A frequent claim that arises under the Americans with Disabilities Act (ADA) is failure by an employer to provide an individual with a disability a reasonable accommodation. Typically, to support a failure-to-accommodate claim, a plaintiff will assert that he or she has an ADA-covered disability, requested an accommodation to help perform their job, and the request was denied.

An additional issue that can arise, and one on which the federal courts and the Equal Employment Opportunity Commission (EEOC) generally are in disagreement, is whether to support a failure-to-accommodate claim an employee must also show he or she suffered an “adverse employment action” – such as a termination or demotion.

We recently ran across a New Jersey state law case – Richter v. Oakland Board of Education, __ A.3d __, No. A-0102-17T2 (N.J. Super. Ct. App. Div. 2019) – where the court ostensibly looked to federal ADA case law for interpretive guidance in concluding that the plaintiff did not have to show an adverse employment action to support her failure-to-accommodate claim. The case appears to be an outlier, however, because if anything the federal courts seem to be trending towards a consensus that proving an adverse employment action in a failure-to-accommodate claim is a required element.

We should note that from a practical perspective, the two issues are already tied together in many instances. For example, if an employee cannot be accommodated in his or her current job, there may be no alternative, resulting in termination. But there are also some cases where an employee requests an accommodation without alleging an adverse action, and that’s where the controversy lies.

Members of the Center for Workplace Compliance (CWC) can read more here.