The “Failure to Accommodate Disability” Cause of Action

One type of disability discrimination claim recognized by the anti-discrimination laws is a so-called “failure to accommodate” claim.

This article is meant to give an overview of general principles applicable; it is not intended to cover all aspects of the law on this topic.

In order to establish a failure to accommodate claim under the Americans with Disabilities Act, plaintiff must demonstrate the following elements:

  1. plaintiff is a person with a disability under the meaning of the ADA;
  2. an employer covered by the statute had notice of her disability;
  3. with reasonable accommodation, plaintiff could have performed the essential functions of the job at issue; and
  4. the employer refused to make such accommodations.

A plaintiff need not show an adverse employment action to state a claim for failure to accommodate. Durick v. New York City Dep’t of Educ., No. 15 CIV. 7441 (BMC), 2016 WL 4385908 (E.D.N.Y. Aug. 17, 2016).

Courts have elaborated on various aspects of reasonable accommodation. From a recent decision:

A reasonable accommodation is one that enable[s] an individual with a disability who is qualified to perform the essential functions of that position … [or] to enjoy equal benefits and privileges of employment. 29 C.F.R. § 1630.2(o)(1)(ii)-(iii). A reasonable accommodation may include, among other things, a modification of job duties and schedules, alteration of the facilities in which a job is performed, acquisition of devices to assist the performance of job duties, and, under certain circumstances, reassignment to a vacant position. Plaintiff bears the burdens of both production and persuasion as to the existence of some accommodation that would allow her to perform the essential functions of her employment, and bears only the light burden of production regarding the reasonableness of the proposed accommodation. A plaintiff’s burden of production is satisfied if the costs of the accommodation do not on their face obviously exceed the benefits. The defendant then bears the burden of persuasion that the accommodation would present undue hardships and would therefore be unreasonable. An “undue hardship” is an action requiring significant difficulty or expense. However, when an employer has offered or made some accommodation for an employee’s disability, summary judgment is appropriate if, on the undisputed record, the accommodation was plainly reasonable.

Durick, 2016 WL 4385908, at *7.

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