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95 N.Y.U. L. Rev. Online 1 (2020)

handle is hein.journals/nyulro95 and id is 1 raw text is: ADVERSE EMPLOYMENT ACTIONS IN FAILURE-TO-ACCOMMODATE CLAIMS: MUCH ADO ABOUT NOTHING NICOLE BUONOCORE PORTER* This Article addresses a circuit split in the disability law jurisprudence. Under the Americans with Disabilities Act (ADA), employees generally bring two types of claims against their employers discrimination claims and failure-to-accommodate claims. Succeeding on a discrimination claim requires proving that the employee suffered an adverse employment action. Succeeding on a failure-to-accommodate claim does not. But several courts including a recent case in the Tenth Circuit have added this adverse- employment-action requirement into failure-to-accommodate claims. In doing so, these courts have camouflaged important issues about an employer's obligation to provide a reasonable accommodation to disabled employees. Although I believe that courts that require an adverse employment action in failure-to-accommodates claim do so in error, the main contribution of this Article is to reveal how courts have obscured and confused broader disability-accommodation issues by imposing that requirement. INTRODUCTION ......................................................................................2 I. THE TENTH CIRCUIT'S DECISION IN EXBY-STOLLEY...............4 II. THE CIRCUIT SPLIT .....................................................................7 A. Cases Requiring an Adverse Employment Action...............8 B. Cases Not Requiring an Adverse Employment Action ......12 III. EXPLAINING THE CONFUSION...................................................14 A. Whether a Requested Accommodation Is Reasonable and Required ............................................................................15 1. Accommodations That Are Not Necessary to Perform the Essential Functions of the Job...............................15 2. No Obligation to Provide the Plaintiff's Preferred Accommodation ...........................................................17 B. Whether the Employer Violated the Accommodation Obligation .........................................................................21 1. Delay in Providing Reasonable Accommodation........21 2. Dispute over Whether the Employer Provided a Reasonable Accommodation .......................................22 C. Causation and Intent in Failure-to-Accommodate Claims ...............................................................................23 CONCLUSION .......................................................................................26 * Copyright © 2020 by Nicole Buonocore Porter, Professor of Law, University of Toledo College of Law.

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