*2 Before TYMKOVICH , Chief Judge, KELLY , BRISCOE , LUCERO , HARTZ , HOLMES , MATHESON , BACHARACH , PHILLIPS , McHUGH , MORITZ , EID , and CARSON , Circuit Judges.
OPINION ON REHEARING EN BANC HOLMES , Circuit Judge, joined by BRISCOE , LUCERO , MATHESON , BACHARACH , PHILLIPS , and MORITZ , Circuit Judges.
In this en banc appeal, we address whether an adverse employment action is a requisite element of a failure-to-accommodate claim under Title I of the Americans with Disabilities Act (the “ADA”), 42 U.S.C. §§ 12111–12117 . We conclude that the answer is “no,” reaching this determination through a comprehensive analysis, including consideration of the following: the ADA’s text; our failure-to-accommodate precedent; the failure-to-accommodate decisions of our sister circuits; the views of the Equal Employment Opportunity *3 Commission (the “EEOC”), the federal regulatory agency charged with administering the ADA; and the ADA’s general remedial purposes.
The district court in this case had instructed the jury that, in order to
prevail on her ADA failure-to-accommodate claim, Plaintiff-Appellant Laurie
Exby-Stolley was required to establish that she had suffered an adverse
employment action. Over a dissenting opinion, a panel of this court agreed and
affirmed the district court’s judgment.
See Exby-Stolley v. Bd. of Cty. Comm’rs
,
On en banc rehearing and following oral argument, we now hold that the
district court erred:
viz.
, an adverse employment action is not a requisite element
of an ADA failure-to-accommodate claim. Accordingly, we
reverse
the district
court’s judgment and
remand
for a new trial. Because we remand for a new trial
and the original decision turned on trial-related issues, we vacate in full the
decision (including the dissent).
See, e.g.
,
id.
(“vacat[ing] the panel opinion
insofar as it reversed the district court’s judgment”);
The Tool Box v. Ogden City
*4
Corp.
,
I
This en banc appeal centers on a pure issue of law: whether an adverse employment action is a requisite element of an ADA failure-to-accommodate claim. Therefore, we need not recount at length here the facts and procedural history. We only discuss the factual and procedural background insofar as it is germane to our resolution of this appeal.
In 2013, Ms. Exby-Stolley sued her former employer, the Board of County Commissioners of Weld County, Colorado (the “County”). In particular, and as relevant here, Ms. Exby-Stolley contended that the County violated the ADA by failing to accommodate her disability. See 42 U.S.C. § 12112(a), (b)(5)(A). More specifically, she claimed that the County had not reasonably accommodated her even though she had informed it that her physical limitations resulting from a workplace injury were preventing her from adequately completing her work, and even though she also had proposed to it various reasonable accommodations. Ms. Exby-Stolley also alleged that, beyond not being accommodated, she was compelled to resign, which she in fact did prior to filing this suit. The County, beyond disputing that it had failed to make sufficient efforts to reasonably *5 accommodate Ms. Exby-Stolley, also alleged that her resignation had been voluntary.
In its post-trial instructions to the jury regarding Ms. Exby-Stolley’s failure-to-accommodate claim, the district court stated that
Plaintiff must prove each of the following facts by a preponderance of the evidence:
1. That Plaintiff had a “disability,” as defined in these instructions;
2. That Plaintiff was a “qualified individual,” as defined in these instructions;
3. That Plaintiff was discharged from employment or suffered another adverse employment action by Defendant ; and 4. That Plaintiff’s disability was a substantial or motivating factor that prompted Defendant to take that action. Aplt.’s App., Vol. II, at 440 (Jury Instrs., filed Oct. 11, 2016) (emphasis added). The instructions specified that “[a]n adverse employment action constitutes a significant change in employment status, such a[s] hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Id. at 449.
In answers to special interrogatories, the jury found that Ms. Exby-Stolley had “proven by a preponderance of the evidence” both “that she had a disability, as defined in the instructions, at the time of the employment actions in question” and “that she is a qualified individual with a disability, as defined in the *6 instructions.” Id. at 419 (Verdict Form, filed Oct. 11, 2016). But the jury nonetheless ruled in the County’s favor, finding that Ms. Exby-Stolley had not “proven by a preponderance of the evidence” that she had been “[discharged from employment] [not promoted] [or other adverse action] by Defendant.” Id. (brackets in original).
Ms. Exby-Stolley appealed, arguing in part that the district court erred in
instructing the jury that she had to prove an adverse employment action as part of
her failure-to-accommodate claim. Over a dissenting opinion, the Panel Majority
affirmed the district court’s judgment, concluding as relevant here that “an
adverse employment action is an element of a failure-to-accommodate claim.”
Exby-Stolley
,
The Panel Majority acknowledged that “the language ‘adverse employment action’ does not appear in the ADA” but observed that it was “well established in judicial opinions” in the Title VII context, where this language has been used as a “shorthand” for language that is materially similar to the terms-conditions-and- privileges-of-employment language of § 12112(a) of the ADA. Id. at 906–07. And the Panel Majority deemed it “natural to use the same shorthand—adverse employment action—for this statutory language in the ADA as is used for like language in Title VII.” Id. at 908. It “is clear from the language of § 12112,” reasoned the Panel Majority, that “[t]he terms-and-conditions-of-employment *7 language”—and, consequently, the shorthand, adverse-employment-action language—“applies to failure-to-accommodate claims under the ADA.” Id. at 907. And, critically, the Panel Majority concluded that “proof of a failure to accommodate does not automatically satisfy the terms-and-conditions language”—in other words, “[e]ven after proof of a failure to accommodate, there remains the requirement that the discrimination be ‘in regard to job application procedures, . . . [or] other terms, conditions, or privileges of employment.’ That is, the employee still needs to prove this component of an ADA discrimination claim based on a failure to accommodate.” Id. at 908 (second alteration and omission in original) (quoting 42 U.S.C. § 12112(a)). And, because the adverse- employment-action language is simply shorthand for this additional terms- conditions-and-privileges-of-employment requirement, “it is evident” said the Panel Majority, that plaintiffs must establish an adverse employment action even where their ADA claim is “based on failure to make reasonable accommodations.” Id. at 911.
This court subsequently agreed to rehear the case en banc, requesting supplemental briefing specifically as to whether the district court erred when it *8 instructed the jury that an adverse employment action is a requisite element of a failure-to-accommodate claim under the ADA. We turn now to that question. [1]
II
A
“We review de novo whether, ‘as a whole, the district court’s jury
instructions correctly stated the governing law and provided the jury with an
ample understanding of the issues and applicable standards.’”
Liberty Mut. Fire
Ins. Co. v. Woolman
,
42 U.S.C. § 12112(a), entitled “General rule,” provides the general, employment-discrimination proscription of Title I of the ADA, stating that
[n]o covered entity shall discriminate against a qualified individual on the basis of disability 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.
*9
42 U.S.C. § 12112(a)
[2]
;
see PGA Tour, Inc. v. Martin
,
Subsection 12112(b), entitled “Construction,” is inextricably intertwined with § 12112(a)’s “General rule.” Critically, § 12112(b) particularizes and makes concrete this rule by offering in non-comprehensive fashion examples of the kinds of disability discrimination that qualified individuals may be subjected to “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.” 42 U.S.C. § 12112(a). (We frequently refer to the latter, quoted language of § 12112(a), in brief, as “the terms-conditions-and- privileges-of-employment language.”) As most relevant here, subsection (b) provides the following:
As used in subsection (a), the term “discriminate against a qualified individual on the basis of disability” includes– . . . .
(5)(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity[.] Id. § 12112(b).
It is undisputed that the language “adverse employment action” does not expressly appear in the plain terms of the failure-to-accommodate statutory provision, § 12112(b)(5)(A), nor in the “General rule” of § 12112(a) that the failure-to-accommodate provision particularizes. And, for the reasons that we discuss at length below, we conclude that the district court erred when it charged the jury that an adverse employment action is a requisite element of a failure-to- accommodate claim.
We put aside for the moment—but return to later—the fact that by charging
the jury in this fashion, the district court effectively added language to the ADA’s
plain text (i.e., “adverse employment action”); ordinarily, as here, this is an
impermissible method of interpreting the governing statutory law.
See, e.g.
,
Dean
v. United States
,
B
More specifically, the district court’s incorporation of an adverse- employment-action requirement into an ADA failure-to-accommodate claim was contrary to (1) our controlling precedent; (2) the inherent nature of a failure-to- accommodate claim, as contrasted with a disparate-treatment claim; (3) the general remedial purposes of the ADA; (4) the EEOC’s understanding of the elements of an ADA failure-to-accommodate claim; and (5) the regularly followed practices of all of our sister circuits. We address these matters in turn.
1
Our controlling precedents make clear that an adverse employment action is
not a requisite element of a failure-to-accommodate claim. For starters, our
precedents have repeatedly and invariably presented the prima facie case for an
ADA failure-to-accommodate claim without mentioning an adverse-employment-
action requirement.
See Lincoln v. BNSF Ry. Co.
,
An appellate court that effectively declares that it is comprehensively
delineating the elements of “a prima facie failure to accommodate claim,”
Bartee
,
Moreover, the telling omission of an adverse-employment-action
requirement from our prior articulations of the ADA prima facie case for a
failure-to-accommodate claim is perhaps especially notable, given that where an
adverse employment action is a required element of other claims, whether under
the ADA or otherwise, we have not been reticent to acknowledge that.
See, e.g.
,
*14
EEOC v. Abercrombie & Fitch Stores, Inc.
,
Beyond repeatedly omitting an adverse-employment-action requirement
from comprehensive articulations of the prima facie case for ADA failure-to-
accommodate claims, our cases have frequently made other statements in stark
conflict with the ostensible existence of an adverse-employment-action
requirement for failure-to-accommodate claims. For instance, in
Bartee
, we
juxtaposed the elements of an ADA disparate-treatment claim with the elements
of an ADA failure-to-accommodate claim. And, in so doing, we observed that the
element in the former of an adverse employment action—in that instance, a
termination of employment—was not an element of the latter.
See
374 F.3d
at 912 n.4 (“To present a claim of wrongful termination, [the plaintiff] must
show: (1) he is disabled within the meaning of the ADA; (2) he can perform,
*17
either with or without reasonable accommodation, the essential functions of the
desired job; and (3) ‘that [the defendant] terminated him because of his
disability.’ To present a prima facie failure to accommodate claim,
the first two
elements remain the same
, while the third is met by showing that ‘an employer
[did not] take reasonable steps to [accommodate the employee].’” (third alteration
in original) (emphasis added) (citation omitted) (first quoting
White v. York Int’l
Corp.
,
Additionally, we have stated on multiple occasions that the ADA
“establishes a cause of action for disabled employees
whose employers fail to
reasonably accommodate them
.”
Id.
at 1048 (emphasis added) (quoting
Selenke
v. Med. Imaging of Colo.
,
Similarly, as we have expressly noted, the ADA imposes on “the employer .
. . an
affirmative obligation
to make a reasonable accommodation,”
Thomas
,
Finally, in our discussions of the overarching features of ADA
discrimination claims, we also have made clear that an ADA failure-to-
accommodate claim does not contain an adverse-employment-action requirement.
As a general matter in an ADA discrimination claim, we have stated that “an
employee must show: (1) she is disabled within the meaning of the ADA; (2) she
is qualified, with or without reasonable accommodation, to perform the essential
functions of the job held or desired; and (3) she was discriminated against
because of her disability.”
Osborne v. Baxter Healthcare Corp.
,
2
Any attempt to incorporate an adverse-employment-action requirement into
an ADA failure-to-accommodate claim likely stems from “confusion . . . [in]
failing to clearly differentiate between disparate treatment and failure to
accommodate claims”: the former require a showing of an adverse employment
action but the latter do not. Megan I. Brennan,
Need I Prove More: Why an
Adverse Employment Action Prong Has No Place in a Failure to Accommodate
Disability Claim
, 36 H AMLINE L. R EV . 497, 501 (2013);
cf. EEOC v. LHC Grp.,
Inc.
,
More concretely, disparate-treatment claims under the ADA allege that the
employer discriminated against the employee by
acting
in a discriminatory
manner.
See, e.g.
, 42 U.S.C. § 12112(b)(1) (labeling as discrimination “
limiting,
segregating, or classifying
a job applicant or employee in a way that adversely
affects the opportunities or status of such applicant or employee because of the
disability of such applicant or employee” (emphasis added));
id.
§ 12112(b)(6)
(labeling as discrimination “
using
qualification standards, employment tests or
other selection criteria that screen out or tend to screen out an individual with a
disability” (emphasis added)). It thus necessarily follows that a plaintiff must
establish an employment
action
as part of an ADA disparate-treatment claim.
See, e.g.
,
C.R. England
,
On the other hand, failure-to-accommodate claims do not allege that the employer acted , but rather that the employer failed to act . See 42 U.S.C.
§ 12112(b)(5)(A) (listing, as the basis of a failure-to-accommodate claim, “
not
making
reasonable accommodations to the known physical or mental limitations
of an otherwise qualified individual with a disability” (emphasis added)). That is,
failure-to-accommodate claims concern an omission rather than an action; such
*22
claims allege that the employer discriminated against the employee by not
satisfying an affirmative, ADA-created duty to provide reasonable
accommodations.
See US Airways, Inc. v. Barnett
,
And because the ADA’s reasonable-accommodation mandate focuses on
“compelling behavior” rather than “policing an employer’s actions,”
Peebles
,
This distinction between disparate-treatment claims and failure-to-
accommodate claims under the ADA also explains in part why the question of
intent is treated quite differently as to each. In particular, since disparate-
treatment claims concern discrimination in the form of an
action
, it naturally
follows that a plaintiff alleging such a claim of discrimination must establish,
inter alia
, that there was both an employment action and that the action was
undertaken with an intent that made it discriminatory, or phrased differently, that
*24
the action was taken “because of the disability.”
Davidson
,
That is, in the context of a failure-to-accommodate claim, once an
employee “make[s] an adequate request [for an accommodation], thereby putting
the employer on notice,”
C.R. England
,
3
Moreover, introducing an adverse-employment-action requirement into an
ADA failure-to-accommodate claim would significantly frustrate the ADA’s
remedial purposes.
Cf. Hamer v. City of Trinidad
,
The ADA’s purposes include “assuring . . . ‘full participation’” in society
for individuals with disabilities, as well as “equality of opportunity,”
C.R.
England
,
And these purposes of promoting full participation and equal opportunity
are effectuated in meaningful part by the “affirmative obligation” that the ADA
places on covered employers “to make a reasonable accommodation.”
Thomas
,
Those purposes, and the ability of the ADA’s reasonable-accommodation
mandate to promote them, would be significantly frustrated by including an
adverse employment action as a necessary element of a failure-to-accommodate
claim. Employers would
not
be held accountable for failing to reasonably
*29
accommodate their disabled employees so long as those employers did not also
subject their employees to an adverse employment action. How could the ADA’s
reasonable-accommodation mandate meaningfully help to ensure that qualified
individuals with disabilities who have been denied a reasonable accommodation
can “obtain the
same
workplace opportunities that those without disabilities
automatically enjoy,”
US Airways
,
To make the matter more concrete, consider the following hypothetical. Imagine that a judge of this court hires a blind law clerk who can, without accommodation, write two draft judicial opinions per month. Also assume that the widely accepted standard for a successful law clerk is one who can write three draft judicial opinions per month, and that the blind law clerk can reach that level with the help of a reasonable accommodation. Further assume, for purposes of this hypothetical only, the following: (1) that a qualified, low-wage personal *30 reader would constitute such a reasonable accommodation under the ADA, see 42 U.S.C. § 12111(9)(B) (defining “reasonable accommodation” to potentially include “the provision of qualified readers or interpreters”), and (2) that such a reader undisputedly would not impose an undue hardship on the office operations of the blind law clerk’s employer (i.e., the judge), see id. § 12112(b)(5)(A) (allowing an employer to avoid liability for failing to provide a reasonable accommodation to “an otherwise qualified individual with a disability” if the employer “can demonstrate that the accommodation would impose an undue hardship” on the operation of the employer’s business). Now imagine that the judge denies the blind law clerk’s request for this assumed reasonable accommodation and refuses to discuss any other possible reasonable accommodation—simply telling the law clerk that drafting two opinions per month is minimally sufficient and actually about what the judge expected, given the law clerk’s blindness, and that this level of production will be just fine, even though the judge’s other law clerks regularly reach the three-opinion, monthly target.
The law clerk in this hypothetical has suffered no adverse employment
action as defined in our precedent and in the jury instructions at issue in this
case—that is, the law clerk has not been subjected to “a
significant change in
employment status
, such a[s] . . . firing, [or a] fail[ure] to promote.” Aplt.’s
*31
App., Vol. II, at 449 (emphasis added);
see Hiatt v. Colo. Seminary
, 858 F.3d
1307, 1316 (10th Cir. 2017) (using the same definition of “adverse employment
action”);
Annett v. Univ. of Kan.
,
Put otherwise, the ADA’s failure-to-accommodate proscription would not
be operating in a manner consistent with Congress’s purposes of promoting full
participation and equality of opportunity if employees such as the blind law clerk
in our hypothetical could not invoke the ADA simply because they have not been
subjected to an adverse employment action; in those circumstances, such
employees would be effectively impeded from operating at full capacity and
*33
“attain[ing] the same level of performance” as their peers who are not disabled.
29 C.F.R. pt. 1630, app. § 1630.9;
cf. Nawrot v. CPC Int’l
,
Our reasoning here echoes that in
Smith
, where our court, sitting en banc,
rejected the contention that the ADA’s reassignment duty merely creates a right
for employees to be
considered
for reasonable reassignments rather than creating
a right to actually receive such reassignments.
See
We likewise cannot accept the proposition that the ADA—which by its
plain terms affirmatively imposes on employers a reasonable-accommodation
obligation,
see
42 U.S.C. § 12112(a), (b)(5)(A)—should be construed in a manner
that does not permit the statute to effectively ensure that
all
qualified disabled
employees actually receive such an accommodation, but instead
only
such
disabled employees that have
also
suffered an adverse employment action.
Adopting such a construction of the statute would have the effect of significantly
restricting the scope of the ADA’s reasonable-accommodation obligation through
the use of language (i.e., “adverse employment action”) that does not even appear
in the statute’s text. The “promise” of equal opportunity and full participation
that this reasonable-accommodation obligation provides qualified disabled
individuals would be rendered substantially “hollow.”
Smith
,
4
Significantly, the understanding of the requisite elements of an ADA failure-to-accommodate claim found in our controlling precedents is consistent with the pronouncements of the EEOC, the federal agency charged with administering the statute. See 42 U.S.C. § 12116; 29 C.F.R. §§ 1630.1–.16; see also Brennan, supra , at 505 (“The EEOC’s regulations and Interpretive Guidance *37 on the ADA also suggest an adverse employment action is not an element of a failure to accommodate claim.”).
More specifically, the EEOC regulations implementing the ADA’s
protections state that “[i]t is unlawful for a covered entity not to make reasonable
accommodation to the known physical or mental limitations of an otherwise
qualified applicant or employee with a disability, unless such covered entity can
demonstrate that the accommodation would impose an undue hardship on the
operation of its business.” 29 C.F.R. § 1630.9(a). This formulation of the
statute’s reasonable-accommodation requirement not only omits any mention of an
adverse-employment-action component, but also implicitly rejects by this
omission the notion that there is such a component in a failure-to-accommodate
claim.
See, e.g.
, A NTONIN S CALIA & B RYAN A. G ARNER , R EADING L AW : T HE
I NTERPRETATION OF L EGAL T EXTS § 10, at 107 (2012) (discussing the operation of
the “negative-implication canon”). Indeed, absent undue hardship, the regulation
explains, a covered entity “unlawful[ly]” violates the ADA by not reasonably
accommodating a disabled employee. 29 C.F.R. § 1630.9(a). Full stop. And, as
this court has noted, the EEOC’s “regulations to implement title I of the ADA . . .
. are entitled to a great deal of deference.”
Smith
,
Similarly, the EEOC’s interpretive guidance on the ADA and its
enforcement guidance for ADA failure-to-accommodate claims—each of which
we have referred to as “constitut[ing] a body of experience and informed
judgment to which courts and litigants may properly resort for guidance,”
Smith
,
As for the EEOC’s enforcement guidance for failure-to-accommodate
claims, it similarly notes that “[t]he duty to provide reasonable accommodation is
a
fundamental statutory requirement
.” U.S. E QUAL E MP ’ T O PPORTUNITY
C OMM ’ N , EEOC-CVG-2003-1, E NFORCEMENT G UIDANCE ON R EASONABLE
*39
A CCOMMODATION AND U NDUE H ARDSHIP U NDER THE ADA (2002),
https://www.eeoc.gov/policy/docs/accommodation.html (emphasis added). That
document also states, under the heading of “Burdens of Proof,” that “[o]nce the
plaintiff has shown that the accommodation s/he needs is ‘reasonable,’ the burden
shifts to the defendant/employer to provide case-specific evidence proving that
reasonable accommodation would cause an undue hardship in the particular
circumstances”; notably, it makes absolutely no mention of a need for the affected
employee to show an adverse employment action
before
the proof burden shifts to
the employer.
Id.
(citing
US Airways
,
In sum, though not determinative, it is significant that the views of the EEOC—that is, the federal agency charged with administering the ADA— *40 concerning the requisite elements of an ADA failure-to-accommodate claim, are in sync with our own, as found in our controlling case law. That is to say, the EEOC agrees with our precedential view that an adverse employment action is not a requisite element of a failure-to-accommodate claim.
5
If all of the foregoing were not enough, none of our sister circuits has regularly incorporated an adverse-employment-action requirement into an ADA failure-to-accommodate claim. Cf. 3C K EVIN F. O’M ALLEY ET AL ., F EDERAL J URY P RACTICE & I NSTRUCTIONS § 172:21, Westlaw (database updated Aug. 2020) (leading source of pattern jury instructions used by federal courts nationwide omitting an adverse employment action from the elements of an ADA failure-to-accommodate claim and providing that a plaintiff must establish that “Defendant failed to provide [ specify accommodations in dispute ] or any other reasonable accommodation” (brackets and italics in original)). More specifically, the overwhelming majority of the other circuits either have consistently declined to incorporate an adverse-employment-action requirement into an ADA failure-to- accommodate claim or have only incorporated such a requirement in name only because they have considered an employer’s failure to accommodate to be a form of adverse employment action. Cf. Brennan, supra , at 507 (stating, while discussing the relevant approaches of both federal district and circuit courts, that *41 “[w]hen courts have been faced with the issue of whether an adverse employment action is needed to establish a prima facie failure to accommodate claim,” “the majority” has concluded that it is “not” needed). Though the decisions in the remaining circuits are not entirely uniform—that is, the decisions within these circuits (i.e., intra-circuit) do not all point in the same direction—the predominant view of these decisions does not support the incorporation of an adverse- employment-action requirement into an ADA failure-to-accommodate claim. The critical point, however, bears restating: our research has not revealed even one circuit that has regularly incorporated an adverse-employment-action requirement into an ADA failure-to-accommodate claim. Thus, if we were to do so, we would be standing alone.
To be more concrete, no less than six circuits—the First, Fourth, Fifth,
Sixth, Eleventh, and the D.C. Circuit—either state, or strongly suggest, that there
is no adverse-employment-action requirement in ADA failure-to-accommodate
claims.
See Carroll v. Xerox Corp.
,
Two other circuits—the Third and the Eighth—typically have purported to
incorporate an adverse-employment-action requirement into their ADA failure-to-
accommodate claims.
See, e.g.
,
Dick v. Dickinson State Univ.
,
Thus, though the Third Circuit and the Eighth Circuit typically have purported to include an adverse-employment-action requirement in their failure- to-accommodate claims, an employer’s liability actually stems from no more than *48 the employer’s failure to make a reasonable accommodation, which is deemed an adverse employment action. In sum, in these two circuits, there is no need for plaintiffs to demonstrate, in addition to the employer’s failure to provide a reasonable accommodation, that they also suffered “a significant change in employment status .” Aplt.’s App., Vol. II, at 449 (emphasis added). Accordingly, focusing on the substance and not the form, we find that these two circuits are virtually indistinguishable from those that do not have an adverse-employment- action requirement at all in their failure-to-accommodate claims. [14]
And while the decisions in the Seventh, Second, and Ninth Circuits are not
entirely uniform, the predominant view of the decisions in these circuits does not
support the incorporation of an adverse-employment-action requirement into an
ADA failure-to-accommodate claim. More specifically, the Seventh Circuit has
explicitly stated that “[n]o adverse employment action is required to prove a
failure to accommodate.”
EEOC v. AutoZone, Inc.
,
To be sure, in one decision from the late 1990s, the Seventh Circuit
remarked that “to state a prima facie case of disability discrimination for failure
to accommodate the disability, a plaintiff must demonstrate . . . that she was
discharged because of her disability.”
Foster v. Arthur Andersen, LLP
, 168 F.3d
1029, 1033 (7th Cir. 1999),
abrogation on other grounds recognized by Serwatka
v. Rockwell Automation, Inc.
,
In a similar vein, what appears to be the predominant view of the Second
Circuit is expressed in cases like
McMillan v. City of New York
,
And, lastly, the story in the Ninth Circuit is similar. The predominant view
gleaned from the cases there may be stated succinctly: an adverse employment
action is not a requisite element of an ADA failure-to-accommodate claim.
See,
e.g.
,
Snapp v. United Transp. Union
,
To be sure, the County relies on one Ninth Circuit decision that stands
against this significant weight of intra-circuit authority.
See Samper v.
Providence St. Vincent Med. Ctr.
,
In sum, from this survey of the decisions of our sister circuits, the critical
takeaway is this:
none
of our sister circuits has regularly incorporated an adverse-
employment-action requirement into an ADA failure-to-accommodate claim.
And, consequently, if we were to do so, we would be standing alone. Of course,
we are free to do so, but we are reluctant to effectively create a circuit split (or at
the very least something very closely akin to it), especially where so many circuits
would be lined up against us.
See United States v. Thomas
,
C
Despite this virtual mountain of contrary legal authority and practice—in
this and other circuits—the district court nevertheless instructed the jury here that
an adverse employment action was a requisite element of an ADA failure-to-
*55
accommodate claim. In so doing, the court effectively read the relevant statutory
text as including language that it undisputedly does not—that is, the term
“adverse employment action.” As we noted early on,
see
Part II.A
supra
, this
mode of statutory interpretation—which effectively adds words to the statute—is
generally impermissible, and it is so here,
see, e.g.
,
Dean
,
First, the express incorporation of § 12112(a)’s terms-conditions-and- privileges-of-employment language into an ADA failure-to-accommodate claim is unnecessary because that claim necessarily implicates and provides particularized, concrete expression to that terms-conditions-and-privileges-of-employment language. In other words, to be actionable under Title I of the ADA, an *56 employer’s failure to “mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability,” id . § 12112(b)(5)(A), necessarily—indeed, as a matter of logic and common sense—must involve (i.e., be “in regard to”) that qualified person’s “terms, conditions, and privileges of employment,” as specified in § 12112(a). Therefore, it is unnecessary for a court to expressly incorporate § 12112(a)’s terms- conditions-and-privileges-of-employment language into an ADA failure-to- accommodate claim to ensure that this language, in substance, is taken into account. And, second, the term “adverse employment action”—as used by the district court in its instructions and as understood in our precedent—is not synonymous with the statutory language “terms, conditions, and privileges of employment.” Therefore, even if a court desired (without any obligation to do so) to expressly take into account the terms-conditions-and-privileges-of-employment language of § 12112(a) in an ADA failure-to-accommodate claim, it would be misguided and legally improper for it to use—in lieu of this language—the term “adverse employment action.”
1
To explain why the express incorporation of § 12112(a)’s terms-conditions-
and-privileges-of-employment language into an ADA failure-to-accommodate
claim based on § 12112(b)(5)(A) is unnecessary, we must spend a few moments
*57
shedding light on the structure and operation of the relevant statutory provisions.
Cf. Hamer
,
Recall that § 12112(a), entitled “General rule,” provides the general, employment-discrimination proscription of Title I of the ADA, stating the following:
No covered entity shall [1] discriminate against a qualified individual on the basis of disability [2] 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.
42 U.S.C. § 12112(a). As the inserted brackets evince, there are two salient components to § 12112(a). [17] First, the statute defines in general terms the nature of its protection: that is, the statute protects “a qualified individual” from being *58 “discriminate[d] against . . . on the basis of a disability.” Id. Second, the statute specifies what this protection is “in regard to”: it protects “qualified” persons from disability discrimination “in regard to” employment-related matters, particularly all matters relating to “terms, conditions, and privileges of employment.” Id. Stated otherwise, boiled down to its essence, § 12112(a)’s language defines, first, who is being protected from disability discrimination (i.e., “a qualified individual”) and, second, what kind of disability discrimination the protected individual is being protected from (i.e., disability discrimination “in regard to . . . terms, conditions, and privileges of employment”). The “General rule” of § 12112(a) thus evinces these two salient components.
Subsection 12112(b), entitled “Construction,” is inextricably intertwined with § 12112(a)’s “General rule.” Critically, it particularizes and makes concrete the second component of this rule by offering in non-comprehensive fashion examples of the kinds of disability discrimination that are “in regard to . . . terms, conditions, and privileges of employment.” Id. § 12112(a). Specifically, subsection (b) provides in pertinent part, the following:
As used in subsection (a), the term “discriminate against a qualified individual on the basis of disability” includes-- (1) limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee; *59 (2) participating in a contractual or other arrangement or relationship that has the effect of subjecting a covered entity’s qualified applicant or employee with a disability to the discrimination prohibited by this subchapter (such relationship includes a relationship with an employment or referral agency, labor union, an organization providing fringe benefits to an employee of the covered entity, or an organization providing training and apprenticeship programs);
(3) utilizing standards, criteria, or methods of administration--
(A) that have the effect of discrimination on the basis of disability; or
(B) that perpetuate the discrimination of others who are subject to common administrative control; (4) excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association; (5)(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity ; or (B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant;
(6) using qualification standards, employment tests or other selection criteria that screen out or tend to screen out *60 an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity; and
(7) failing to select and administer tests concerning employment in the most effective manner to ensure that, when such test is administered to a job applicant or employee who has a disability that impairs sensory, manual, or speaking skills, such test results accurately reflect the skills, aptitude, or whatever other factor of such applicant or employee that such test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of such employee or applicant (except where such skills are the factors that the test purports to measure).
Id. § 12112(b) (emphasis added). In other words, subsection (b) is inextricably intertwined with subsection (a)’s “General rule” because it underscores that a covered employer may not “discriminate against a qualified individual on the basis of disability,” while at the same time particularizing and making concrete the second component of the “General rule” through examples of what prohibited disability discrimination in the employment context looks like—that is, what it means to discriminate against qualified individuals “in regard to . . . terms, conditions, and privileges of employment.” Id. § 12112(a).
As to the second component, subsection (b)’s introductory clause, “As used in subsection (a),” clarifies that what follows in subsection (b) is not just some random list of ways that a covered employer may “discriminate against a qualified *61 individual on the basis of disability.” [18] Rather, subsection (b)’s enumerated examples particularize and give concrete expression to areas of discriminatory conduct against qualified individuals that are expressly referenced in subsection (a). Consequently, these examples necessarily implicate—i.e., are “in regard to”—those individuals’ “terms, conditions, and privileges of employment”; they are examples of discrimination “[a]s used in subsection (a).” Id. § 12112(b).
The upshot of all of this is that § 12112(b) is inextricably intertwined with the “General rule” of § 12112(a)—and, more specifically, the second component of that rule—and all of the examples of subsection (b) necessarily implicate the terms-conditions-and-privileges-of-employment language of subsection (a). For instance, one form of discrimination listed in § 12112(b) is “ limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee.” Id. § 12112(b)(1) (emphasis added). This category of discrimination necessarily implicates § 12112(a)’s terms-conditions-and- privileges-of-employment language—that is, it necessarily is “in regard to . . . *62 terms, conditions, and privileges of employment,” and, more specifically, may relate to “job application procedures, the hiring, advancement, or discharge of employees, employee compensation, [or] job training.” Id. § 12112(a). And another form of discrimination specified in subsection (b) is “ using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities,” unless doing so is necessary for the specific job position at issue. Id. § 12112(b)(6) (emphasis added). This form of discrimination, too, is patently “in regard to . . . terms, conditions, and privileges of employment.” Id.
§ 12112(a).
Importantly, a materially similar assessment can be made as to the form of discrimination at issue here—a failure to accommodate—which is embodied in § 12112(b)(5)(A). Though the effect may not be as obvious as where an employer affirmatively acts to limit or classify qualified disabled individuals “in a way that adversely affects the[ir] opportunities or status . . . because of the[ir] disability,” id. § 12112(b)(1), an employer’s failure to “mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability,” id. § 12112(b)(5)(A), where there is no “undue hardship” to the employer from doing so, is a form of disability discrimination that necessarily implicates the second component of § 12112(a)’s “General rule.”
That is to say, it is a form of disability discrimination that necessarily is “in
regard to . . . terms, conditions, and privileges of employment.”
Id.
§ 12112(a);
see id.
§ 12111(9) (“The term ‘reasonable accommodation’ may include . . . (A)
making existing facilities used by employees readily accessible to and usable by
individuals with disabilities; and (B) job restructuring, part-time or modified work
schedules, reassignment to a vacant position, acquisition or modification of
equipment or devices, appropriate adjustment or modifications of examinations,
training materials or policies, . . . and other similar accommodations for
individuals with disabilities.” (bolded text omitted));
see also Lincoln
, 900 F.3d
at 1205 (“[T]he term ‘reasonable accommodation’ refers to those accommodations
which presently, or in the near future, enable the employee to perform the
essential functions of his job
.” (alteration in original) (emphasis added) (quoting
Punt
,
With this statutory analysis in mind, it should be clear that a failure-to- accommodate claim predicated on § 12112(b)(5)(A) need not expressly incorporate the terms-conditions-and-privileges-of-employment language of § 12112(a)’s “General rule” (i.e., the second component of that rule) in order for *64 the failure-to-accommodate claim to adequately account in substance for that language. Put another way, even without expressly incorporating it as an element, § 12112(a)’s terms-conditions-and-privileges-of-employment language is, in substance, part and parcel of an ADA failure-to-accommodate claim. [19] Therefore, expressly incorporating that language into a failure-to-accommodate claim is unnecessary. [20] Accordingly, insofar as the district court’s belief was to the contrary, it was mistaken.
2
Furthermore, even if a district court were inclined (though not obliged) to expressly incorporate in some fashion § 12112(a)’s terms-conditions-and- privileges-of-employment language into its statement of an ADA failure-to- accommodate claim, it would be improper for the court to do so by equating the terms-conditions-and-privileges-of-employment language with the term “adverse employment action.” The term “adverse employment action”—as the district court used it in its instructions and as we have used it in our precedent—is not synonymous with § 12112(a)’s terms-conditions-and-privileges-of-employment language. Therefore, incorporating the “adverse employment action” term into the ADA’s failure-to-accommodate claim—as the court did here—would effectively involve adding language to the relevant statutory text that has no footing there—either expressly or in substance. Such addition-through- interpretation ordinarily is impermissible, and we see no reason it should not be so here. We now elaborate on these matters.
The district court instructed the jury here that, in order to rule in Ms. Exby-
Stolley’s favor, it needed to find an adverse employment action—that is, in the
words of the instruction, that she “was discharged from employment or suffered
another
adverse employment action
.” Aplt.’s App., Vol. II, at 440 (emphasis
added). The court defined the term “adverse employment action” as an action
*66
“constitut[ing]
a significant change in employment status
, such a[s] hiring, firing,
failing to promote, reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits.”
Id.
at 440, 449 (emphasis
added). The Panel Majority embraced the district court’s definition of an adverse
employment action.
See, e.g.
,
And it is not surprising that the Panel Majority did so because the district
court’s understanding of an adverse employment action is congruent with our
precedent.
See Annett
,
But this definition of “adverse employment action” is not synonymous with
the definition of “terms, conditions, and privileges of employment language”
found in controlling law. Take
Burlington Northern & Santa Fe Railway Co. v.
White
,
[Petitioner] contends . . . that in prohibiting discrimination with respect to “compensation, terms, conditions, or privileges” of employment, Congress [in enacting Title VII] was concerned with what petitioner describes as “tangible loss” of “an economic character,” not “purely psychological aspects of the workplace environment.” . . . We reject petitioner’s view. . . . The phrase “terms, conditions, or privileges of employment” evinces a congressional intent “‘to strike at the entire spectrum of disparate treatment . . . ’” in employment.
Burlington
and
Meritor Savings Bank
thus provide us with a broad
conception of the scope of the language “terms, conditions, [and] privileges of
employment.” Specifically, such language in a statutory provision ordinarily
signals that the provision covers a
wide range
of
employment
-
related
conduct.
And, though
Burlington
and
Meritor Savings Bank
commented on the “terms,
conditions, [and] privileges of employment” language contained in Title VII, we
discern nothing in the text of those decisions or otherwise that suggests their
reasoning does not readily apply to nearly identical language in the ADA.
See,
e.g.
,
Lanman v. Johnson County
,
§ 12112(a))).
In this regard, the Supreme Court’s interpretation of the “terms, conditions,
[and] privileges” language in Title VII as evincing an intent to cover “the
entire
spectrum
” of employment discrimination,
Meritor Sav. Bank
,
Guided by the reasoning in
Burlington
and
Meritor Savings Bank
, we
believe that the ADA’s language—“in regard to . . . [the] terms, conditions, and
privileges of employment,” 42 U.S.C. § 12112(a)—signals that actionable
discrimination must “affect employment or alter the conditions of the workplace,”
Burlington
,
As a consequence of this reasoning, we are simply unwilling to equate language that correctly signals the expansive sweep of the ADA’s employment- related, anti-discrimination mandate—i.e., the terms-conditions-and-privileges-of- employment language—with language—i.e., “adverse employment action”—that indicates that the discrimination proscription does not extend to circumstances where there is no “ significant change in employment status .” Aplt.’s App., Vol. II, at 440, 449 (emphasis added); see En Banc Br. for U.S. Amicus Curiae (“Gov’t’s Br.”) at 9 (“But the ‘adverse employment action’ standard, as defined by the district court, is inconsistent with that plain text. Congress did not limit *72 the statutory phrase ‘terms, conditions, and privileges of employment’ to economic harm or significant changes in employment status.”).
To be sure, we recognize that the Panel Majority posited that we should
feel comfortable treating “adverse employment action” as a “shorthand” for
§ 12112(a)’s terms-conditions-and-privileges-of-employment language because it
has served this function in the Title VII context.
Thus, insofar as the district court sought to effect this equivalency between § 12112(a)’s terms-conditions-and-privileges-of-employment language and the term “adverse employment action”—as the district court and our case law have defined it—it committed legal error. More specifically, to the extent that the district court’s mistaken belief about an ostensible obligation to expressly take into account § 12112(a)’s terms-conditions-and-privileges-of-employment language in an ADA failure-to-accommodate claim led the court—like the Panel Majority—to incorporate an adverse-employment-action requirement into that claim, the court committed legal error. And, to be clear, this is error irrespective of whether the district court was operating under such a mistaken belief: § 12112(a)’s terms-conditions-and-privileges-of-employment language is not synonymous with the term “adverse employment action,” and therefore (whatever *75 its rationale) the district court erred by effectively adding language to the statutory text that has no footing there—either expressly or in substance.
***
In sum, we reject the view that an adverse employment action is a requisite
element of an ADA failure-to-accommodate claim. Not only does the term
“adverse employment action” not appear in the plain text of the relevant statutory
provisions, but incorporating this element into an ADA failure-to-accommodate
claim would be contrary to (1) our controlling precedent; (2) the inherent nature
of a failure-to-accommodate claim, as contrasted with a disparate-treatment claim;
(3) the general remedial purposes of the ADA; (4) the EEOC’s understanding of
the elements of an ADA failure-to-accommodate claim; and (5) the regularly
followed practices of all of our sister circuits. Accordingly, the district court
erred in incorporating an adverse-employment-action requirement into its
instructions to the jury concerning Ms. Exby-Stolley’s ADA failure-to-
accommodate claim. In doing so, the district court did not “correctly state[] the
governing law.”
Woolman
,
III
Under the circumstances here, the district court’s instructional error
constrains us to reverse its judgment. Specifically, where “the district court has
given a legally erroneous jury instruction, the judgment must be reversed if the
*76
jury might have based its verdict on the erroneously given instruction.”
Frederick
v. Swift Transp. Co.
,
Here, based on the record, we conclude with little difficulty that we must reverse: the jury returned a verdict for the County after expressly indicating on the Verdict Form that Ms. Exby-Stolley had failed to prove that she was either “discharged from employment,” “not promoted,” or subjected to any “other adverse action” by the County. Aplt.’s App., Vol. II, at 419. Therefore, there is much more than “a slight possibility” here that the jury based its verdict on the faulty instruction regarding an adverse employment action. We must reverse.
IV
Because our reversal of the district court’s judgment will result in remand
for a new trial, we pause in closing to address a purely legal issue that Ms. Exby-
*77
Stolley presented in a contention of error on appeal and that is likely to recur on
retrial. “[W]e think it proper for us to decide this issue for the guidance of the
district court on remand.”
Colo. Visionary Acad. v. Medtronic, Inc.
, 397 F.3d
867, 876 (10th Cir. 2005). Specifically, Ms. Exby-Stolley argued that “the
district court improperly failed to instruct the jury that undue hardship is an
affirmative defense and that the burden of persuasion lies with the County.”
At trial, over Ms. Exby-Stolley’s objection, the district court refused to
instruct the jury that the County bore the burden of proof on an undue-hardship
defense. The district court reasoned that it did not “believe” that undue hardship
“is, in fact, an affirmative defense at trial.” Aplt.’s App., Vol. V, at 1189–90;
see
id.
at 1185 (noting, as to undue hardship, “I don’t think this is an affirmative
defense”). The ADA, however, clearly states that the employer—to avoid liability
on a failure-to-accommodate claim—must “demonstrate that the accommodation
would impose an undue hardship.” 42 U.S.C. § 12112(b)(5)(A);
see US Airways
,
V
For the foregoing reasons, we REVERSE the district court’s judgment and REMAND for a new trial consistent with this opinion.
16-1412, Exby-Stolley v. Board of County Commissioners McHUGH , Circuit Judge, dissenting, joined by Tymkovich , Chief Judge, and Kelly , Eid , and Carson , Circuit Judges; Hartz , Circuit Judge, also joins except as to section III.B.
Because I am unwilling to ignore twenty-five words Congress placed in the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12111–17, I cannot join the majority opinion. And because the jury instructions in this case are consistent with the plain meaning of those twenty-five words as applied to the allegations advanced by Ms. Exby-Stolley, I respectfully dissent.
To explain my reasoning, I proceed in four parts. First, I examine 42 U.S.C. § 12112(a) of the ADA, as modified by § 12112(b). I conclude that § 12112(b) defines only one of the two express requirements of § 12112(a). Second, I consider the reasons advanced by the majority for ignoring the second requirement of § 12112(a). Third, I address Ms. Exby-Stolley’s burden in proving the remaining requirement of § 12112(a). In doing so, I look for guidance to the decisions interpreting an analogous provision found in Title VII of the Civil Rights Act of 1964 (“Title VII”). And finally, in the fourth section, I review the jury instructions to assess whether they correctly framed the elements of Ms. Exby-Stolley’s claim. Concluding that they did, I would affirm the decision of the district court.
I. REQUIREMENTS OF § 12112
The issue before this court is the proper interpretation of Title I of the ADA with
respect to the requirements for proving a failure-to-accommodate claim. “In statutory
construction, we begin ‘with the language of the statute.’”
Kingdomware Techs., Inc. v.
*82
United States
,
“In the ADA Congress provided not just a general prohibition on discrimination
‘because of [an individual’s] disability,’[
[2]
] but also seven paragraphs of detailed
description of the practices that would constitute the prohibited discrimination.”
Univ. of
Tex. Sw. Med. Ctr. v. Nassar
,
Here, Ms. Exby-Stolley alleges discrimination based on one of those specified practices: “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such [employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such [employer]” (failure to accommodate). Id. § 12112(b)(5)(A). According to the majority, establishing discrimination under § 12112(b)(5)(A) is enough, standing alone, to satisfy Ms. Exby-Stolley’s burden under § 12112(a). I disagree.
To be sure, § 12112(b) provides that a failure to accommodate satisfies the discrimination clause of § 12112(a). But in my view, it does nothing to excuse Ms. Exby-Stolley from the second requirement of § 12112(a)—the in-regard-to clause. Given that § 12112(b) identifies employment practices that violate § 12112(a)’s *84 prohibition against “discriminat[ing] against a qualified individual on the basis of disability,” the proper reading of § 12112(a) as applied to the present facts is: “No [employer] shall [fail to accommodate] 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.” 42 U.S.C. § 12112(a). By its plain terms, § 12112(b) speaks directly to satisfaction of the discrimination clause but is silent as to the twenty-five words Congress included in the in-regard-to clause. In my view, then, the in-regard-to clause must be satisfied by something more than an employer’s failure to accommodate.
The ADA Amendments Act of 2008 (“ADAAA”) bolsters my conclusion that the in-regard-to clause is a separate requirement that must be satisfied even when showing discrimination under § 12112(b)(5)(A). Before the ADAAA, § 12112(a) made it unlawful for an employer to “discriminate against a qualified individual with a disability because of the disability of such individual.” 42 U.S.C. § 12112(a) (2006). And subsection (b) provided, “[a]s used in subsection (a) of this section, the term ‘discriminate’ includes” the seven enumerated practices. The ADAAA struck the language “with a disability because of the disability of such individual” from § 12112(a) and replaced it with “on the basis of disability.” ADA Amendments Act of 2008, Pub. L. No. 110–325, § 5(a)(1), 122 Stat. 3553 (2008). And Congress replaced “discriminate” in subsection (b) with “discriminate against a qualified individual on the basis of disability.” Id. § 5(a)(2). Simply put, in 2008, Congress intentionally expanded the portion of subsection (a) satisfied by the acts listed in subsection (b) from “discriminate” to “discriminate against a qualified individual
4
on the basis of disability.” But Congress did not expand subsection (b) to satisfy the entirety of subsection (a), including the in-regard-to clause. Congress’s deliberate choice to expand subsection (b) to cover more, but not all, of the requirements imposed under subsection (a), emphasizes that the actions in subsection (b) do not satisfy the in-regard-to clause.
By ignoring the in-regard-to language, the majority violates the surplusage canon of statutory construction, which provides: “If possible, every word and every provision is to be given effect . . . . None should be ignored. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts § 26, at 174 (2012) (“A. Scalia & B. Garner”). Congress could have, but did not, eliminate the in-regard-to clause for failure to accommodate claims. Consequently, I would not read that language out of the statute. See id. (“The surplusage canon holds that it is no more the court’s function to revise by subtraction than by addition.”). Instead, I approach § 12112(a) with the goal of arriving at a construction that gives meaning to both the discrimination clause and the in-regard-to clause.
Before explaining my construction of the in-regard-to clause, I first respond to the reasons provided by the majority for assigning no meaning to that requirement. To be sure, the majority provides a thorough defense of its position. In my view, however, it offers no rationale that grants us permission to rewrite § 12112(a).
5
II. RESPONSE TO THE MAJORITY
Despite the plain statutory construction that leaves the in-regard-to clause in place for failure-to-accommodate claims, the majority holds we can ignore these twenty-five words adopted by Congress for five reasons. First, the majority contends that our controlling precedent excuses plaintiffs advancing a failure-to-accommodate claim from establishing that such failure 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.” Second, the majority concludes the absence of the in-regard-to requirement is apparent from the inherent differences between disparate-treatment and failure-to-accommodate claims. Third, the majority reasons that inclusion of such a requirement would be contrary to the general remedial purposes of the ADA. Fourth, the majority is convinced that the Equal Employment Opportunity Commission (“EEOC”), the agency responsible for administering the ADA, does not require failure-to-accommodate claimants to satisfy the in-regard-to requirement. And, finally, the majority is persuaded by the weight of authority from our sister circuits. I address each of these arguments in turn.
A. Existing Precedent According to the majority, our prior decisions have held that a plaintiff need not meet the requirements of the in-regard-to clause in a failure-to-accommodate case. See Maj. Op., Part II.B.1. Although I agree we have issued decisions that do not list satisfaction of the in-regard-to clause as an element of such a claim, this is the first time the issue has been placed squarely before this court. As the panel majority noted, “not a
6
single published opinion has even mentioned that the question was raised by a party, nor
is there a single published opinion in which the answer to the question would have
affected the outcome of the appeal.”
Exby-Stolley v. Bd. of Cnty. Comm’rs
,
The decisions we
are
bound by do not resolve this issue. The Supreme Court has
addressed an ADA failure-to-accommodate claim in only one case:
U.S. Airways, Inc. v.
Barnett
,
In the only failure-to-accommodate case this court has previously considered en
banc, we accurately listed the elements of the claim to include a prong designed to satisfy
the in-regard-to clause. In
Smith v. Midland Brake, Inc.
, we were faced with the
following question: “if a person is a ‘qualified individual with a disability’ and a
*88
reasonable accommodation is not available to enable that employee to perform the
essential functions of his or her existing job, what is the scope of the employer’s
obligation to offer that employee a reassignment job?”
[t]he unvarnished obligation derived from the statute is this: an employer discriminates against a qualified individual with a disability if the employer fails to offer a reasonable accommodation. If no reasonable accommodation can keep the employee in his or her existing job, then the reasonable accommodation may require reassignment to a vacant position so long as the employee is qualified for the job and it does not impose an undue burden on the employer.
Id. at 1169.
We then set out the elements of a prima facie case of failure-to-accommodate, explaining the employee must show
(1) The employee is a disabled person within the meaning of the ADA and has made any resulting limitations from his or her disability known to the employer;
(2) The preferred option of accommodation within the employee’s existing job cannot reasonably be accomplished[;]
(3) The employee requested the employer reasonably to accommodate his or her disability by reassignment to a vacant position, which the employee may identify at the outset or which the employee may request the employer identify through an interactive process, in which the employee in good faith was willing to, or did, cooperate;
(4) The employee was qualified, with or without reasonable accommodation, to perform one or more appropriate vacant jobs within the company that the employee must, at the time of the summary judgment proceeding, specifically identify and show were available within the company at or about the time the request for reassignment was made; and (5) The employee suffered injury because the employer did not offer to reassign the employee to any appropriate vacant position .
Id. at 1179 (emphasis added). The plaintiff is also required to prove each of these five
8
elements at trial. Id. Importantly, we recognized that the failure to reassign was not enough, standing alone, to make out the claim. Instead, the employee must also show injury as a result of that failure.
The majority’s reliance on other decisions from this court to argue we have
endorsed a prima facie case for failure to accommodate that does not include an injury
“in regard to” employment—often referred to as an adverse employment action—is also
unpersuasive for another reason. In setting forth a prima facie claim for standard
disability discrimination, we have often failed to expressly include an adverse
employment action as an element.
See, e.g.
,
EEOC v. C.R. Eng., Inc.
,
9
adverse employment action is an element of such claims.
See, e.g.
,
C.R. Eng.
, 644 F.3d at
1038 & n.10;
Lincoln
,
In any event, because we are sitting en banc, we are free to interpret the ADA anew, giving appropriate meaning to the words used by Congress.
B.
Inherent Nature of a Failure-to-Accommodate Claim
According to the majority, failure-to-accommodate claims should be construed
differently than the other six types of discrimination identified by Congress in 42 U.S.C.
§ 12112(b) because the other types of discrimination claims target actions, while failure-
to-accommodate claims focus on the failure to act.
See
Maj. Op., Part II.B.2. While that
may be an accurate observation, I fail to see why it excuses us from applying the statute
according to its plain language. Nor do I agree that “it would verge on the illogical to
require failure-to-accommodate plaintiffs to establish that their employer
acted
adversely
toward them—when the fundamental nature of the claim is that the employer
failed to
act.
”
Id
. at 23. Indeed, the best indication of what Congress intended “is the statutory text
adopted by both Houses of Congress and submitted to the President.”
W. Va. Univ.
Hosps., Inc. v. Casey
,
Section 12112(a)’s second element does not require a plaintiff to establish that the employer acted adversely toward the plaintiff. Rather, it requires that the failure to accommodate be “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.” 42 U.S.C. § 12112(a). That is, the failure to accommodate must have had some negative impact on hiring, promotion, firing,
10
compensation, training, or, more expansively, “other terms, conditions, and privileges of employment.” Nothing about this language requires the plaintiff to prove that the employer took some affirmative action, in addition to the failure to accommodate. But the failure to accommodate is actionable only if it is “in regard to” the “terms, conditions, and privileges of employment.” Thus, in my view, the majority’s distinction between action and failure to act is a straw man that does not advance the statutory analysis.
Likewise, the absence of a discriminatory intent requirement in failure-to-
accommodate claims says nothing about the need to show a connection between the
failure and the terms, conditions, and privileges of employment. Congress did not intend
to create a “super” human resources department to dictate employer conduct irrespective
of its impact.
Cf. Jones v. Barnhart,
11
The majority advances sound reasons why Congress might have decided to excuse plaintiffs bringing failure-to-accommodate claims from satisfying the in-regard-to clause. But the plain language of the statute indicates Congress declined to do so. Instead, as with all other discrimination claims under the ADA, failure-to-accommodate claims include a requirement that the failure be in regard to the terms, conditions, or privileges of employment.
C.
Statutory Purpose
Next, the majority claims we can read out the in-regard-to clause because it is
inconsistent with the ADA’s remedial purpose.
See
Maj. Op., Part II.B.3. Although I
agree that consideration of a “‘statute’s . . . purpose’ is one of the traditional ‘tools’ of
statutory construction,”
id.
at 26 (quoting
Am. Fed’n of Gov’t Emps., Local 1592 v. Fed.
Labor Relations Auth.
,
In support of its position, the majority posits the hypothetical of a blind law clerk whose judge is satisfied with the clerk’s unaccommodated ability to produce two draft opinions per month, rather than the three draft opinions required of the judge’s sighted clerks. See Maj. Op. at 29–31. While the blind clerk may prefer the assistance of a
12
personal reader, she has suffered no adverse employment action in connection with the
judge’s decision to accept without complaint two draft decisions per month rather than
supply a reader as a reasonable accommodation. Unlike the majority, I do not believe
Congress, by passing the ADA, intended to micromanage employment decisions.
See
Jones
,
Nor do I think our en banc decision in
Smith
supports a contrary result.
See
Maj.
Op. at 33–35. The plaintiff in
Smith
suffered a traditional adverse employment action—
he was terminated after his employer (a brake manufacturer) was unable to find an
assignment within the light assembly department that he could safely perform, given his
physical limitations (muscular injuries and chronic dermatitis).
See
13
while agreeing to accept only this reduced output that could be produced safely, it is doubtful an ADA claim would lie. In that scenario, the plaintiff could continue to receive all the benefits of employment, despite the employer’s failure to reassign him.
Here the statute expressly includes the requirement that the failure to
accommodate be “in regard to” terms, conditions, or privileges of employment. And
unlike the majority, I am not persuaded that requiring a plaintiff bringing a claim under
an employment discrimination statute to tie the alleged discrimination to an adverse
employment action would render the promise of the statute “hollow.” Maj. Op. at 35
(quoting
Smith
,
D. Pronouncements of the EEOC Next, the majority claims its understanding of the requisite elements of an ADA failure-to-accommodate claim is consistent with the EEOC’s pronouncements. See Maj. Op., Part II.B.4. The majority first points to 29 C.F.R. § 1630.9(a), which states that “[i]t is unlawful for a[n employer] not to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless such [employer] can demonstrate that the accommodation would impose an undue hardship on the operation of its business.” This regulation, however, simply reiterates the failure-to-accommodate definition found in § 12112(b)(5)(A), one of the seven examples of discrimination that satisfy the first element of § 12112(a)’s general rule. It does not purport to define the second element of that rule—that the discrimination
14
be “in regard to . . . terms, conditions, and privileges of employment.” Indeed, the EEOC
spoke to that second element in a separate regulation, 29 C.F.R. § 1630.4(a)(1).
See infra
Part III.A.1. As a result, to the extent the in-regard-to language is deemed ambiguous, the
EEOC cannot be said to have provided an interpretation of that language in § 1630.9 to
which we would owe any deference.
See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,
Inc.
,
Likewise, because § 1630.9 addresses only § 12112(a)’s discrimination clause—
and is silent on the second element of Title I’s “general proscription,”
Smith
, 180 F.3d at
1160—I fail to see how that regulatory interpretation “implicitly rejects” the idea that the
in-regard-to clause embodies a distinct and meaningful requirement of failure-to-
accommodate claims.
See
Maj. Op. at 37. Even if the negative-implication canon could
be deemed to point in that direction,
see id.
at 35–36, the surplusage canon undoubtedly
points the opposite way. That is, if a plaintiff need satisfy only the discrimination clause
to gain relief for an employer’s failure to accommodate, the in-regard-to clause would be
rendered of no consequence.
See
A. Scalia & B. Garner, § 26, at 174–79 (discussing the
operation of the surplusage canon);
see also
Karl N. Llewellyn,
Remarks on the Theory of
Appellate Decision and the Rules or Canons About How Statutes Are To Be Construed
, 3
V AND . L. R EV . 395, 401 (1950) (“[T]here are two opposing canons on almost every
point.”). What is more, if § 1630.9
did
purport to lay out all the components of a failure-
to-accommodate claim, “[f]ull stop,” Maj. Op. at 37, its conspicuous omission of
§ 12112(a)’s in-regard-to requirement would leave that particular agency interpretation
susceptible to being found “manifestly contrary to the statute.”
Chevron
,
15
The majority also points to EEOC guidance documents in support of its understanding of the requisite elements of a failure-to-accommodate claim—specifically, interpretive guidance on Title I, see 29 C.F.R. pt. 1630 app., and enforcement guidance on failure-to-accommodate claims, see U.S. Equal Emp. Opportunity Comm’n, EEOC- CVG-2003-1, E NFORCEMENT G UIDANCE ON R EASONABLE A CCOMMODATION AND U NDUE H ARDSHIP U NDER THE ADA (2002),
http://www.eeoc.gov/policy/docs/accommodation.html. Such documents “do constitute a
body of experience and informed judgment to which courts and litigants may properly
resort for guidance.”
Smith
,
I find the persuasive power of this EEOC guidance to be minimal with respect to the issue at hand. As stated by the panel majority, although the EEOC’s enforcement
16
guidance “discusses at length the meaning of the reasonable-accommodation
requirement, it never purports to state all the elements of an ADA discrimination claim
based on a failure to accommodate.”
Exby-Stolley
,
This silence is rendered even less persuasive by the clear parallels between the in-
regard-to clause and similar language in Title VII, the statute upon which the ADA was
modeled.
See
42 U.S.C. § 2000e-2(a)(1) (Title VII disparate-treatment provision making
it unlawful “to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment”);
Lanman v. Johnson Cnty.
, 393 F.3d
1151, 1155 (10th Cir. 2004) (stating that the ADA’s “terms, conditions, and privileges of
employment” language was borrowed from Title VII and should mean the same in both
statutory contexts);
see also infra
Part III.A.2. In other words, “if it really intended to
express guidance on the matter,”
Exby-Stolley
,
17
element of § 12112(a), the two EEOC guidance documents cited by the majority are, in my view, unhelpful to our current task.
E. Practices of our Sister Circuits Lastly, the majority conducts a thorough review of decisions from our sister circuits in support of its conclusion that incorporating an adverse-employment-action requirement into the failure-to-accommodate cause of action would “effectively create a circuit split.” Maj. Op. at 54; see id. Part II.B.5. My survey of the circuit landscape reveals a decidedly muddier picture than the majority portrays.
The majority concedes that the decisions in other circuits “do not all point in the
same direction.”
Id.
at 39. What it fails to highlight, however, is that when faced with
such inconsistent intracircuit decisions, nearly every federal court of appeals follows the
general rule that the earlier panel opinion controls.
See, e.g.
,
McMellon v. United States
,
18
For example, the majority lumps the First and D.C. Circuits in with those that
“either state, or strongly suggest, that there is no adverse-employment-action requirement
in ADA failure-to-accommodate claims.” Maj. Op. at 41. The majority cites
Carroll v.
Xerox Corp.
,
To survive a motion for summary judgment on a failure-to-accommodate claim, a plaintiff ordinarily must furnish significantly probative evidence that he is a qualified individual with a disability within the meaning of the applicable statute; that he works (or worked) for an employer whom the ADA covers; that the employer, despite knowing of the employee’s physical or mental limitations, did not reasonably accommodate those limitations; and that the employer’s failure to do so affected the terms, conditions, or privileges of the plaintiff’s employment .
Higgins v. New Balance Athletic Shoe, Inc.
,
In both the First and D.C. Circuits, then, the earlier articulations of the requisite
elements of a failure-to-accommodate claim should control. The same holds true in the
Second, Seventh, and Ninth Circuits. While the majority asserts that “the predominant
view of [the decisions in these circuits] does not support the incorporation of an adverse-
employment-action requirement into an ADA failure-to-accommodate claim,” Maj. Op.
at 41, the earliest relevant panel decision cited by the majority from all three circuits
*101
points in the other direction.
See Parker v. Sony Pictures Ent., Inc.
,
I am not convinced by the majority’s attempt to dismiss these earlier, controlling
precedents. For example, despite the clear statement by the Ninth Circuit in
Samper v.
Providence St. Vincent Medical Center
, the majority nevertheless posits that the
predominant view from that circuit “may be stated succinctly: an adverse employment
action is not a requisite element of an ADA failure-to-accommodate claim.” Maj. Op. at
52 (citing
Snapp v. United Transp. Union
,
21
failure to provide a reasonable accommodation as
an act of discrimination
if the
employee is a ‘qualified individual,’ the employer receives adequate notice, and a
reasonable accommodation is available that would not place an undue hardship on the
operation of the employer’s business.” (emphasis added) (quoting only
§ 12112(b)(5)(A)));
cf. Exby-Stolley
,
Overall, however, the primary reason the authority cited by the majority from our sister circuits fails to persuade is not because it runs afoul of the “law of the circuit” doctrine, but because it strays from the text of Title I’s “general proscription.” Those opinions that list the prima facie elements of a § 12112(b)(5)(A) discrimination claim
22
without connecting the failure to accommodate to “job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment,” are reading words out of the ADA. The decisions from our sister circuits that do correctly ground themselves in § 12112(a)’s text—and thus correctly recognize the operation of the in-regard-to clause in conjunction with the discrimination clause—all require some showing that a failure-to-accommodate plaintiff suffered either an adverse employment action or some other detrimental alteration in the terms, conditions, or privileges of employment. See, e.g. , Marshall , 130 F.3d at 1099 (“As the language of § 12112(a) makes clear . . . .”).
III. INTERPRETING THE IN-REGARD-TO CLAUSE I now turn to what I view as the core question presented by this en banc appeal: what the in-regard-to clause requires. With guidance from decisions applying Title VII’s analogous “with-respect-to” provision, I conclude the plaintiff’s burden under the in-regard-to clause is less onerous than suggested by some of our decisions applying an “adverse employment action” requirement. But, even in a failure to accommodate case, the plaintiff must satisfy that burden.
Interpreting the role of the in-regard-to clause encompasses two inquiries: (1) What aspects of an employer’s relationship with an employee are covered by the in-regard-to clause?; and (2) When is discrimination taken “in regard to” those covered aspects? I undertake each inquiry in turn.
23
A. The Scope of the In-Regard-To Clause Although the language of the statute identifies specific situations covered by the in-regard-to clause, the EEOC has provided additional guidance on that question. Therefore, I begin by setting forth the relevant EEOC regulation. Next, I turn to precedent interpreting Title VII. Last, I discuss which aspects of an employer’s relationships are covered by the in-regard-to clause.
EEOC Regulations
Congress granted the EEOC the authority to issue regulations to carry out the ADA. See 42 U.S.C. § 12116. The EEOC has used this authority to adopt a regulation expounding on the aspects of employment that are protected under the ADA:
It is unlawful for a[n employer] to discriminate on the basis of disability against a qualified individual in regard to:
(i) Recruitment, advertising, and job application procedures; (ii) Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff, and rehiring; (iii) Rates of pay or any other form of compensation and changes in
compensation;
(iv) Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists; (v) Leaves of absence, sick leave, or any other leave; (vi) Fringe benefits available by virtue of employment, whether or not administered by the [employer];
(vii) Selection and financial support for training, including: apprenticeships, professional meetings, conferences and other related activities, and selection for leaves of absence to pursue training;
24
(viii) Activities sponsored by a[n employer], including social and recreational programs; and
(ix) Any other term, condition, or privilege of employment. 29 C.F.R. § 1630.4(a)(1).
Through this regulation, the EEOC has defined certain circumstances that fall within the scope of the ADA. But § 1630.4(a)(1) also contains the same catchall as § 12112(a): other terms, conditions, and privileges of employment. See 29 C.F.R. § 1630.4(a)(1)(ix). Thus, neither the statutory nor the regulatory categories are exclusive.
Title VII
As previously mentioned, this court has recognized the importance of interpreting
the ADA congruently with similar language in Title VII.
See Lanman
,
parallel purposes and remedial structures of the two statutes also support a consistent
interpretation.”);
see also Smith v. City of Jackson
,
Under the disparate-treatment provision of Title VII, it is “an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his
25
compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). I find it helpful to consider Title VII’s with-respect-to clause in interpreting the ADA’s in- regard-to clause. In doing so, I first examine the treatment of claims under Title VII for failure to accommodate religious practices, which require the plaintiff to show that the non-accommodation was with respect to the terms, conditions, or privileges of employment. Next, I explore the scope of Title VII’s “terms, conditions, or privileges of employment” language, which in my view is broader than some of our decisions suggest. Finally, I apply the lessons learned from that analysis to the ADA’s in-regard-to clause.
a. Failure to accommodate under Title VII
Given the clear parallels between the ADA and Title VII, it is instructive to
compare failure-to-accommodate claims under both statutes. In the Title VII context, a
failure-to-accommodate claim addresses an employee’s religious practices, rather than
her disability. And a plaintiff seeking to state a claim for an employer’s failure to
accommodate her religious practices cannot stand merely on the employer’s non-
accommodation—rather, she must show that she was subjected to an adverse
employment action in connection with that non-accommodation. Specifically, we require
an employee to show that she was either fired or not hired for failing to comply with an
employer requirement that conflicts with her religious belief.
See Thomas v. Nat’l Ass’n
of Letter Carriers
,
26
The Supreme Court’s most recent discussion of Title VII religious failure-to-
accommodate claims came in
EEOC v. Abercrombie & Fitch Stores, Inc.
,
The majority contends that the inclusion of an adverse-employment-action requirement in Title VII religious failure-to-accommodate claims can be explained by the fact that the cases mentioning that requirement all concern disparate treatment. See Maj. Op. at 14–15 n.3. And it is “wholly unremarkable” “[t]hat a disparate-treatment claim— under Title VII or the ADA—would require an adverse employment action.” Id. Therefore, the majority asserts that the inclusion of an adverse-employment-action requirement in Title VII failure-to-accommodate claims “sheds no light on the entirely separate question of whether such a requirement exists for failure-to-accommodate claims under the ADA, where a freestanding claim exists for such unlawful conduct.” Id.
The majority is correct that failure to accommodate under the ADA is a freestanding discrimination claim, while failure to accommodate under Title VII is not. Compare 42 U.S.C. § 12112(b)(5)(A) with 42 U.S.C. § 2000e-2(a). But the need for an adverse employment action is derived not from the disparate-treatment nature of the Title VII claim, but from the separate requirement that the disparate treatment have a significant impact on employment status. Thus, what matters for our purposes is not that failure to accommodate is brought as a disparate-treatment claim under Title VII and a
28
freestanding claim under the ADA, but that
both
claims must satisfy the “terms,
conditions, and privileges” element (either “with-respect-to” or “in-regard-to”). It is that
element that imposes the need for at least some showing of an alteration to the terms or
conditions of employment, and not the discrimination itself, however characterized.
See
Power v. Summers
,
The inclusion of failure-to-accommodate claims in Title VII’s disparate-treatment provision also undercuts the majority’s discussion of the purportedly sharp distinction between those two forms of discrimination. See Maj. Op., Part II.B.2; supra Part II.B. As previously discussed, the majority asserts that disparate-treatment claims require a showing of an employer action , while failure-to-accommodate claims require a showing of an employer omission. See Maj. Op. at 21. The problem with constructing this fundamental dichotomy is that Title VII includes a claim for religious discrimination that
29
has one foot in both worlds—that is both a disparate-treatment claim and a failure-to- accommodate claim.
Further, there is no doubt that ADA failure-to-accommodate claims are
meaningfully related to failure-to-accommodate claims brought under Title VII.
See
Thomas
,
I thus proceed to assess what that showing requires.
b. The scope of “terms, conditions, or privileges” under Title VII In interpreting Title VII, the Supreme Court has long recognized that “[t]he phrase ‘terms, conditions, or privileges of employment’ evinces a congressional intent ‘to strike at the entire spectrum of disparate treatment of men and women’ in employment.”
30
Meritor Sav. Bank
,
Title VII can be “violated by either explicit or constructive alterations in the terms
or conditions of employment.”
Ellerth
,
31
discrimination based on sex has created a hostile or abusive work environment.”
Meritor
Sav. Bank
,
In recognizing hostile work environment claims, the Supreme Court began by
noting that “[w]ithout question, when a supervisor sexually harasses a subordinate
because of the subordinate’s sex, that supervisor ‘discriminate[s]’ on the basis of sex.”
Id.
at 64 (second alteration in original). But “not all workplace conduct that may be
described as ‘harassment’ affects a ‘term, condition, or privilege’ of employment within
the meaning of Title VII.”
Id.
at 67. That is, Title VII is not meant to be “a general
civility code for the American workplace.”
Oncale
,
32
Harris
,
“The critical issue, Title VII’s text indicates, is whether members of one sex are
exposed to disadvantageous terms or conditions of employment to which members of the
other sex are not exposed.”
Oncale
,
The Supreme Court has contrasted hostile work environment claims with another
type of sexual harassment:
quid pro quo
. A
quid pro quo
claim exists where a
supervisor’s threats to retaliate if the employee does not comply with sexual demands are
carried out.
Ellerth
,
33
employment. Id. at 752. The Supreme Court summarized the difference in the proof required for these claims:
When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor’s sexual demands, he or she establishes that the employment decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VII. For any sexual harassment preceding the employment decision to be actionable, however, the conduct must be severe or pervasive.
Id. at 753–54 (emphases added).
“A tangible employment action constitutes a significant change in employment
status, such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits.”
Id.
at 761.
[7]
But
Ellerth
delineated tangible employment actions “only to ‘identify a class of [hostile work
environment] cases’ in which an employer should be held vicariously liable (without an
affirmative defense) for the acts of supervisors.”
Burlington N. & Santa Fe Ry. Co. v.
White
,
This court adopted the concept of an “adverse employment action” as a shorthand
for describing Title VII’s requirement that discrimination is actionable only if taken with
respect to hiring, firing, or the other terms, conditions, and privileges of employment. We
“liberally define[] the phrase ‘adverse employment action,’”
Sanchez
,
Notwithstanding our ostensibly liberal definition of the phrase, see Sanchez , 164 F.3d at 532, and despite the limitations of Ellerth ’s holding, this court has on occasion equated “adverse employment action” with “tangible employment action.” See, e.g. , Hiatt
35
v. Colo. Seminary
,
Thus, while the with-respect-to clause covers activity broader than identified in
Ellerth
, in using the term “adverse employment action” as a shorthand for the
requirements of that clause, we have sometimes unnecessarily narrowed its reach. But
even where there is no requirement that discriminatory conduct be undertaken with
respect to an employment action—as in Title VII anti-retaliation claims—the plaintiff
must still show more than de minimis harm.
See White
,
36
limited to discriminatory actions that affect the terms and conditions of employment,” that provision “protects an individual not from all retaliation, but from retaliation that produces an injury or harm”).
What the ADA Covers
Turning back to the ADA, because the in-regard-to clause must be given some meaning, I would interpret the clause as tying the claimed discrimination to employment by providing an expansive, but not exclusive, list of the protected relationships with the employer. See 29 C.F.R. § 1630.4(a)(1). And I would look to analogous Title VII jurisprudence to fill the remaining gaps.
When interpreting the ADA, this court has adopted Title VII’s concepts of both
adverse employment action,
see Lincoln
,
failure to accommodate. Instead, where the failure to accommodate results in a constructive alteration in those terms or conditions, the employee can satisfy § 12112(a)’s in-regard-to clause.
As mentioned, some of this court’s decisions have inappropriately limited the term “adverse employment action” (for both Title VII and the ADA) to Ellerth ’s narrower
37
definition of tangible employment action. Labels such as “hostile work environment,” “tangible employment action,” and “adverse employment action” are helpful to the extent they describe one method of satisfying the in-regard-to clause. But when these judicially coined phrases begin to take on a meaning of their own, divorced from the text of the statute, they can become more harmful than helpful to the goal of statutory construction. The concept of adverse employment action appears headed down this path, and I would turn back to the text of the statute to stop that progression.
Like Title VII’s substantive provision, the ADA uses terms such as “hiring,”
“discharge,” “employee compensation,” “job training,” and “other terms, conditions, and
privileges of employment,” 42 U.S.C. § 12112(a), thereby “explicitly limit[ing] the scope
of that provision to actions that affect employment or alter the conditions of the
workplace,”
see White
,
It is this more expansive reading of the in-regard-to clause that I believe governs a claim under the ADA. I turn now to application of that reading.
38
B.
Application of the In-Regard-To Clause
The last step in analyzing claims under the ADA is tying the discrimination clause
(through the specific discriminatory theory) to the in-regard-to clause. The requirement
that the discrimination be “in regard to” one of the protected aspects of an employer’s
relationship provides the final limitation on the type of discrimination actionable under
the ADA. As with Title VII’s substantive and anti-retaliation provisions, not every
discriminatory action (or omission) is covered by the ADA.
See Meritor
,
The method of tying together the discrimination and in-regard-to clauses varies for
each discrimination theory. For example, a disparate-treatment claim—where “the
protected trait . . . actually motivated the employer’s decision,”
Raytheon Co. v.
Hernandez
,
39
based on “employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity,” id. (quoting Int’l Brotherhood of Teamsters v. United States , 431 U.S. 324, 335 n.15 (1977))—brought under § 12112(b)(6) necessitates determining whether the “qualification standards, employment tests or other selection criteria” used by the employer “screen[ed] out or tend[ed] to screen out an individual with a disability or a class of individuals with disabilities” in regard to those covered aspects.
Failure-to-accommodate claims require a different method of proof. The plaintiff must show that the employer did not make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee” in regard to the terms or conditions of employment. 42 U.S.C. § 12112(a), (b)(5)(A). Thus, an employer violates the discrimination and in-regard-to clauses by failing to make reasonable accommodations that are necessary to ensure an otherwise qualified individual with a disability is placed on equal ground with other employees in regard to the covered employment relationships. As illustrated in the following hypotheticals, satisfaction of this two-prong claim need not be difficult.
Consider the blind law clerk discussed by the majority. See Maj. Op. at 29–31. Suppose the judge rejects the request for a reader, accepts two draft opinions per month from the blind clerk, while requiring three from each of his sighted clerks, and reduces the blind clerk’s pay by one-third. Under those circumstances, the failure to provide reasonable accommodation is “in regard to” employee compensation and would be actionable under the ADA.
40
I would view the claim differently if there are no employment-related
consequences of the blind law clerk’s failure to meet the three-opinion requirement. If the
judge does not provide a reasonable accommodation but also does not take any
disciplinary action against the blind clerk, I would conclude that the judge’s failure to
provide a reasonable accommodation was not in regard to the covered aspects of
employment.
Cf. Sanchez
,
To take the hypothetical one step further, I am convinced the blind clerk would have a claim under the ADA if the failure to accommodate constructively impacted her conditions of employment. Suppose the judge is content with the clerk’s two opinions per month, but her co-clerks are not. In response, those clerks make abusive comments, interfere with the blind clerk’s performance by rearranging the furniture, and generally subject her to a hostile work environment. Much like a claim under Title VII, if the failure to accommodate resulted in the disabled employee being subjected to pervasive harassment, I would conclude that it is in regard to the conditions of employment.
41
Thus, I am not persuaded by the amici’s [8] concern that the panel majority’s imposition of an adverse employment action requirement in failure to accommodate cases would prohibit claims by “a person with a condition affecting bladder control [] who soils herself because the employer refuses to grant her a workstation near the restroom,” a “veteran with PTSD” who “need[s but is prohibited from bringing to work] an emotional support animal to deal with anxiety and panic attacks,” and has “to endure anxiety and panic attacks throughout the workday,” PELA Br. at 5–6, or an employee who is forced to work in significant pain when the employer denies a request for reasonable accommodations.
Although the amici’s concerns might be valid if evaluated under the narrow
definition of adverse employment action I reject above, they do not carry the same weight
when the interpretation of the in-regard-to clause is true to its statutory language and
guidance from Title VII. Under my interpretation, these claims would be analyzed to
determine whether the impact of the failure to provide reasonable accommodation is
sufficiently severe or pervasive to alter the terms or conditions of employment.
Cf. Vande
Zande v. Wisc. Dep’t of Admin.
,
if working conditions inflict pain or hardship on a disabled employee, the employer fails to modify the conditions upon the employee’s demand, and the employee simply bears the conditions, this could amount to a denial of reasonable accommodation, despite there being no job loss, pay loss, transfer, demotion, denial of advancement, or other adverse personnel action.
Marshall
,
With this framework in mind, I turn to the jury instructions given in this case.
IV. JURY INSTRUCTIONS
The district court instructed the jury that Ms. Exby-Stolley must prove she “was discharged from employment or suffered another adverse employment action by [the County].” App. at 440. The jury instructions defined adverse employment action as “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Id. at 449. In other words, the district court instructed the jury that an adverse employment action is the equivalent of a tangible employment action under Ellerth .
For the reasons discussed above, I believe this construction is too narrow. The ADA’s in-regard-to clause covers a significantly greater swath of employment
43
relationships than those reflected in tangible employment actions. But that does not mean the restrictive definition included in the jury instructions resulted in prejudicial error based on the in-regard-to aspects at issue in this case.
The district court need not instruct the jury on every facet of the in-regard-to clause in every case. If, for example, a plaintiff alleges discrimination in regard to hiring, it would be unnecessarily confusing to instruct the jury that the in-regard-to clause includes “[j]ob assignments, job classifications, organizational structures, position descriptions, lines of progression, . . . seniority lists” and “[f]ringe benefits available by virtue of employment,” 29 C.F.R. § 1630.4(a)(1), because the plaintiff did not allege discrimination in regard to those aspects of the employment relationship. Requiring the court to instruct on every aspect of the in-regard-to clause in every case could result in a finding of liability for a discriminatory act not alleged or one that occurred outside the statute of limitations. Here, Ms. Exby-Stolley claimed she was terminated from employment based on her disability. The jury instructions, which included firing in the definition of adverse employment action, adequately covered this theory.
On appeal, Ms. Exby-Stolley makes two arguments challenging those instructions. First, she argues that a failure-to-accommodate claim does not require proving an adverse employment action. Although I would more broadly define “adverse employment action” to accurately reflect the standards imposed by the in-regard-to clause, I would hold that Ms. Exby-Stolley was required to satisfy that clause to prove her failure-to-accommodate claim. That is, unlike the majority, I do not read the statute as providing that satisfaction of the discrimination clause is sufficient.
44
Second, Ms. Exby-Stolley argues that if an adverse employment action was
required, the district court should have instructed the jury that constructive discharge is
an adverse employment action.
[9]
Ms. Exby-Stolley is correct that constructive discharge
satisfies the in-regard-to clause.
See Green v. Brennan
,
For these reasons I would conclude that the jury instructions in this case, at least in
relation to the allegations raised, “accurately informed the jury of the governing law,”
Sherouse v. Ratchner
,
V. CONCLUSION
Section § 12112(b) of the ADA identifies seven circumstances that satisfy the discrimination clause in § 12112(a), one of two express requirements in Title I’s general proscription of employment discrimination on the basis of disability. But the construction of § 12112(a), as dictated by its plain language, does not allow those enumerated *126 examples of discrimination to displace the second express requirement—the in-regard-to clause. Because the majority fails to give effect to that independent requirement, I cannot join in its analysis. Instead, reviewing the jury instructions in light of the allegations advanced, I would uphold the jury’s verdict. Accordingly, I respectfully dissent.
46
16-1412, Exby-Stolley v. Board of County Commissioners HARTZ , J., Circuit Judge, joined by TYMKOVICH , C.J., dissenting.
I join almost all of Judge McHugh’s dissent. I write separately only to note the minor difference in our views and to express a few other observations about the dispute before the en banc court. I will limit any repetition of what already appears in that dissent and in my panel opinion.
My sole discomfort with Judge McHugh’s dissent concerns the discussion of the scope of the ADA provision restricting discrimination prohibited by the Act to discrimination “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.” 42 U.S.C. § 12112(a). This provision is similar to provisions limiting liability under other antidiscrimination statutes, in particular Title VII, which restricts liability to discrimination “with respect to [an individual’s] compensation, terms, conditions, or privileges of employment.” 42 U.S.C. § 2000e-2(a). The Title VII language is often paraphrased as requiring proof of an adverse employment action. Following that tradition, I will refer to the above-quoted language of the ADA as the adverse-employment-action requirement.
I have concerns that this court’s prior caselaw has too narrowly circumscribed what constitutes an adverse employment action. Judge McHugh’s dissent may well provide the proper correction to that caselaw. But I think we should refrain from opining on that issue in this case. To begin with, the issue was not raised before the panel or in the panel opinions. Appellant Exby-Stolley’s argument was that there is no adverse- *128 employment-action requirement for a failure-to-accommodate claim. She argued that there should have been no instruction whatsoever on the notion of an adverse employment action, not that the instruction given was too restrictive. The gist of the opinion of the panel majority was quite simple and straightforward: First, the opinion looked for the source of the adverse-employment-action requirement in employment- discrimination claims and concluded that the requirement derives from the language in employment-discrimination statutes limiting liability to discrimination that is “with respect to” or “in regard to” the “terms, conditions, or privileges of employment.” In other words, the term adverse employment action is merely shorthand for expressing the terms-or-conditions statutory language. Second, the opinion looked at the text of § 12112 and concluded that the terms-or-conditions language of subsection (a) applied to all discrimination claims under that section, including failure-to-accommodate claims. Because this circuit has considerable precedent regarding the meaning of adverse employment action , and because Appellant did not argue that the meaning of the term should be modified for failure-to-accommodate cases, the panel proceeded, quite naturally in my view, to apply our caselaw to the case at hand.
Nor did this court’s order granting en banc rehearing request briefing on the meaning of adverse employment action . The only question that we requested the parties to address specifically in their supplemental briefing was “[w]hether an adverse employment action is a requisite element of a failure-to-accommodate claim under the [ADA].” Order at 2, Dec. 18, 2018. To be sure, the meaning of adverse employment action— that is, the meaning of the terms-or-conditions language in employment-
2
discrimination statutes—has been raised during the en banc proceedings. But the only brief to raise the issue is the amicus brief submitted by the federal government. It criticizes not only the panel opinion’s understanding of what constitutes an adverse employment action but also argues that this court has misinterpreted the statutory language in other contexts, including claims under Title VII.
Although the government’s brief and oral argument make a good case that we
have adopted a too-restrictive notion of adverse employment action, I think it would be
unfortunate for this court to abandon long-standing precedent without receiving briefing
from interested persons with other points of view. There are important issues that need to
be explored. I recognize the temptation to adopt a very broad interpretation of adverse
employment action, because all discrimination (including the failure to make reasonable
accommodations for a disabled person) is offensive. But the employment-discrimination
statutes were not intended to prohibit all offensive discriminatory conduct at the
workplace. For example, not all bigoted statements by supervisors to their subordinates
create a cause of action. Whether they create a prohibited hostile work environment
depends on “the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.”
Harris v. Forklift
Systems, Inc.
,
3
must be with respect to the “terms, conditions, or privileges of employment,” which in
itself could be interpreted quite broadly. It even goes beyond the Title VII language that
discrimination must be “with respect to . . . compensation, terms, conditions, or privileges
of employment.” The ADA requires that the discrimination be “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.”
42 U.S.C. § 12112(a). Under the ejusdem generis canon of statutory construction, the
words “other terms, conditions, and privileges of employment” should be read to mean
“terms, conditions, and privileges of employment” similar to “job application procedures,
the hiring, advancement, or discharge of employees, employee compensation, [and] job
training.”
See
, e.g.,
Babb v. Wilkie
,
One might argue that there is no need for an adverse-employment-action instruction in failure-to-accommodate cases because every failure-to-accommodate claim
4
necessarily concerns an adverse employment action. This may be true, for example, in
jurisdictions where a request for accommodation must be for an accommodation that
would enable the disabled employee to perform the essential functions of a job.
See
, e.g.,
Graves v. Finch Pruyn & Co., Inc.
,
In my view, it is worth awaiting an appropriate case in which there is focused argument on the scope of the adverse-employment-action requirement of the ADA, even though we may ultimately resolve the issue in the way recommended by Judge McHugh’s dissent. (On the other hand, if the Supreme Court decides to review this case, which could be very helpful to the lower courts, I am sure that it will be offered an ample supply of briefs that would be useful in construing the terms-or-conditions language in the various employment-discrimination statutes.)
I would also like to add some observations about the en banc opinion’s use of
judicial authority. None of the circuit cases cited in that opinion are binding on this en
banc court on the issue of whether an adverse employment action is required to state a
reasonable-accommodation claim. Their value to this court is in their persuasiveness. In
that respect, they are sorely lacking. Not one of those cases explains why there is no
adverse-action requirement. Not one addresses the textual argument made in Judge
McHugh’s dissent or the panel majority opinion. In only two or three was the issue
raised by the parties, and in only one (
Garrison v. Dolgencorp, LLC
,
6
sound, acute, and logical reasoning; by internal evidence that the case received the careful consideration of the court; and by the citation of pertinent authorities. Its value is diminished by the absence of any of these characteristics.”). I do not share the optimism of the en banc opinion that the authors of these opinions must have thoughtfully considered whether an adverse employment action was required to state a reasonable- accommodation claim. Perhaps my view is based only on self-examination, but I think it is asking quite a bit of judges to expect them to examine every nuance of the issues in the case, considering circumstances that not only are absent from the case before the judge but are rarely if ever present in litigation before the courts, and then to craft every sentence in their opinions so carefully that there can be no mistake about the limits of their statements of the law. It is not unusual for courts to use language that is too broad or imprecise. How often do appellate courts state when they review a grant of summary judgment that they will apply “the same standard as the district court”? Yet it would be foolish to apply the same standard as the district court when the district court applied the wrong standard. Consider also how often we state that a statute is constitutional or a jury instruction was correct, when we really mean only that we are rejecting the specific challenges to the statute or jury instruction in that case. In short, we should be reluctant to treat opinions as persuasive on propositions for which there is no supporting analysis.
My skepticism about whether the cited authorities considered whether an adverse employment action (or at least something relating to the terms, conditions, or privileges of employment) is required for a failure-to-accommodate claim is enhanced by what happened in this case. The en banc opinion points out that the EEOC regulations and
7
manual for the ADA discuss the reasonable-accommodation requirement without saying anything about an adverse-employment-action requirement, and it infers from this omission that the EEOC believes that there is no such requirement in failure-to- accommodate cases. I drew no inference from that omission, because the reasonable- accommodation regulations and manual are addressing only the law specifically stating the reasonable-accommodation requirement. There is no need to address global requirements in each portion of the regulations or manual that concerns specific types of discrimination. And indeed, the amicus brief of the federal government shows that the en banc opinion’s inference is incorrect. The amicus brief was in harmony with the panel majority, not the panel dissent, when it stated unequivocally that “to prevail on a failure- to-accommodate claim under Title I, a qualified individual must show that a denied accommodation pertains to her terms, conditions, or privileges of employment.” Government Amicus Br. at 14. (What it criticized about the panel opinion was this court’s interpretation—over the years and in claims under Title VII as well as the ADA— of the statutory language by, in the government’s view, defining adverse employment action too narrowly.) The government’s responses at oral argument forcefully confirmed its position that, contrary to the en banc majority opinion, the statutory language requiring that discrimination be “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”, 42 U.S.C. § 12112(a), applies to failure-to-accommodate claims.
8
Finally, a few words about the implications of the en banc opinion. I am confident that it will not escape the attention of the employment-law bar that all of the opinion’s textual argument against imposing an adverse-employment-action requirement applies to every employment-discrimination claim, whether under the ADA, Title VII, or otherwise. After all, the term adverse employment action does not appear in any of those statutes and all of those statutes define discrimination as conduct we would find offensive, often abhorrent, regardless of the effect on a victim’s employment. True, the en banc opinion also presents a policy reason for not imposing an adverse-employment-action requirement in failure-to-accommodate claims. But the argument strikes me as deeply flawed. In essence it states that Congress wanted to develop the full potential of every disabled employee and required employers to make all reasonable efforts to accomplish that, regardless of its impact on the disabled person’s employment. That is certainly a worthy aspiration. But is it any worthier than prohibiting racial, gender, or religious discrimination against every employee, even if the discrimination is only the “inconvenience” of a less-attractive office or more-distant parking space? It appears to me from the statutory language that Congress did not want to “make a federal case” of every incident of discrimination in the workplace—even failures to accommodate. But if we are to be consistent with the en banc opinion, this circuit will need to come up with some better justification for applying the adverse-employment-action requirement in typical employment-discrimination cases.
9
Notes
[1] In this en banc appeal, with one notable exception—that is, the undue-hardship issue, which we resolve infra in Part IV—we do not address the other matters that Ms. Exby-Stolley argued before the panel, specifically, whether the district court erred in refusing to either allow her to instruct the jury on a claim of constructive discharge or to argue constructive discharge in closing argument. The district court may address those matters on remand.
[2] A “qualified individual” is “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8).
[3] The fact that we have required an adverse employment action to
support
Title VII
religious-accommodation claims,
see Abercrombie & Fitch
Stores
,
[3] (...continued)
Title VII’s disparate-treatment provision, in discussing the claim at issue);
Abercrombie & Fitch Stores
,
[4] We observed in
C.R. England
that “[i]n order to demonstrate
‘discrimination,’ a plaintiff
generally
must show that he has suffered an ‘adverse
employment action because of the disability.’”
[4] (...continued) ‘limiting, segregating, or classifying a[n] . . . employee in a way that adversely affects the opportunities or status of such . . . employee because of the disability of such . . . employee.’” (third alteration in original) (second, third, and fourth omissions in original) (quoting 42 U.S.C. § 12112(b)(1))).
[5] A further clue that the district court was likely mistaken or confused in this manner is found in the fourth element of the court’s ADA failure-to- (continued...)
[5] (...continued)
accommodate jury instruction, where the court appears to have required the jury
to determine whether the County acted with invidious intent.
See
Aplt.’s App.,
Vol. II, at 440 (requiring Ms. Exby-Stolley to establish that her “disability was a
substantial or motivating factor that prompted Defendant to take that action”). As
noted, such invidious intent is irrelevant in an ADA failure-to-accommodate
claim.
See, e.g.
,
Punt
,
[6] During the en banc oral argument, we posed a hypothetical to the County that resembled this one in all material respects, and the County affirmatively agreed that the blind law clerk would have been denied an opportunity to fulfill her potential as a law clerk and that the ADA protects against exactly that outcome. See Oral Arg. at 55:01–56:32.
[7] Without much difficulty, we could envision a similar private-sector scenario—say, a salesperson who suffers from a hearing disability who works at a telephone call center selling satellite-television services. The employee is meeting the employer’s required sales targets but aspires to be the top salesperson in the company—for the prestige that comes with such an achievement and to (continued...)
[7] (...continued)
enhance her resume for future career opportunities—and believes that this can be
accomplished if she receives a reasonable accommodation. And assume, for
purposes of this hypothetical only, the following: (1) that certain modifications to
her company phone allowing her to more easily hear and converse with customers
would constitute such a reasonable accommodation under the ADA,
see
42 U.S.C.
§ 12111(9)(B) (defining “reasonable accommodation” to potentially include
“acquisition or modification of equipment or devices”), and (2) that such a
reasonable accommodation unquestionably would not impose an undue hardship
on the employer’s business operations. However, the employer denies the
employee’s request for this assumed reasonable accommodation—without even
exploring with her other possible reasonable accommodations—saying simply that
the employee’s performance is good enough. Though this employee has not been
fired, demoted, or otherwise suffered “a
significant change in employment
status
,” Aplt.’s App., Vol. II, at 449 (emphasis added), it is beyond peradventure
that the employee has been denied an opportunity “to compete on an equal basis”
with her fellow salespersons and the chance “to pursue those opportunities for
which our free society is justifiably famous,” 42 U.S.C. § 12101(a)(8). An
interpretation of the ADA’s failure-to-accommodate claim that would permit such
a result is one to be avoided.
See Hill v. Assocs. for Renewal in Educ., Inc.
, 897
F.3d 232, 239 (D.C. Cir. 2018) (holding that a reasonable jury could find that
plaintiff, a disabled amputee, satisfied the requirements of an ADA failure-to-
accommodate claim against his private nonprofit employer and, more specifically,
that “[a] reasonable jury could conclude that forcing [the plaintiff] to work with
pain when that pain could be alleviated by his requested accommodation violates
the ADA”),
cert. denied
,
[8] The foregoing analysis should reveal the inherent weakness of the
critique of the Dissent (McHugh, J.) of the blind-law-clerk hypothetical.
See
Dissent (McHugh, J.) at 12–13, 37–43 [hereinafter the Principal Dissent]. First, it
is not enough under the ADA that the judge did not subject the blind law clerk to
an adverse employment action; instead, the judge had an “unvarnished
obligation,”
Smith
,
[8] (...continued)
Dissent would have it, the “in-regard-to clause”—requires a disabled individual to
show (at the very least) that the employer’s failure to accommodate her disability
constructively altered the terms, conditions, or privileges of her employment and,
in that connection, caused her more than de minimis harm.
See
Principal Dissent
at 37 (noting that “the plaintiff can make out an ADA discrimination claim either
by showing an express change or disparity in the terms or conditions of
employment, or by showing a constructive change or disparity in those terms or
conditions
based on pervasive hostility or discomfort
(emphasis added));
id.
(“[W]here the failure to accommodate results in a constructive alteration in those
terms or conditions [of employment], the employee can satisfy § 12112(a)’s
in-regard-to clause.”);
id
. at 39 (“In short, the discrimination must be in regard to
the employment-related aspects covered by § 12112(a)
and
it must cause more
than de minimis harm.” (emphasis added)). But requiring disabled individuals to
satisfy this showing—even if it could be “easily” done,
id.
at 43—would be
improper and, more to the point, incompatible with the ADA’s central purposes,
as embodied in § 12112(b)(5)(A). As noted, the ADA is concerned with ensuring
that disabled individuals can fully participate in society and enjoy equal
opportunities in the workplace. And Congress has made the judgment that these
purposes are not fully furthered by merely ensuring that employers cannot inflict
non-de-minimis workplace injuries on disabled individuals; rather, these
employers must provide such individuals with reasonable accommodations, so that
they may “compete on an equal basis and . . . pursue those opportunities for which
our free society is justifiably famous.” 42 U.S.C. § 12101(a)(8). Stated
otherwise, the ADA is not simply concerned with shielding disabled individuals
from significant workplace harms but also with reasonably accommodating the
limitations of their disabilities so that they may “provide the Nation with the
benefit of their consequently increased productivity.”
Cleveland
,
[8] (...continued) conditions of [her] employment.” Id. at 41. By requiring the blind law clerk to make such a showing, the Principal Dissent diminishes the accommodation duty that the ADA imposes on the employer, while hindering the blind law clerk from competing on an equal basis with her fellow, non-visually-impaired clerks— thereby denying her the full enjoyment of the terms, conditions, and privileges of her employment.
[9] In
Colón-Fontánez v. Municipality of San Juan
,
[9] (...continued) an ADA failure-to-accommodate claim in Carroll , it offered in express and no uncertain terms its view that, for failure-to-accommodate claims, the adverse- employment-action requirement that is applicable in disparate-treatment cases is swapped out for the requirement that the employer “despite knowing of [the plaintiff’s] alleged disability, did not reasonably accommodate it.” 294 F.3d at 237. Moreover, Colón-Fontánez ’s sole direct citation for the general prima facie case it articulates is Carroll , which strongly suggests that Colón-Fontánez had no intention of staking out a position concerning the elements of an ADA failure-to-accommodate claim that was at odds with Carroll .
[10] See P ATTERN J URY I NSTRUCTIONS (C IVIL C ASES ) FOR THE F IFTH C IRCUIT § 11.10, at 200–01, 207 (P ATTERN J URY I NSTRUCTION C OMM . (C IVIL ) OF THE F IFTH C IRCUIT D IST . J UDGES A SS ’ N , 2020) (lacking, as an element in the pattern jury instructions for an ADA failure-to-accommodate claim, an adverse employment action).
[11] Accord E LEVENTH C IRCUIT P ATTERN J URY I NSTRUCTIONS (C IVIL C ASES ) § 4.12, at 1 (C OMM . ON P ATTERN J URY I NSTRUCTIONS OF THE E LEVENTH C IRCUIT J UDICIAL C OUNCIL , revised 2020) (omitting an adverse-employment- action element from the pattern jury instruction for a failure-to-accommodate claim under the ADA).
[12] A prior case from the D.C. Circuit, Marshall v. Federal Express (continued...)
[12] (...continued)
Corp.
,
[13] A panel of the Eighth Circuit has strayed from the path marked by
other Eighth Circuit panels addressing ADA failure-to-accommodate claims.
See
Fenney v. Dakota, Minn. & E. R.R. Co.
,
[14] In fact, a recent decision may suggest that the Eighth Circuit is
effacing completely whatever nominal, thin line has typically separated its
precedent from those circuits that have straightforwardly declined to incorporate
an adverse-employment-action requirement into an ADA failure-to-accommodate
claim.
See Garrison v. Dolgencorp, LLC
,
[14] (...continued) that typically has separated its precedent—albeit only nominally—from those circuits that have straightforwardly declined to incorporate an adverse- employment-action requirement into an ADA failure-to-accommodate claim.
[15] Indeed, as Ms. Exby-Stolley pointed out in oral argument,
see
Oral
Arg. at 19:16–19:51, the author of
Foster
joined—as a panel member—over ten
years later, the
AutoZone
decision, which expressly and clearly held that “[n]o
adverse employment action is required to prove a failure to accommodate,”
AutoZone
,
[16] As we noted supra , see Part II.A, we frequently refer to the latter- quoted language, in short, as “the terms-conditions-and-privileges-of-employment language.”
[17] Though drawing the wrong conclusion from this point, the Panel
Majority seemed to recognize as much, too, because it reproduced the statutory
text with the two brackets inserted in the same places.
See
[18] The Panel Majority mistakenly viewed the examples in subsection (b)
as in some sense distinct from the areas of discrimination specified in the second
component of the “General rule.”
See
[19] Thus, it should be patent from the foregoing analysis that, in predicating its position on the belief that we have somehow ignored the terms- conditions-and-privileges-of-employment language—what the Principal Dissent calls the “in-regard-to clause”—or rendered this language irrelevant to an ADA failure-to-accommodate claim, the Principal Dissent is fundamentally mistaken. See, e.g. , Principal Dissent at 1–5, 43-45. Suffice it to say that, properly understood, the statutory language that forms the basis for an ADA failure-to- accommodate claim, § 12112(b)(5)(A), is inextricably intertwined with and necessarily implicates the terms-conditions-and-privileges-of-employment language (i.e., the second component of § 12112(a)’s “General rule”).
[20] To be clear, a district court—in belt-and-suspenders fashion—may permissibly instruct a jury that, in order for the plaintiff to prevail on an ADA failure-to-accommodate claim, the plaintiff must establish that the claim was in regard to the plaintiff’s terms, conditions, or privileges of employment. In other words, we do not suggest that a court would err if it elected to include in its instructions a requirement that the employer’s failure to accommodate must be “in regard to” the employee’s terms, conditions, or privileges of employment. And we specifically discuss the proper meaning of the terms-conditions-and- privileges-of-employment language below. See Part II.C.2. But such an instruction is simply not necessary. And, for the reasons explicated below (i.e., Part II.C.2), it would be improper—in all events—for such an instruction to equate the terms-conditions-and-privileges-of-employment language with an adverse-employment-action requirement.
[21] The Panel Majority stated that the Supreme Court in
Burlington
“made the connection between adverse employment action and the statutory
terms-and-conditions-of-employment language.”
[21] (...continued) signals that the conduct the provision covers must “affect employment or alter the conditions of the workplace,” and that the absence of such language suggests that the provision’s covered conduct can transcend the workplace. Id. at 62. The Court said nothing about a connection between the terms-conditions-and- privileges-of-employment statutory language and an adverse-employment-action requirement, much less held that such a connection exists.
[22] Counsel for the Department of Justice’s Civil Rights Division, appearing as an amicus curiae, hypothesized that the Panel Majority’s “shorthand” theory—i.e., its view that “adverse employment action” is judicial shorthand for § 12112(a)’s terms-conditions-and-privileges-of-employment language—“ could be accurate if courts truly treated ‘adverse employment action’ as synonymous with the statutory language.” Gov’t’s Br. at 17 (emphasis added). Yet, in virtually the same breath, the Department’s counsel acknowledged that “many courts, including the district court here , construe ‘adverse employment action’ far more narrowly than actions that pertain to the ‘terms, conditions, and privileges of employment.’” Id. at 17–18 (emphasis added). In particular, the district court here interpreted the term “adverse employment action” to mean “a significant change in employment status .” Aplt.’s App., Vol. II, at 440, 449 (emphasis (continued...)
[22] (...continued)
added). As noted, this interpretation not only is consistent with our precedent,
see, e.g.
,
Annett
,
[23] The Panel Majority’s opposing assertion in this regard rested on a
weak foundation of out-of-circuit authority. For example, contrary to the Panel
Majority’s suggestion, the Eighth Circuit in
Kelleher v. Wal-Mart Stores, Inc.
,
[23] (...continued) therefore, the language is likely dictum in any event. See id. at 1098–99; see also supra note 12 (suggesting further reasons for rejecting the idea that this case supports the contention that “adverse employment action” functions as a shorthand for § 12112(a)’s terms-conditions-and-privileges-of-employment language). Moreover, it bears emphasis that—even if these snippets of language from Kelleher and Marshall lent any meaningful support to the “shorthand” theory that the Panel Majority advances (which is doubtful)—at the end of the day, as we discussed in Part II.B.5 supra , the Eighth Circuit and the D.C. Circuit (i.e., the courts issuing Kelleher and Marshall , respectively) have not held that an adverse employment action—at least in substance—is a requisite element of an ADA failure-to-accommodate claim. Therefore, for these reasons too, the Panel Majority’s “shorthand” theory is unpersuasive, and we reject it.
[24] Ms. Exby-Stolley has maintained that the County waived the right to
assert the undue-hardship defense by failing to raise the defense in its answer
and—more significantly—in the pretrial order. Even assuming that the County
failed to properly raise the defense in these documents, though the district court
may well have had the discretion to exclude the issue of undue hardship from
trial,
see, e.g.
,
Rios v. Bigler
,
[24] (...continued)
have been required to do so.
See MacCuish v. United States
,
[24] (...continued) the undue-hardship defense in its answer or in the pretrial order, the district court did not abuse its discretion in instructing the jury concerning the issue of undue hardship. However, we are constrained to conclude infra that the district court erred in how it instructed the jury concerning the matter.
[1] For clarity, I will refer to the first requirement as the “discrimination clause” and the second requirement as the “in-regard-to clause.” The “in-regard-to clause” is referenced by the majority as the “terms-conditions-and-privileges-of-employment clause.” I use different nomenclature to distinguish the “in-regard-to clause” of the ADA from the “with-regard-to” clause of Title VII, because both include the “terms- conditions-and-privileges-of-employment” language. Technically, there is a third clause that requires proving the discriminator is a covered entity under the ADA. The parties stipulated that the County regularly employed more than fifteen employees, thereby satisfying the definition of covered entity. See 42 U.S.C. § 12111(2), (5). 2
[2] In 2009, the language of 42 U.S.C. § 12112(a) was amended by replacing “with a disability because of the disability of such individual” with “on the basis of disability.” ADA Amendments Act of 2008, Pub. L. No. 110–325, § 5(a)(1), 122 Stat. 3553 (2008). 3
[3] In this regard, I also note that while the majority relies heavily on dicta from our past cases to help establish its position, see Maj. Op., Part II.B.1, it subsequently rejects similarly situated statements in extra-circuit authority that cut against its position, see id . at 40 n.9 (deeming a First Circuit opinion’s “articulation of the prima facie case for an ADA discrimination claim to be dictum,” because “[n]othing in [the opinion] turned on the contents of the third element of its articulated prima facie case”). 7
[4]
Higgins
deemed these requirements, including the requirement that the failure to
accommodate “affect[] the terms, conditions, or privileges of the plaintiff’s
employment,” to be “rather undemanding.”
[5] As the majority opinion notes, the D.C. Circuit went on to state:
We assume without deciding that if working conditions inflict pain or
hardship on a disabled employee, the employer fails to modify the
conditions upon the employee’s demand, and the employee simply bears
the conditions, this could amount to a denial of reasonable accommodation,
despite there being no job loss, pay loss, transfer, demotion, denial of
advancement, or other adverse personnel action. Such a scenario might be
viewed as the ADA equivalent of the hostile working environment claim
cognizable under other discrimination laws.
Marshall
,
[6] Disparate treatment and disparate impact “are the only causes of action under
Title VII.”
Abercrombie & Fitch Stores, Inc.
,
[7] It is important to note that Ellerth ’s definition of tangible employment action, along with the Court’s jurisprudence on hostile work environment claims, covers both the existence of discrimination ( i.e. , unfavorable treatment) and that it was taken with respect to hiring, firing, or the other terms, conditions, and privileges of employment. It is necessary to consider the required degree of unfavorable treatment separately from the aspects of employment that are protected. Additionally, Ellerth dealt only with discriminatory actions taken after commencement of employment, which is why it discussed tangible employment actions in terms of a change in employment status. Ellerth did not address discriminatory treatment existing since the inception of employment or the provision of benefits. 34
[8] The amici include the Colorado Plaintiff Employment Lawyers Association, the National Disability Rights Network, the National Employment Lawyers Association, and the United States. 42
[9] Importantly, this was the only challenge to the district court’s construction of
what constitutes an adverse employment action preserved by Ms. Exby-Stolley in her
opening brief.
See Adler v. Wal-Mart Stores, Inc.
,
[1] It is not clear to me where these authorities get the essential-functions-of-the-job requirement. I see nothing in the language of § 12112(b)(5)(A) that would impose that restriction. Perhaps the terms-or-conditions language of § 12112(a) could be the source. 5