The U.S. Court of Appeals for the Eleventh Circuit, in Beasley v. O’Reilly Auto Parts, recently held that a claim for failure-to-accommodate under the Americans with Disability Act (ADA) must include an adverse employment action.¹ That is, “discrimination in the form of a failure to reasonably accommodate is actionable under the ADA only if that failure negatively impacts the employee’s hiring, advancement, discharge, compensation, training, and other terms, conditions, and privileges of his employment.”²  

By increasing the burden plaintiffs must overcome in failure-to-accommodate cases, Beasley represents good news for employers in the Eleventh Circuit, which covers Florida, Georgia, and Alabama.  The long-term impact of Beasley, however, is unclear.  Currently, federal appellate courts are split on whether an adverse employment action is necessary for a failure-to-accommodate claim to stand,³ and if the United States Supreme Court chooses to address this split, the Eleventh Circuit’s heightened standard could prove short-lived.  

The Lawsuit and Eleventh Circuit’s Decision

In Beasley, the plaintiff worked for O’Reilly Auto Parts as a warehouse worker.  He is deaf and can understand only approximately 30% of verbal communication.  As a result, he relies on American Sign Language (ASL) for communication.  Upon hiring, O’Reilly agreed to provide the plaintiff an ASL interpreter when needed.  

In August 2017, the plaintiff was disciplined for poor attendance, and when he requested an interpreter for his disciplinary meeting, O’Reilly failed to provide one.  The plaintiff then received a documented verbal warning, and his subsequent performance review reflected a lower attendance score than he had previously received.  Because O’Reilly relied on performance reviews in issuing merit-based pay increases, the plaintiff’s lower score meant he did not qualify for as high of a raise as he would have otherwise received.  

In January 2018, the plaintiff resigned from his position as warehouse worker and filed suit in the Southern District of Alabama, claiming O’Reilly had discriminated against him under Title I of the ADA by failing to reasonably accommodate him.   

The trial court granted summary final judgment in favor of O’Reilly, reasoning that the plaintiff failed to show he had suffered an adverse employment action.  Specifically, the court noted, in relevant part, an interpreter would not have improved the plaintiff’s attendance score or resulted in better performance reviews overall.  On appeal, the Eleventh Circuit reversed summary judgment for O’Reilly, concluding there was a material issue of fact as to whether the denied accommodation led to a lower pay increase—a form of adverse employment action.  However, the Eleventh Circuit affirmed the requirement that plaintiffs in failure-to-accommodate claims prove an adverse employment action.

Circuit Split

The Eleventh Circuit’s ruling in Beasley is part of a growing split among federal courts.  In 2020, the Tenth Circuit ruled an adverse employment action is not a requirement for a failure-to-accommodate claim,⁴ whereas, in contrast, two years earlier, the Eighth Circuit indicated a failure-to-accommodate claim requires an adverse employment action.⁵  A federal judge in the Western District Court of Louisiana, which is part of the Fifth Circuit,⁶ recently denied an employer’s motion to dismiss, finding that no adverse employment action is required for a failure-to-accommodate claim to stand.⁷  

Although the U.S. Supreme Court previously declined to review whether an adverse employment action is required for a failure-to-accommodate claim to survive, the Court may be more inclined to address this issue as the division among circuits grows.

What Should Employers Expect After Beasley?

Following Beasley, employers should continue to consult with their employment counsel to understand the risks of denying an accommodation request.  Until the Supreme Court clarifies the applicable standard for failure-to-accommodate claims, risk exposure will vary from jurisdiction to jurisdiction. 

While Beasley grants employers in Florida, Georgia, and Alabama greater protection from liability by requiring plaintiffs prove both (1) failure to accommodate; and (2) adverse employment action, what constitutes an adverse employment action can be nuanced and it may not be prudent to rely solely on the absence of an adverse employment action as a defense. 

Finally, employers must continue to evaluate each situation individually, avoiding a one-size-fits-all approach to accommodation requests.  Training Human Resources specialists on recommended practices can be instrumental for helping decrease risk. 

*Esteban Cardona is a Summer Associate in Littler’s Miami and Orlando offices.