THE OKLAHOMA BAR JOURNAL 50 | AUGUST 2025 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. taking such action but not on the basis of disability. In contrast, an employer runs afoul of the ADA’s accommodation mandate by failing to take an action – that is, by “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.”5 Different Definitions of ‘Disability’ Apply An individual has a “disability” under the ADA if they have one or more of the following: 1) an “actual disability,” defined as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual”; 2) a record of such an impairment; and/or 3) the employer regards the employee as having such an impairment.6 To make a claim under the ADA’s disparate treatment prohibition, the plaintiff may rely on any or all of these three definitions of “disability.”7 In other words, the ADA’s disparate treatment mandate prohibits an employer from “discriminat[ing] against a qualified individual on the basis of disability” notwithstanding whether the employee has a “disability” because they have an actual “physical or mental impairment that substantially limits one or more major life activities,” because they have a “record of such an impairment” and/or because the employer “regards” them “as having such an impairment” (even if they do not actually have such an impairment).8 In contrast, a claim for failure to accommodate cannot be based on the “regarded as” definition set out in 29 C.F.R. §1630.2(g)(1)(iii).9 Instead, the employer must show they have an actual disability,10 a record of a disability11 or both.12 A Failure-to-Accommodate Claim Does Not Require Proof of Discriminatory Intent Because the ADA’s disparate treatment prohibition only prohibits discrimination “on the basis of disability,” there must be a nexus between the disability and the employment action.13 This nexus is satisfied by proving the employer acted with discriminatory intent.14 In contrast, the ADA’s accommodation mandate imposes on the employer an “affirmative obligation to make reasonable accommodation.”15 It is the employer’s failure to offer a reasonable accommodation to an otherwise qualified individual with a disability that constitutes unlawful discrimination.16 Because it is the employer’s failure to meet its statutory obligation to “make reasonable accommodation” that results in a violation, there is no need to show the employer acted with discriminatory intent.17 “Thus, the employee need present no evidence, whether direct or circumstantial, of discriminatory intent in order to succeed on a failure-to-accommodate claim.”18 Element of an Adverse Action Unlike a claim of disparate treatment under the ADA’s disparate treatment prohibition, claims for failure to accommodate do not include the requirement that the employee suffered an adverse action.19 In Exby-Stolley, the 10th Circuit explained that including an adverse action as a necessary element to a failure-to-accommodate claim would significantly frustrate the purposes of the ADA because: Employers would not be held accountable for failing to reasonably accommodate their disabled employees so long as those employers did not also subject their employees to an adverse employment action. How could the ADA’s reasonable-accommodation mandate meaningfully help to ensure that qualified individuals with disabilities who have been denied a reasonable accommodation can “obtain the same workplace opportunities that those without disabilities automatically enjoy,” US Airways, Unlike a claim of disparate treatment under the ADA’s disparate treatment prohibition, claims for failure to accommodate do not include the requirement that the employee suffered an adverse action.19
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