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Motivation, adverse employment action, and reasonable accommodation under the ADA

The Americans with Disabilities Act (ADA) makes it illegal for employers to discriminate against persons based on real or perceived disabilities who are qualified to do the essential functions of the job, if the employers are or should be aware of the disability. See generally 42 U.S.C. ยง 12112(a). There are two paths to a valid cause of action. The employee must:

  • have (or be regarded to have) a disability, be a qualified individual, and have suffered an adverse employment action because of that disability; or
  • have been denied a reasonable accommodation that would make the employee qualified to do the job.

ADA infographic

Trialdex has an ADA litigation tool (Q&A) and infographic that walk you through the process of determining whether an employee has an ADA cause of action. A reader emailed me the other day alerting me to an error in the infographic.

Here's an explanation. Under the ADA, an employer who takes an adverse employment action against a disabled employee can defend by producing a nondiscriminatory reason for the adverse employment action. There are, however, cases indicating that a nondiscriminatory reason is not available as a defense where the employer has failed to provide a reasonable accommodation. See Peebles v. Potter, 354 F.3d 761, 767 (8th Cir. 2004) ("the known disability triggers the duty to reasonably accommodate and, if the employer fails to fulfill that duty, we do not care if he was motivated by the disability"); Hollis v. Chestnut Bend Homeowners Ass'n, 760 F.3d 531 (6th Cir. 2014) (FHA reasonable accommodation).

It has also been suggested, notably in Exby-Stolley v. Bd. of Cty. Commissioners, 979 F.3d 784 (10th Cir. 2020) (en banc), that a reasonable accommodation case does not require proof of an independent adverse employment action, which would logically rule out a motivation defense. A failure to offer a reasonable accommodation to an otherwise qualified disabled employee is unlawful discrimination. See also Morrissey v. Laurel Health Care Co., 946 F.3d 292, 299 (6th Cir. 2019) ("plaintiffs need not prove that they suffered an adverse employment action separate from the failure of the employer to reasonably accommodate the employee"); Need I Prove More: Why an Adverse Employment Action Prong Has No Place in a Failure to Accomodate Disability Claim (Hamline Law Review 2013),

I have consequently modified the ADA Q&A and infographic accordingly.

(08/15/21) (permalink)