Seyfarth Synopsis: The Tenth Circuit further clarifies The Rehabilitation Act while making it even harder to get rid of failure to accommodate claims at the summary judgment stage; FEHA and ADA implications may follow.
On June 16th, the United States Court of Appeals for the Tenth Circuit brought down a case that further defined The Rehabilitation Act of 1973, and made it even harder to get rid of failure to accommodate claims at the summary judgement stage.
The Rehabilitation Act, In Sum
On its face, The Rehabilitation Act prohibits discrimination on the basis of disability in programs run by federal agencies, those receiving federal financial assistance, and those in federal employment (or in the employment of federal contractors). The Act requires federal employers to "meet the needs of disabled workers and . . . broaden their employment opportunities." Woodman v. Runyon, 132 F.3d 1330, 1337–38 (10th Cir. 1997).
In other words, the Act is the federal-employer counterpart to the Americans with Disabilities Act (ADA) and state equivalents such as the California Fair Employment and Housing Act (FEHA). In fact, both the ADA and the FEHA were modeled in part after the Rehabilitation Act. (See The Rutter Guide). "As a result, courts interpreting the FEHA have looked to decisions under both the ADA and the Rehabilitation Act absent controlling state law." (Id.) It's safe to say any one of these acts has the potential to influence understandings of the remaining two.
Like the ADA, the Rehabilitation Act imposes an affirmative duty upon the employer to provide an "otherwise qualified individual with a disability" with a "reasonable accommodation" to enable the individual to perform the essential functions of the job. Specifically, a duty to accommodate exists if the employee shows (1) a disability, (2) the qualifications for the job and the ability to perform the essential functions of the job with a reasonable accommodation, and (3) a request for a plausibly reasonable accommodation. See, e.g. Hwang v. Kan. State Univ., 753 F.3d 1159, 1161 (10th Cir. 2014). After meeting this threshold, an employer can avoid liability "only if it can prove the accommodation in question imposes an undue hardship on its business." Id.
Wise v. Dejoy and What it Means For Future Accommodation Claims
After her termination, former postal worker, Sharhea Wise, brought suit against the U.S. Postal Service for retaliation and failing to accommodate her during her pregnancy. Wise v. DeJoy, No. 22-1224 (10th Cir. Jun. 16, 2023).
When Wise got pregnant, she asked her employer to let her avoid handling heavy items. The Postal Service agreed to provide help when items were too heavy, but told Wise that she needed to communicate when she required help. On two occasions, Wise allegedly had to handle items that were too heavy. Both times, she blamed her employer for failing to accommodate her, despite never asking for help on those occasions. After Wise walked off the job a few days later, she was fired.
The district court granted summary judgment to the Postal Service, but Wise challenged the rulings. On appeal, the Tenth Circuit agreed with the grant of summary judgment on the retaliation claim because the Postal Service presented a neutral, nonretaliatory reason for her termination (her walking off the job). Wise also lacked sufficient evidence of pretext.
However, the Court agreed with Wise' challenge on the failure-to-accommodate claim. The Court noted that Wise said her doctor ordered her not to handle items more than 20 pounds. She gave one example in which her supervisor told her to leave packages behind that were too heavy. However, she also explained that her supervisor later told her to go back for the heavier packages. In another instance, Wise said she was not given help pushing a gurney she thought was too heavy. Then, another supervisor apparently scolded her for using the gurney incorrectly.
In a somewhat stretched piece of decompositional reasoning, the Court said Wise's response to the question of whether she told the supervisor why she needed help with the gurney, which was "Yes — or no, actually," should be interpreted in favor of Wise. In the Court's view, a fact finder could reasonably decide she brought up her accommodation during the interaction. The Court opined that "On this claim, a reasonable factfinder could find that the Postal Service had failed to accommodate Ms. Wise's need to avoid handling heavy items."
In dissent, U.S. Circuit Judge Timothy M. Tymkovich disagreed with the accommodation decision. He explained that the Postal Service did what it could to accommodate Wise, and Wise's accommodation required her to ask for help when she believed items were too heavy. Instead, she did not adequately communicate her need for accommodation when necessary.
So, What Next?
In all, this case signifies more protections for disabled employees, despite imposing a rather large ask on employers. The opinion shows it is possible for an employee to succeed in a failure to accommodate claim (or at least make it past an MSJ) even when an accommodation was provided, and the employee in question did not speak up to exercise her accommodation. As for possible FEHA and ADA implications, it's a mixed bag. While The Rehabilitation Act decisions have historically influenced the FEHA and ADA interpretations absent controlling state law, the fact that both the FEHA and ADA are broader in scope than The Rehabilitation Act and already provide more protections may temper the impact. Still, employers should be especially careful in crafting their accommodations, making expectations clear, and do their best to ensure such accommodations are performed consistently.
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