The Americans with Disabilities Act (ADA) requires covered employers provide a reasonable accommodation to an otherwise qualified individual with a disability. If the employer fails to do so, that employer can be liable for damages.

There developed a split in the courts as to whether the employee must prove an “adverse employment action” to recover damages. In other words, not all the courts agreed whether the employee had to prove the employer’s failure to accommodate resulted in the employee losing a job, a promotion, etc.

In 2020, the Tenth Circuit Court of Appeals, which governs Oklahoma, issued an opinion holding that no adverse employment action was required. Why are we covering this now you ask? Because earlier this week, on June 28, the United State Supreme Court declined to take that case on appeal. Although we cannot say for certain the Supreme Court agrees with the Tenth Circuit’s position, we are certain that the opinion will be the law for employers in our Circuit (Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah).

What does this mean for these employers? A continued (renewed) emphasis should be placed on the interactive process when faced with ADA issues. It is through this interactive process that employers determine whether a reasonable accommodation may be provided or whether an undue hardship exists. In making this determination, consider whether you should consult legal counsel. The terms “reasonable accommodation” and “undue hardship” are defined legal terms.

The art is applying those legal terms to the specific facts of each situation you encounter.

By Kristen L. Brightmire, kbrightmire@dsda.com