AUGUST 2025 | 51 THE OKLAHOMA BAR JOURNAL 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. 535 U.S. at 397, and “enjoy the same level of benefits and privileges of employment” as their peers without disabilities, 29 C.F.R. pt. 1630, app. § 1630.9, if the statute is construed as providing such disabled individuals a failure-to-accommodate remedy only when their employers also have subjected them to an adverse employment action? To ask the question is to answer it: the ADA could not meaningfully effectuate its full-participation and equal-opportunity purposes, if so interpreted. And we thus decline to construe the statute in this way.20 Different McDonnell Douglas Formulations Courts traditionally have analyzed disparate treatment claims under the three-step formulation first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the three-part McDonnell Douglas formulation test, the plaintiff bears the initial burden to establish a prima facie case of disparate treatment, which, if shown, gives rise to the presumption that the challenged adverse action was the result of unlawful discrimination.21 The burden then shifts to the employer to rebut the plaintiff’s prima facie case by articulating a legitimate, nondiscriminatory reason for the adverse employment action.22 Once the first two steps are satisfied, the burden shifts back to the employee to proffer sufficient evidence allowing a jury to find that the employer’s articulated explanation is pretextual.23 This burden-shifting framework “is intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination.”24 In contrast, because discriminatory intent is not an element of a failure-to-accommodate claim, the traditional McDonnell Douglas formulation is inapplicable. Instead, courts typically evaluate a failure- to-accommodate claim under a modified McDonnell Douglas burden- shifting framework.25 The purpose of a burden shifting approach is a bit different in an ADA Failure to Accommodate case. In such a case, the Congress has already determined that a failure to offer a reasonable accommodation to an otherwise qualified disabled employee is unlawful discrimination.26 Thus, we use the burden-shifting mechanism, not to probe the subjective intent of the employer, but rather simply to provide a useful structure by which the district court, when considering a motion for summary judgment, can determine whether the various parties have advanced sufficient evidence to meet their respective traditional burdens to prove or disprove the reasonableness of the accommodations offered or not offered.27 Under this modified framework, the plaintiff bears the initial burden to demonstrate a prima facie case consisting of evidence that they 1) are disabled, 2) are otherwise qualified and 3) requested a plausibly reasonable accommodation.28 If the plaintiff makes a showing on all three elements, the burden shifts to the employer to either 1) conclusively rebut one or more elements of the plaintiff’s prima facie case or 2) establish an affirmative defense such as undue hardship or another affirmative defense available to the employer.29 Required Participation in the ‘Interactive Process’ The ADA’s disparate treatment prohibition can be boiled down to the following formula: adverse action + protected characteristic (disability) + unlawful intent (on the basis of disability).30 Since disparate-treatment claims concern discrimination in the form of an action, it naturally follows that a plaintiff alleging such a claim of discrimination must establish, inter alia, that there was both an employment action and that the action was undertaken with an intent that made it discriminatory, or phrased differently, that the action was taken “because of the disability.”31 Under the disparate treatment prohibition, an employer is not required to take any particular action or follow a particular process to avoid engaging in “discrimination on the basis of disability.” While an employer’s failure to take certain steps, such as following progressive discipline, may constitute circumstantial evidence of the employer’s discriminatory intent, the failure to take action is not itself a violation of the law. In contrast, under the ADA’s accommodation mandate, the employer has an affirmative duty to “mak[e] reasonable accommodations to the ... limitations of an ... individual with a disability.”32 To facilitate the reasonable accommodation the employer is required to make, the federal regulations implementing the ADA envision an interactive process in which the employer and employee are required to participate.33 Under
RkJQdWJsaXNoZXIy OTk3MQ==