In Tudor v. Whitehall Central School District, 2025 WL 898898 (2d Cir. March 25, 2025), the U.S. Court of Appeals for the Second Circuit – addressing a matter of first impression – vacated a lower court award of summary judgment dismissing plaintiff’s “failure to accommodate” claim under the Americans with Disabilities Act (ADA), finding that the fact that the plaintiff, a teacher, could perform the essential functions of her job without accommodation did not, by itself, bar her claim.
From the decision:
The ADA provides that “[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to … [the] terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a); see also id. § 12111(8) (defining “qualified individual” in relevant part as “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires” (emphasis added)). “To establish a prima facie case [for failure to accommodate] under the ADA, a plaintiff must show by a preponderance of the evidence that: (1) his employer is subject to the ADA; (2) he was disabled within the meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) … his employer refused to make a reasonable accommodation.” Woolf v. Strada, 949 F.3d 89, 93 (2d Cir. 2020) (per curiam) (emphasis added). In other cases, we have articulated the third element as “with reasonable accommodation, plaintiff could perform the essential functions of the job at issue.” Natofsky v. City of New York, 921 F.3d 337, 352 (2d Cir. 2019) (quoting McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 97 (2d Cir. 2009)). The district court, relying on this wording, inferred that an employee who can perform the essential functions of the job without an accommodation cannot, as a matter of law, sustain a claim for failure to accommodate. This inference, however, cannot be squared with the ADA’s plain text.
“When interpreting a statutory provision, we start with the text.” Salazar v. Nat’l Basketball Ass’n, 118 F.4th 533, 546 (2d Cir. 2024). Prohibited discrimination under the ADA includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an … employee,” unless “the accommodation would impose an undue hardship” on the employer. 42 U.S.C. § 12112(b)(5)(A). The ADA in turn defines a “qualified individual” as “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” Id. § 12111(8) (emphasis added); see also Borkowski v. Valley Cent. School Dist., 63 F.3d 131, 135 (2d Cir. 1995) (holding, in the context of the analog Rehabilitation Act, that “an individual is otherwise qualified for a job if she is able to perform the essential functions of that job, either with or without a reasonable accommodation” (emphasis added)). And a “reasonable accommodation” is defined to include, inter alia, “job restructuring [or] part-time or modified work schedules.” 42 U.S.C. § 12111(9).
Putting these provisions together, an employer must, absent undue hardship, offer a reasonable accommodation–such as a modified work schedule-to an employee with a disability if that employee is capable of performing the essential functions of her job with or without the accommodation. Under a straightforward reading of the phrase “with or without,” the fact that an employee can perform her job responsibilities without a reasonable accommodation does not mean that she must: she may be a “qualified individual” entitled to reasonable accommodation even if she can perform the essential functions of her job without one.
In concluding that “with or without” means with or without, we break no new ground. Several of our sister circuits have considered whether the ability to perform the essential functions of a job without an accommodation is fatal to an employee’s ADA or Rehabilitation Act failure-to-accommodate claim, and all have reached the same conclusion.2 We join this consensus: an employee with a disability is qualified to receive a reasonable accommodation under the ADA even if she can perform the essential job functions without one. The text of the ADA is unambiguous and affords no other reasonable interpretation.
This textual reading, which is enough to resolve this appeal, is consistent with our case law: “As a remedial statute, the ADA must be broadly construed to effectuate its purpose of providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” Noel v. N.Y.C. Taxi & Limousine Comm’n, 687 F.3d 63, 68 (2d Cir. 2012) (internal quotation marks and citation omitted). To say that an accommodation must be strictly necessary to be reasonable would run counter to this purpose; if Congress had wanted employers to make only necessary accommodations, rather than reasonable ones, it could have said so. But Congress did not require “necessary accommodations”; the ADA plainly directs employers to make “reasonable accommodations.” 42 U.S.C. § 12112(b)(5)(A). Generally speaking, “[p]er se rules are unreliable in the disability context.” Noll v. IBM Corp., 787 F.3d 89, 96 (2d Cir. 2015). Such is the case here, where the “reasonableness of an employer’s accommodation is a ‘fact-specific’ question.” Id. at 94 (quoting Wernick v. Fed. Rsrv. Bank of N.Y., 91 F.3d 379, 385 (2d Cir. 1996)). See also Hopman v. Union Pac. R.R., 68 F.4th 394, 401-02 (8th Cir. 2023) (failure-to-accommodate claims require a “fact- and context-specific” inquiry); EEOC v. Charter Commc’ns, LLC, 75 F.4th 729, 739-40 (7th Cir. 2023) (“[D]eciding whether a work-schedule accommodation of a disability … is reasonable depends on a highly fact-specific inquiry that considers the needs of both employer and employee.”).
We may share in the blame for the district court’s error here. In the past, we have articulated the third prong of a failure-to-accommodate claim variously: “he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation”; and “with reasonable accommodation, plaintiff could perform the essential functions of the job at issue.” Compare Woolf, 949 F.3d at 93, with Natofsky, 921 F.3d at 352. These formulations are compatible: a plaintiff who can perform the essential functions of the job without an accommodation can certainly perform those essential functions with one. As the Government explains, “requiring a plaintiff to show that they are able to perform the essential functions of the job with a reasonable accommodation does not compel the inverse, i.e., requiring a plaintiff to show that they are unable to perform the essential functions of the job without a reasonable accommodation.” Brief of the United States as Amicus Curiae 15 (emphasis in original). An employee may qualify for an accommodation even if it is not strictly necessary to her performance of the essential functions of the job.
We do not consider the extent to which the necessity of an accommodation to the performance of essential job functions is relevant to any particular failure-to-accommodate claim; we hold only that the necessity of the accommodation is not dispositive. The ADA “does not require the perfect elimination of all disadvantage that may flow from the disability.” Fink v. N.Y.C. Dep’t of Pers., 53 F.3d 565, 567 (2d Cir. 1995). But employees who can work without accommodation are included within the category of individuals “qualified” for reasonable accommodations, 42 U.S.C. § 12111(8). In at least some circumstances, the ADA requires an employer to offer accommodations that mitigate (if not necessarily eliminate) an employee’s disability-related pain.
The court concluded by noting that defendant is not foreclosed from raising other defenses on remand, and that it might demonstrate that the requested accommodation would impose on it an undue hardship – but also that plaintiff’s “long history of receiving her requested accommodation and Whitehall’s evolving policies indicate that [plaintiff]’s requested accommodation may have been reasonable, notwithstanding that she performed her essential job functions without it.”