The U.S. Supreme Court will not take up an appeal from Weld County, after the federal appellate court based in Colorado narrowly ruled against the jurisdiction last year in an employment discrimination case.
The High Court's decision on Monday puts Laurie Exby-Stolley on track to receive a new trial for her claim that Weld County violated the Americans with Disabilities Act by failing to accommodate her when she was a county health inspector. In a rare all-judges hearing of the U.S. Court of Appeals for the 10th Circuit, a 7-6 decision found that a trial court erred by instructing the jury that Weld County had to have taken an adverse action against Exby-Stolley, like firing her or demoting her, for her to have an ADA claim.
The appellate court's majority noted that the phrase "adverse employment action" does not appear in the landmark disability rights law.
"The entire concept of requiring an adverse employment action to succeed on any type of discrimination [claim] has never been endorsed by SCOTUS and many circuits are now deciding it is not a viable or correct doctrine," said Jason Wesoky, an attorney at Darling Milligan who represents Exby-Stolley.
In its petition to the Supreme Court, Weld County argued that circuit courts of appeals were closely split around the country over whether an employer merely failing to accommodate someone's disability gives rise to a claim, or if there must be something more.
The law requires employers to make reasonable accommodations for a disabled worker so that they may enjoy the same benefits as a non-disabled employee. Discrimination that affects an employee's "terms, conditions, and privileges of employment" is prohibited. That phrase is "shorthand," the county said, for an adverse employment action.
"Talking about issues related to how to help an individual with a disability succeed in their chosen career should be part of an ongoing conversation between the employer and employee that begins as soon as there is an apparent need for such a discussion to take place," said David Monroe, director of legal services for Disability Law Colorado. "To wait until the employer elects to take an adverse action, such as firing or demoting an employee, is not consistent with either the letter or the spirit of the ADA."
The 10th Circuit's majority sided with Exby-Stolley, deciding it would water down the protections of the ADA if county's interpretation prevailed.
"We likewise cannot accept the proposition that the ADA — which by its plain terms affirmatively imposes on employers a reasonable-accommodation obligation — should be construed in a manner that does not permit the statute to effectively ensure that all qualified disabled employees actually receive such an accommodation, but instead only such disabled employees that have also suffered an adverse employment action," wrote Judge Jerome A. Holmes in the court's October 28 opinion.
A county spokesperson did not immediately respond to a request for comment.
Wesoky said his client has attempted to resolve the case with Weld County, to no avail.
"Should Laurie prevail, the citizens would be right to hold their leaders accountable for sticking the citizens with hundreds of thousands of dollars, if not more than a million dollars, in fees and damages," he said.
Exby-Stolley was a county health inspector, but broke her right arm on the job in 2009. She took longer to perform inspections and required the use of assistive devices due to her injury. It was disputed how much the county accommodated her disability and whether it forced her out of the job, but a jury decided she had not proven she experienced an adverse employment action, as the judge had instructed them to consider.
The 10th Circuit ordered a new trial without the judge's instruction.
Jesse Fishman of HKM Employment Attorneys in Denver said she believed the 10th Circuit adequately clarified the failure-to-accommodate law with its recent decision.
"It was great that the 10th Circuit addressed this issue, as it is important to both employers and employees to have a clear understanding of employee rights — this helps employers understand how to sustain their businesses while not violating employee rights," Fishman said.
The case is Exby-Stolley v. Board of County Commissioners.
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