The Tenth Circuit Court of Appeals has faced one of the least litigated issues under the ADA.  Is a failure to accommodate the restrictions of a disabled employee, itself, an adverse employment action?  Answer: no.

Almost all ADA failure to accommodate cases arise when the employee is let go because he or she is unable to do the essential functions of the job, but the employee contends a reasonable accommodation would have been possible.  In all those cases, the employee has been discharged—a clear adverse employment action.  But what happens if the employer and employee engage in the interactive process, run out of ideas for accommodations, and just don’t address the issue again?  The employee continues in the job, without discipline and without discharge.  Is there an actionable failure to accommodate claim?

In Exby-Stolley v. Bd. Of Cnty Comm’rs, No. 16-1412 (10^th Cir. Oct. 11, 2018), the circuit court analyzed the text of the ADA and ruled that substituting “failure to accommodate” into the anti-discrimination provision still leaves the requirement to show the failure was “in regard to” application procedures, hiring, advancement, discharge, compensation, training, or other terms and conditions of employment.

Of course, we can’t take this too far.  If the employee is unable to enjoy the benefits of employment or is materially and adversely affected in performing the job, those might supply the necessary adverse employment action.  The key here is that the employer does not run out of time to continue the interactive process so long as the employee has not suffered an adverse employment action.