11th Circuit Creates Circuit Split Holding That An "Adverse Act" Is Needed To Bring An Ada Claim For Failure To Accommodate

• Published date: 06 July 2023
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Discrimination, Disability & Sexual Harassment, Employee Benefits & Compensation, Employee Rights/ Labour Relations, Trials & Appeals & Compensation
• Law Firm: K&L Gates
• Author: Ms April Boyer, Timothy J. Nichols and Marice Guzman

OVERVIEW

On 24 May 2023, in Beasley v. O'Reilly Auto Parts,¹ the United States Court of Appeals for the Eleventh Circuit created a split in the circuit courts by holding that an employee must establish the occurrence of an adverse employment action in order to bring a lawsuit for failure to accommodate under the Americans with Disabilities Act, as amended (the ADA).² Plaintiff Teddy Beasley, a deaf man capable of understanding only 30% of oral communication via lip reading, sued his employer O'Reilly Auto Parts (O'Reilly) alleging that O'Reilly failed to provide him with reasonable accommodations he requested for his disability. As part of its ruling, the Eleventh Circuit conclusively declared that "discrimination in the form of a failure to reasonably accommodate is actionable only if that failure negatively impacts the employee's hiring, advancement, discharge, compensation, training, and other terms, conditions, and privileges of his employment," i.e., a failure to reasonably accommodate does not in and of itself constitute an "adverse act." The Eleventh Circuit decision creates a split among the circuits that do not require a showing of an adverse employment action separate from the failure to reasonably accommodate itself.

FACTUAL BACKGROUND

Beasley was hired by O'Reilly to work at a distribution center in Alabama. He utilized the services of an American Sign Language (ASL) interpreter during his initial interview, and notified O'Reilly that he needed an accommodation to perform the essential functions of the position at the time of his hire. O'Reilly acknowledged that Beasley would need accommodations, including having an ASL interpreter during his initial training, requesting an ASL interpreter as needed in the future, and keeping his cell phone with him while working to facilitate work-related communication through text.

Beasley's claim that O'Reilly violated the ADA by failing to provide him with reasonable accommodations stems from four distinct instances. First, Beasley requested either that his supervisor provide him with text message summaries of mandatory pre-shift meetings during which tasks for the day, any concerns, and safety information were discussed, or that O'Reilly provideBeasley with an ASL interpreter for these meetings. Beasley's supervisor repeatedly failed to provide sufficient summaries, and O'Reilly did not provide an ASL interpreter. Second, Beasley requested an ASL interpreter during forklift training with his supervisor...