The Tenth Circuit has published an important en banc decision holding that an adverse employment action is not a required element of a failure-to-accommodate claim under the ADA. The decision is Exby-Stolley v. Board of County Commissioners, Weld County, Colorado, case number 16-1412 in the U.S. Court of Appeals for the Tenth Circuit. 

In the decision, the court stated:

“In this en banc appeal, we address whether an adverse employment action is a requisite element of a failure-to-accommodate claim under Title I of the Americans with Disabilities Act (the “ADA”), 42 U.S.C. §§ 12111–12117. We conclude that the answer is “no,” reaching this determination through a comprehensive analysis, including consideration of the following: the ADA’s text; our failure-to-accommodate precedent; the failure-to-accommodate decisions of our sister circuits; the views of the Equal Employment Opportunity 2 Commission (the “EEOC”), the federal regulatory agency charged with administering the ADA; and the ADA’s general remedial purposes.”


“On en banc rehearing and following oral argument, we now hold that the district court erred: viz., an adverse employment action is not a requisite element of an ADA failure-to-accommodate claim. Accordingly, we reverse the district court’s judgment and remand for a new trial. Because we remand for a new trial and the original decision turned on trial-related issues, we vacate in full the decision (including the dissent). See, e.g., id. (“vacat[ing] the panel opinion insofar as it reversed the district court’s judgment”); The Tool Box v. Ogden City 3 Corp., 355 F.3d 1236, 1243 (10th Cir. 2004) (“[W]e VACATE the panel decision and AFFIRM the district court’s judgment.”).”

The majority opinion from the full appeals court ordered a new trial and reversed a 2-1 panel decision from 2018 that said the employee plaintiff needed to show she faced an adverse employment action in order to sue.