 Target Stores v. Labor & Indus. Rev. Comm’n, 217 Wis. 2d 1, 9, 576 N.W.2d 545 (Ct. App. 1998).

    19 Id. at 10.

    20 See, e.g., Crystal Lake Cheese Factory v. Labor & Indus. Rev. Comm’n, 2003 WI 106, 264 Wis. 2d 200, ¶ 52, 664 N.W.2d 651 (holding that “[a] reasonable accommodation is not limited to that which would allow the employee to perform adequately all of his or her job duties” under the WFEA as it is under the ADA).

    » Cite this article: 94 Wis. Law. 32-36 (November 2021).

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