Labor & Employment Law Daily Wrap Up, DISCRIMINATION—DISABILITY—2d Cir.: Ability to perform job functions without reasonable accommodations does not preclude ADA claim, (Mar 27, 2025)

By Robert Margolis, J.D.

Court cites “straightforward reading of the ADA” as supporting its conclusion.

Joining at least eight other appellate courts around the country, the Second Circuit held that an employee’s ability to perform essential functions of her job, even without a reasonable accommodation from her employer, is not fatal to an ADA failure-to-accommodate claim. The court rested its decision on what it called a “straightforward reading of the ADA,” highlighting how the statute defines a “qualified individual” in relevant part as “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position ;” The court thus vacated a district court judgment dismissing the failure-to-accommodate claim brought by a teacher against the Whitehall Central School District, and remanded the case back to the district court for further proceedings (Tudor v. Whitehall Central School District, No. 23-665-cv (2d Cir. Mar. 25, 2025)).

PTSD. The employee suffers from post-traumatic stress disorder (“PTSD”), stemming from sexual harassment and sexual assault by a supervisor at a previous workplace. In 2008, when her PTSD symptoms escalated beyond her ability to manage, she sought and received from her employer an accommodation allowing her to take a fifteen-minute break off of campus each morning and afternoon at a time she was not responsible for overseeing students. Being away from the workplace, an environment tending to trigger her symptoms, helped her compose herself.

Unauthorized breaks. This lawsuit concerned the schedule for the 2019-20 school year, in which the employee’s schedule did not allow for such breaks, as no other school employee was able to cover for her during the break periods. The employee nevertheless left school grounds for break during her study hall period on 91 of 100 days of school before the pandemic caused classes to go fully remote. Those breaks were unauthorized.

Lawsuit. The employee sued, claiming that the employer’s refusal to guarantee a 15-minute afternoon break each day during that school year violated the ADA. During discovery, the employee acknowledged that, even without additional accommodations, she could “perform the essential functions of her job” even though it caused her “great duress and harm.” Citing that response, the district court granted summary judgment to the school district, holding that “no factfinder could determine she has established the third element of her failure to accommodate claim,” and that “with reasonable accommodation, plaintiff could perform the essential functions of the job at issue.” This appeal followed.

“Straightforward” interpretation. In rejecting the district court’s reasoning, the appellate court turned to the plain language of the ADA. The statute prevents employers from discriminating against “a qualified individual on the basis of disability in regard to …[the] terms, conditions, and privileges of employment.” Critically, “qualified individual” is defined, 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.” Discrimination includes not making a reasonable accommodation, unless the accommodation would cause the employer undue hardship. Finally, the ADA defines “reasonable accommodation” to include “job restructuring [or] part-time or modified work schedules.”

For the court, when putting these provisions together, the ADA requires an employer, absent undue hardship, to offer an employee with a disability a reasonable accommodation, such as a modified work schedule, if the employee is capable of performing the essential job functions with or without that accommodation. As the appellate court reasoned, the “straightforward reading” of the phrase “with or without” means the fact that an employee can perform her job responsibilities without a reasonable accommodation does not preclude her from being a “qualified individual” who is entitled to a reasonable accommodation, thus meeting that third element of a claim. Finding otherwise is where the district court erred.

Joining other circuits. Noting that it broke no new ground by reaching this conclusion, the court cited decisions from the First, Fifth, Sixth, Ninth, Tenth, Eleventh, and District of Columbia Circuits all holding that the ability to perform essential job functions without a reasonable accommodation is not fatal to an ADA failure-to-accommodate claim, as well as an Eighth Circuit decision consistent with that holding. That so many courts agree is unremarkable to the appellate court, since “[t]he text of the ADA is unambiguous and affords no other reasonable interpretation.”

So how did the district court reach a different conclusion? The appellate court said it may “share the blame” due to the various ways its appellate decisions have articulated the third prong of a failure-to-accommodate claim: comparing “he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation” from one case, and “with reasonable accommodation, plaintiff could perform the essential functions of the job at issue,” from another. Woolf v. Strada, 949 F.3d 89, 93 (2d Cir. 2020), and Natofsky v. City of New York, 921 F.3d 337, 352 (2d Cir. 2019), respectively.

While these formulations are compatible—an employee who can perform essential job functions without a reasonable accommodation certainly can perform them with one—nonetheless they may have engendered confusion. The decision in this case should eliminate any further confusion over this issue.

Issues not decided. Finally, the court noted that it was only deciding whether the absence of necessity for the accommodation is dispositive of a failure-to-accommodate claim. The court was not considering the extent to which the necessity of an accommodation is relevant in the context of any particular failure-to-accommodate claim. Further, the court’s holding does not preclude the employer, on remand, from proving certain defenses to liability, including that the requested accommodation would impose a hardship on the employer. Nor does it purport to resolve fact questions the district court noted over what accommodation might be reasonable and whether the employee has a qualifying disability in the first place.

The case is No. 24-665-cv.

Judge: Jacobs, D.

Attorneys: Karen King (Morvillo Abramowitz Grand Iason & Anello) for Angel Tudor. Patrick J. Fitzgerald, III (Girvin & Ferlazzo) for Whitehall Central School District.

Companies: Whitehall Central School District

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