Abstract: Individuals with disabilities are continuously marginalized by a world tailored to the able-bodied. One of the most visible areas where this marginalization manifests is employment. The Americans with Disabilities Act of 1990 (ADA) attempts to combat this with its extensive legislation to resolve and mitigate disability discrimination in employment contexts. In this attempt, the ADA mandates that employers provide disabled employees with reasonable accommodations—employment modifications necessary for many disabled employees to perform their jobs and feel included in the workplace. Jurisprudence reflects a series of decisions where courts read the ADA narrowly, strictly, and from an able-bodied perspective, resulting in significant barriers to litigation for many potential disabled litigants seeking to bring failure-to-accommodate claims, or even ADA claims generally.
This Comment focuses on the circuit split on whether a prima facie failure-to-accommodate claim includes an additional, implied, adverse employment action element. In jurisdictions that require proof of this element, a disabled plaintiff cannot prevail on a failure-to-accommodate claim, even if they meet every element enumerated in the plain text of the ADA. Instead, they must show they were fired, demoted, denied a promotion, or otherwise subjected to some negative change in the terms of their employment. In these jurisdictions, the ADA no longer imposes an affirmative obligation on employers to provide reasonable accommodations—they are free to deny accommodations all they wish. This Comment argues that the current circuit split should be resolved by finding that there is no adverse employment action requirement within an ADA failure-to-accommodate claim. It further argues that a statutory amendment is warranted regardless of whether the United States Supreme Court resolves the split. This Comment stresses that amendment is crucial to eliminate confusion among circuit courts and to ease the immense burdens plaintiffs with disabilities bear in bringing failure-to-accommodate claims.
