Supreme Court’s Job Bias Test Clouding ADA Circuit Court Divide

A recent appellate court ruling once again turns focus to a deep circuit divide over whether a disabled worker bringing a failure to accommodate claim must also show harm, an additional requirement that disability law scholars say is in question after the US Supreme Court’s new standard for assessing workplace discrimination claims.

The justices’ unanimous April 2024 Muldrow v. City of St. Louis decision reshaped the anti-bias landscape under Title VII of the 1964 Civil Rights Act, allowing workers to only show they’ve experienced “some harm” that left them “worse off” regarding their employment. Muldrow leaves the door open for lower courts to determine which employer actions, like terminations or denied promotions, can sustain a discrimination claim.

The US Court of Appeals for the Fifth Circuit’s May 16 partial revival of a disabled HR worker’s ADA lawsuit teed up another potential chance for high court review on a question dividing circuit courts: whether an ADA failure to accommodate claim itself is actionable or if a plaintiff also needs to allege an adverse employment action.

Alisha Strife, a US Army veteran, doesn’t need to prove that a Texas school district’s “unreasonable” delay in allowing her to bring her service dog to work to help mitigate acute PTSD symptoms and protect her from falling caused harm, the Fifth Circuit ruled. The delay supports a failure to accommodate claim, it said.

The ruling also provides an opportunity for the justices to clarify whether Muldrow’s lower level of harm is applicable in a failure to accommodate case, employment law scholars and attorneys said. This is a separate issue that has divided federal appellate courts since the justices rejected the notion that a plaintiff must show “significant” harm to establish discrimination.

“Muldrow becomes relevant in” failure to accommodate cases under the ADA where the terms, conditions, and privileges of employment were affected “because it dictates the level of harm that an individual would need to show, said Meaghan Kuelbs, a senior attorney at Clark Hill PLC. “Pursuant to Muldrow, there would be no requirement that the harm be significant or substantial.”

The ADA and Title VII both prohibit employers from refusing to hire, discharging, or discriminating against any individual regarding the terms, conditions, or privileges of employment based on the laws’ protected traits. In Muldrow, the justices concluded that discrimination refers to “differences in treatment that injure employees.”

Like Title VII, there’s no requirement in the ADA for a material or objectively tangible harm, said William Goren, an attorney and consultant specializing in the ADA.

“A failure to accommodate claim creates, as the Fifth Circuit set out in” Strife v. AISD, a situation that can cause someone to work under “suboptimal conditions,” he said. That “logic,” coupled with Muldrow, “to me, basically leads to the conclusion that a failure to accommodate is an adverse action by itself” because it’s both disadvantageous and discriminatory.

The Fifth Circuit’s reasoning that a failure to accommodate claim doesn’t require an extra element of harm aligns with the holdings of the Tenth, Seventh, Sixth, Fourth, Third, Second, First, and D.C. circuits. However, the Eleventh, Ninth, and Eighth circuits have said otherwise.

The Supreme Court declined in 2021 to take up a case seeking to resolve the circuit split.

Muldrow’s Scope

The Strife ruling comes as federal courts assess the bounds of the Supreme Court’s decision to lower the threshold for the type of harm needed to support discrimination claims. That holding is already reshaping litigation under various workplace anti-bias laws.

Even though the Fifth Circuit’s harm analysis is supported by Muldrow, attorneys said, it declined a request from the US Equal Employment Opportunity Commission and the worker to clarify whether the high court’s new bias test can be applied in the ADA context.

Strife, who served in Iraq, argued in court that Muldrow supports her position that the delay in accommodating her request altered the terms, conditions, or privileges of her employment.

“Muldrow concerns Title VII discrimination cases, not ADA violations,” the circuit panel concluded in a footnote, however.

Such a finding that Muldrow is inapplicable in disability discrimination claims conflicts with recent Eleventh and First circuit decisions.

While the Fifth Circuit’s conclusion was “relegated to a single sentence in a single footnote, it’s still a fairly sweeping statement,” as it teed up another circuit divide on Muldrow’s applicability under the ADA, said Cara J. Ottenweller, a shareholder at Vedder Price.

Employer Lessons

Until further development in the law and clarity from the justices, “employers still need to heed the Supreme Court’s warning in Muldrow that changes to an employee’s terms and conditions of employment based on a protected characteristic need not be significant for an employee to establish unlawful discrimination,” Ottenweller said.

The Strife case also offers immediate practical lessons for employers, including the need to work through the accommodation process with employees diligently, attorneys said.

The school district did approve the worker’s request after a six-month process. However, the Fifth Circuit found that Strife had valid failure to accommodate claims under federal and Texas laws because “a reasonable factfinder could find that the district’s insistence that she undergo an independent medical exam was unreasonable.”

The court’s conclusion that an unreasonable delay isn’t only actionable but also indicates a lack of good faith is significant because it opens the door for damages, according to Goren.

Requesting a medical exam isn’t inherently unreasonable. EEOC guidance suggests that an independent physical may be needed if an employee didn’t provide enough documentation from a medical professional to verify an ADA disability and the need for reasonable accommodation.

But that wasn’t the case here, because Strife provided information that confirmed her disabilities and need for an accommodation, the Fifth Circuit said.

Employers can consider other potential accommodations during the interactive process, but as the case suggests, they “must do so in a prompt, reasonable and good faith manner,” Ottenweller said.

The case is Strife v. AISD, 5th Cir., No. 24-20269, opinion issued 5/16/25.