11th Cir. Takes Up Adverse Act’s Role in ADA Accommodations

A federal appeals court in Atlanta will hear oral argument over whether disabled workers suing employers for failing to accommodate their disabilities must also show they were fired, demoted, or suffered another adverse employment action.

Teddy Beasley is attempting to revive his failure-to-accommodate lawsuit against O’Reilly Auto Parts, which a magistrate judge threw out because he didn’t establish that he suffered an adverse employment action. Beasley is deaf and communicates primarily through American Sign Language.

The US Equal Employment Opportunity Commission will appear alongside Beasley’s lawyer during oral argument Thursday to urge the US Court of Appeals for the Eleventh Circuit to overturn the judge’s ruling.

The Eleventh Circuit’s decision could clarify whether employers in Florida, Georgia, and Alabama can deny disability accommodation requests with impunity, provided they don’t take a separate adverse employment action against those disabled workers.

Federal appeals courts have been inconsistent on the issue. The full Tenth Circuit ruled 7-6 last year that a separate adverse action isn’t necessary, saying in its 2020 decision that six other circuits “either state, or strongly suggest” that there’s no such requirement, while no circuit “has regularly incorporated” it.

But the dissent in that narrowly decided case portrayed a “decidedly muddier picture,” pointing out that the legal landscape is rife with intra-circuit splits. Some of the courts that the majority characterized as rejecting the need for a separate adverse employment action required it in earlier decisions that weren’t expressly overruled, according to the dissent.

The US Supreme Court declined to review the Tenth Circuit’s en banc decision last year.

An Eleventh Circuit panel of Judges Ed Carnes, a George H.W. Bush appointee, and Robert Luck and Andrew Brasher, both Trump appointees, will hear Beasley’s case, according to the circuit clerk’s office.

Interpreter Not Provided

The case stems from Beasley’s allegations that O’Reilly Auto Parts failed to provide a sign language interpreter for daily staff meetings, training sessions, the company picnic, and disciplinary and performance meetings.

Beasley quit his job as a materials handler at an O’Reilly distribution center in Alabama in 2018. But he didn’t bring a constructive discharge claim asserting that he was effectively forced to resign because he didn’t get an interpreter for important meetings, instead suing in 2020 solely for disability discrimination based on not getting an accommodation.

US Magistrate Judge Katherine Nelson in the Southern District of Alabama required Beasley to show he suffered an adverse employment action, which she said was required under the Eleventh Circuit’s 2007 decision in Holly v. Clairson Industries LLC.

Nelson portrayed her 2021 decision as somewhat novel, noting that Eleventh Circuit rulings before and after Holly “have omitted specific mention of an adverse employment action as an element of an ADA failure-to-accommodate claim.” She relied on a footnote in Holly to support her holding, even as she acknowledged no other court had considered that footnote.

“However, Holly is in the books as a published panel decision, and simply because precedent has been overlooked in the past does not give a court license to disregard it once it has been squarely presented,” Nelson said in her ruling.

Fateful Footnote

Nelson’s ruling on the adverse employment action element of a failure-to-accommodate claim hinges on the unusual question of whether the footnote really constitutes controlling precedent, Beasley’s attorney, Andrew Rozynski of Eisenberg & Baum LLP, told Bloomberg Law.

According to Beasley’s brief to the Eleventh Circuit, the footnote was non-binding commentary that focused on the causation standard for an unlawful denial of an accommodation. An adverse employment action was established in that case, so the reference to such action in the footnote shouldn’t be ripped from its context and interpreted as a stand-alone principle, the brief said.

Denying a reasonable accommodation inherently affects job terms because it deprives a disabled worker of equal opportunities related to aspects of employment like hiring, job performance, and benefits of the position, the EEOC said in its amicus brief.

The Eleventh Circuit has consistently said that failure to accommodate itself is unlawful discrimination under the ADA, the agency said.

“A contrary ruling would allow employers to escape their affirmative duty to provide a reasonable accommodation simply by refraining from taking a separate adverse employment action, leaving employees with ‘no legal recourse’ to compel provision of the required accommodation,” the EEOC said.

Affecting the Job

O’Reilly Auto Parts argued in its brief that the Eleventh Circuit has generally required an adverse employment action in cases before and after the Holly ruling.

But the company also pointed to the circuit’s 2021 decision in Kirkland v. City of Tallahassee to clarify that denying a reasonable accommodation—meaning one necessary to perform the essential functions of the job—could qualify as the necessary adverse action. Beasley missed that mark, it said.

“The district court correctly concluded based on the evidence that Beasley had failed to show any adverse employment action materially affecting the ‘terms, conditions, or privileges of his job’ arising to the claimed failure to accommodate,” O’Reilly said.

Beasley didn’t show that being denied an interpreter at the meetings, training, and a company picnic hurt his job performance, the company said.

O’Reilly’s attorney, Michael Strasavich of Burr Forman LLP, didn’t respond to requests for comment.

The case is Beasley v. O’Reilly Auto Parts, 11th Cir., No. 21-13083, Oral argument 9/15/22.