Page

STATEMENT OF THE ISSUES. 1

PERTINENT STATUTORY PROVISIONS. 2

STATEMENT OF THE CASE.. 2

A. Statutory Framework. 2

B. Factual Background. 4

C. Magistrate Judge Decision. 6

SUMMARY OF THE ARGUMENT.. 7

ARGUMENT 9

A. The magistrate judge erred by requiring Beasley to show a separate “adverse employment action” that had a “tangible” and “serious and material” adverse effect on his employment. 9

1. Because denial of a reasonable accommodation inherently impacts “terms, conditions, and privileges of employment” under section 12112(a), no separate “adverse employment action” is required. 9

2. The magistrate judge’s definition of an “adverse employment action” is inconsistent with the text and purpose of the ADA. 17

B. The ADA requires reasonable accommodations necessary for enjoyment of equal benefits and privileges of employment, not just those necessary for performance of essential job functions. 20

CONCLUSION.. 27

CERTIFICATE OF COMPLIANCE.. 28

CERTIFICATE OF SERVICE.. 29

ADDENDUM

TABLE OF CITATIONS

Page(s)

Cases

BedRoc Ltd. v. United States,
541 U.S. 176 (2004)...................................................................... 9

*Bell v. O’Reilly Auto Enters., LLC,
972 F.3d 21 (1st Cir. 2020).......................................... 21, 24, 25

Bonilla v. Baker Concrete Constr., Inc.,
487 F.3d 1340 (11th Cir. 2007)................................................ 24

*Boyle v. City of Pell City,
866 F.3d 1280 (11th Cir. 2017)................................................ 12

*Buckingham v. United States,
998 F.2d 735 (9th Cir. 1993).................................................... 24

*Carroll v. Xerox Corp.,
294 F.3d 231 (1st Cir. 2002)..................................................... 15

Chambers v. District of Columbia,
988 F.3d 497 (D.C. Cir. 2021)................................................. 18

Chevron, U.SA., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837 (1984)................................................................... 22

*Colwell v. Rite Aid Corp.,
602 F.3d 495 (3d Cir. 2010)..................................................... 15

Danielle-DiSerafino v. Dist. Sch. Bd. of Collier Cnty.,
756 F. App’x 940 (11th Cir. 2018) (per curiam)................... 13

Davis v. Town of Lake Park,
245 F.3d 1232 (11th Cir. 2001)....................................... 6, 9, 17

Dean v. United States,
556 U.S. 568 (2009)................................................................... 17

*Dick v. Dickinson State Univ.,
826 F.3d 1054 (8th Cir. 2016).................................................. 15

*Doe v. Dekalb Cnty. Sch. Dist.,
145 F.3d 1441 (11th Cir. 1998)................................................ 19

D’Onofrio v. Costco Wholesale Corp.,
964 F.3d 1014 (11th Cir. 2020)......................................... 11, 23

*EEOC v. AutoZone, Inc.,
630 F.3d 635 (7th Cir. 2010).................................................... 15

*EEOC v. LHC Grp., Inc.,
773 F.3d 688 (5th Cir. 2014).................................................... 15

*EEOC v. UPS Supply Chain Sols.,
620 F.3d 1103 (9th Cir. 2010).................................................. 25

Ellis v. England,
432 F.3d 1321 (11th Cir. 2005)................................................ 13

*Exby-Stolley v. Bd. of Cnty. Comm’rs,
979 F.3d 784 (10th Cir. 2020) (en banc).......................... passim

*Fedro v. Reno,
21 F.3d 1391 (7th Cir. 1994).................................................... 25

*Feist v. La. Dep’t of Just.,
730 F.3d 450 (5th Cir. 2013).................................................... 25

Foster v. Arthur Andersen, LLP,
168 F.3d 1029 (7th Cir. 1999).................................................. 16

*Garrison v. Dolgencorp, LLC,
939 F.3d 937 (8th Cir. 2019).................................................... 15

Harrison v. Benchmark Elecs. Huntsville, Inc.,
593 F.3d 1206 (11th Cir. 2010)................................................ 22

*Hill v. Assocs. for Renewal in Educ., Inc.,
897 F.3d 232 (D.C. Cir. 2018)................................................. 25

*Holly v. Clairson Indus., LLC,
492 F.3d 1247 (11th Cir. 2007).......................................... passim

*Jacques v. Clean-Up Grp., Inc.,
96 F.3d 506 (1st Cir. 1996)....................................................... 24

Jay v. Boyd,
351 U.S. 345 (1956)................................................................... 22

Jefferson v. Sewon Am., Inc.,
891 F.3d 911 (11th Cir. 2018)............................................. 6, 17

LaChance v. Duffy’s Draft House, Inc.,
146 F.3d 832 (11th Cir. 1998)........................................... 23, 24

*Lucas v. W.W. Grainger, Inc.,
257 F.3d 1249 (11th Cir. 2001)..................................... 7, 12, 23

Marshall v. Fed. Express Corp.,
130 F.3d 1095 (D.C. Cir. 1997)........................................ 16, 19

*McMillan v. City of New York,
711 F.3d 120 (2d Cir. 2013)..................................................... 15

*McNely v. Ocala Star-Banner Corp.,
99 F.3d 1068 (11th Cir. 1996).................................................. 19

*Meritor Sav. Bank, FSB v. Vinson,
477 U.S. 57 (1986)........................................................ 10, 18, 19

Morris-Huse v. GEICO,
748 F. App’x 264 (11th Cir. 2018) (per curiam)................... 23

*Nadler v. Harvey,
No. 06-12692, 2007 WL 2404705 (11th Cir. Aug. 24, 2007)................................................................................................ 12, 13

Novella v. Wal-Mart Stores, Inc.,
226 F. App’x 901 (11th Cir. 2007) (per curiam)................... 24

*Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75 (1998)............................................................... 10, 18

Parker v. Sony Pictures Ent., Inc.,
260 F.3d 100 (2d Cir. 2001)..................................................... 15

PGA Tour, Inc. v. Martin,
532 U.S. 661 (2001) .................................................................... 2

*Rhoads v. FDIC,
257 F.3d 373 (4th Cir. 2001).................................................... 15

Russell v. City of Tampa,
652 F. App’x 765 (11th Cir. 2016) (per curiam)................... 13

Samper v. Providence St. Vincent Med. Ctr.,
675 F.3d 1233 (9th Cir. 2012).................................................. 16

*Smith v. Ameritech,
129 F.3d 857 (6th Cir. 1997).................................................... 15

Threat v. City of Cleveland,
6 F.4th 672 (6th Cir. 2021)....................................................... 18

United States v. Kaley,
579 F.3d 1246 (11th Cir. 2009)................................................ 13

Willis v. Conopco, Inc.,
108 F.3d 282 (11th Cir. 1997) (per curiam).......................... 23

Statutes

Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.................................................................................................. passim

*42 U.S.C. § 12101.......................................................... 2, 20, 27

*42 U.S.C. § 12111.......................................................... 3, 21, 25

*42 U.S.C. § 12112............................................................... passim

Rules and Regulations

*29 C.F.R. § 1630.2(o)(1) ......................................................... passim

29 C.F.R. § 1630.4(a)(1) ................................................................. 10

29 C.F.R. Pt. 1630, App. § 1630.2(o) .......................................... 12

*29 C.F.R. Pt. 1630, App. § 1630.9 ....................................... 11, 22

Other Authorities

*EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA, No. 915.002 (Oct. 17, 2002), https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommoation-and-undue-hardship-under-ada..................................................................................... 22

*EEOC Technical Assistance Document: “Deafness and Hearing Impairments in the Workplace and the Americans with Disabilities Act,” No. EEOC-NVTA-2014-1 (May 7, 2014), https://www.eeoc.gov/laws/guidance/deafness-and-hearing-impairments-workplace-and-americans-disabilities-act.............................................................................. 26

Fed. R. App. P. 29(a)......................................................................... 1

Megan I. Brennan, Need I Prove More: Why an Adverse Employment Action Prong Has No Place in a Failure to Accommodate Disability Claim, 36 Hamline L. Rev. 497 (Summer 2013)................... 17

Br. for the United States as Amicus Curiae in Support of Plaintiff-Appellant, Chambers v. District of Columbia,

..... 988 F.3d 497 (D.C. Cir. 2021) (No. 19-7098), 2020 WL 1432198........................................................................................ 18

En Banc Br. for the United States as Amicus Curiae in Support of Plaintiff-Appellant, Chambers v. District of Columbia,

..... No. 19-7098 (D.C. Cir. July 7, 2021), 2021 WL 2853570.. 18

Br. for the United States in Opposition, Forgus v. Esper,
141 S. Ct. 234 (2020) (No. 18-942), 2019 WL 2006239 .... 18

Br. for the United States as Amicus Curiae, Peterson v. Linear Controls, Inc.,
140 S. Ct. 2841 (2020) (No. 18-1401), 2020 WL 1433451. 18

Br. for the United States as Amicus Curiae Supporting Appellant, Staple v. Broward Cnty. Sch. Bd., No. 21-11832, 2021 WL 4307184 (11th Cir. Sept. 20, 2021)....................... 18

Br. for the United States as Amicus Curiae in Support of Neither Party, Threat v. City of Cleveland, 6 F. 4th 672 (6th Cir. 2021) (No. 20-4165),

..... 2021 WL 124790........................................................................ 18

STATEMENT OF INTEREST

Congress charged the Equal Employment Opportunity Commission (“EEOC”) with administering and enforcing federal laws prohibiting employment discrimination, including Title I of the Americans with Disabilities Act, as amended, 42 U.S.C. §§ 12101 et seq. (“ADA”). The magistrate judge held that an employer’s failure to provide a reasonable accommodation is not actionable under the ADA without a separate “adverse employment action,” which she found absent, and that the ADA requires only those accommodations necessary to perform essential job functions. Because affirmance of the magistrate judge’s incorrect rulings would undermine the ADA’s reasonable accommodation mandate, the EEOC offers its views. See Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUES

1. Did the magistrate judge err by holding that an ADA failure-to-accommodate claim is not actionable absent proof of a separate “adverse employment action,” and by defining such an action, if required, as demanding proof of a “tangible” and “serious and material” adverse effect on employment?

2. Did the magistrate judge err by holding that the ADA only requires reasonable accommodations necessary for the performance of essential job functions rather than those necessary for the enjoyment of equal benefits and privileges of employment?

PERTINENT STATUTORY PROVISIONS

Pertinent statutory provisions are reproduced in the addendum to this brief.

STATEMENT OF THE CASE

A. Statutory Framework

Congress enacted the ADA to create a “comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C.
§ 12101(b)(1). “To effectuate its sweeping purpose, the ADA forbids discrimination against disabled individuals in major areas of public life, among them
employment . . . .” PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001).

The ADA’s prohibitions against employment discrimination are set forth in Title I at 42 U.S.C. § 12112. Section 12112(a) provides: “[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Section 12112(b) states that “[a]s used in subsection (a), the term ‘discriminate against a qualified individual on the basis of disability’ includes” a list of specified employer actions. Id. § 12112(b)(1)-(7). One such specified action is “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability,” absent undue hardship. Id. § 12112(b)(5)(A). A “qualified individual” is one “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” Id. § 12111(8).

Title I’s definitional provision states that “[t]he term ‘reasonable accommodation’ may include”:

(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and

(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

Id. § 12111(9) (emphasis added). The EEOC’s implementing regulations[1] further provide that “[t]he term reasonable accommodation means”:

(i) Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or

(ii) Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position; or

(iii) Modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.

29 C.F.R. § 1630.2(o)(1)(i)-(iii).

B. Factual Background

Teddy Beasley, a deaf individual who communicates primarily through American Sign Language (ASL), brought this suit against his former employer, O’Reilly Auto Parts (O’Reilly), claiming, inter alia, that O’Reilly violated the ADA by failing to provide reasonable accommodations. R.1 at 7, ¶ 39.[2] Beasley worked part-time as an in-bound materials handler from 2016-2018; his primary duties involved stocking inventory. R.51-1 at 23 (85:5-16). Beasley asserted that O’Reilly failed to provide an ASL interpreter or equivalent accommodation for mandatory daily staff meetings, a forklift training, the annual company family picnic, and various disciplinary and performance meetings. R.75 at 16.

The failure to provide these accommodations prevented Beasley from interacting with coworkers and understanding critical information conveyed in the workplace. According to Beasley, “I had to repeat and repeat and repeat myself to make sure that they knew to get an interpreter. But in the large group meetings, I would be left out because there would be no interpreter there. That’s what happened over and over again.” R.51-1 at 17 (64:10-14). The lack of an interpreter at the forklift training and company picnic also left Beasley “very confused” and unsure of “what was going on.” R.51-2 at 6 (46:10); R.51-1 at 18 (65:22).

Despite O’Reilly’s repeated failure to provide an interpreter, Beasley consistently earned positive and complimentary performance reviews, resulting in merit-pay increases. See, e.g., R.49-3 at 26 (describing Beasley as a “valued” team member who “sets the tone daily for his fellow team members when it comes to his productivity and team work”). Beasley, however, asserted that O’Reilly’s chronic failure to provide an interpreter negatively impacted his performance reviews and associated merit-pay calculations by, inter alia, preventing him from resolving a disputed citation for missing several days of work for a pre-approved absence. R.75 at 9-10.

On February 6, 2018, Beasley gave notice of his “2 week resignation,” R.49-3 at 2, explaining in relevant part in a follow-up email that:

Hey …. just got the point where enuff is enuff.. I been there and I’ve tried to communicate with Miguel [Beasley’s supervisor].. when we have a meeting or something … theres no way one whole sentence equal 5 to 10 min of convetstaion meeting before we spread out to work.and I’ve tried to get some things work out .. but it seems like the supervisors aren’t doing their job accordingly . . . .

R.49-3 at 35 (errors in original). Beasley timely filed a charge of discrimination, and the EEOC found reasonable cause. R.1 at 5, ¶ 26. After the EEOC issued a right-to-sue notice, Beasley filed this suit.

C. Magistrate Judge Decision

The magistrate judge (whom the parties consented to have conduct all proceedings) granted summary judgment to O’Reilly on two independent grounds.[3]

First, the magistrate judge held that Beasley was “required to present evidence of an ‘adverse employment action’ to sustain his failure-to-accommodate claim.” R.75 at 1-2; see also R.64 at 11-21. This standard, the magistrate judge said, required Beasley to show a “tangible adverse effect” on employment amounting to a “serious and material change in the terms, conditions, or privileges of employment.” R.75 at 8 (quoting Davis v. Town of Lake Park, 245 F.3d 1232, 1239 (11th Cir. 2001), overruled on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), and citing Jefferson v. Sewon Am., Inc., 891 F.3d 911, 920-21 (11th Cir. 2018)); see also R.64 at 14-15. The magistrate judge found this standard unmet, concluding that Beasley did not show constructive discharge or that the failure to provide an interpreter resulted in lower scores on his performance evaluations. R.75 at 8-11 & n.5; R.64 at 20-21.

Second, the magistrate judge ruled in the alternative that Beasley had “not shown that O’Reilly’s failure to provide any accommodation prevented him from performing his essential job functions.” R.75 at 11. The magistrate judge recognized that the text of the ADA, the EEOC’s regulations, and case law from other circuits all supported Beasley’s position that an employer must provide accommodations that enable not just performance of essential job functions but also the enjoyment of equal benefits and privileges of employment. R.75 at 12-14 n.7. While concluding that Beasley’s argument would be “persuasive” if “an issue of first impression,” R.75 at 13 n.7, the magistrate judge believed that “[b]inding Eleventh Circuit precedent” held that “an accommodation is ‘reasonable’ and necessary under the ADA only if it enables the employee to perform the essential functions of the job,” R.75 at 11 (emphasis added) (quoting Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1259-60 (11th Cir. 2001)). Finding that Beasley had shown only that the requested accommodations “might have improved [his] employment experience” and not that they were necessary to perform essential job functions, the magistrate judge granted summary judgment on this basis as well. R.75 at 11, 16-17.

SUMMARY OF THE ARGUMENT

The magistrate judge made two errors in granting summary judgment to O’Reilly on Beasley’s failure-to-accommodate claim. First, the magistrate judge required Beasley to show a separate “adverse employment action” apart from the failure to provide a reasonable accommodation itself. The ADA nowhere mentions an “adverse employment action,” instead requiring that discrimination be “in regard to . . . terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). A “reasonable accommodation” is, by definition, one that serves certain circumscribed purposes aimed at ensuring equal opportunity in the workplace. Denial of an accommodation that meets this definition will thus necessarily impact the “terms, conditions, and privileges of employment,” and no showing of an additional adverse action apart from the accommodation denial itself is required. Moreover, even if denial of a reasonable accommodation cannot be said to inherently implicate an individual’s “terms, conditions, and privileges of employment,” the magistrate judge erred by equating this language with this Court’s Title VII standard for an “adverse employment action,” requiring a “tangible” and “serious and material” adverse effect on employment. Such an interpretation conflicts with the ADA’s text and remedial purpose.

Second, the magistrate judge held that the ADA requires only accommodations necessary for performance of essential job functions. Nothing in the ADA’s plain language limits the accommodation requirement to the performance of essential job functions, and the EEOC’s regulations state that a reasonable accommodation can also be necessary to enable enjoyment of “equal benefits and privileges of employment as are enjoyed by . . . other similarly situated employees without disabilities.” 29 C.F.R. § 1630.2(o)(1)(iii). Other circuits have routinely relied on this regulation to hold that the ADA requires accommodations for purposes other than performance of essential job functions.

ARGUMENT

A. The magistrate judge erred by requiring Beasley to show a separate “adverse employment action” that had a “tangible” and “serious and material” adverse effect on his employment.

The magistrate judge erred in requiring Beasley to establish a separate “adverse employment action” for his failure-to-accommodate claim. The ADA requires that discrimination be “in regard to . . . terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Denial of a reasonable accommodation that a disabled individual needs—whether to perform essential job functions or to enjoy equal benefits and privileges in the workplace—itself establishes the requisite adverse effect on that individual’s “terms, conditions, and privileges of employment” by depriving that individual of equal employment opportunities. Even if denial of a reasonable accommodation cannot be said to inherently impact the “terms, conditions, and privileges of employment,” the magistrate judge erred by interpreting this language as requiring proof of a “tangible” and “serious and material” adverse effect on employment. R.75 at 8 (quoting Davis, 245 F.3d at 1239).

Contrary to the magistrate’s ruling, no separate “adverse employment action” is required to sustain an ADA failure-to-accommodate claim. R.75 at 1-2. The proper starting point, of course, is the statutory text. BedRoc Ltd. v. United States, 541 U.S. 176, 183 (2004). The ADA makes it unlawful to “discriminate against a qualified individual on the basis of disability in regard to . . . terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). The statute provides that the term “‘discriminate against a qualified individual on the basis of disability’ includes” failure to provide a reasonable accommodation. Id. § 12112(b), (b)(5)(A). Thus, to prevail on a failure-to-accommodate claim, a plaintiff must show that the denied accommodation impacts the “terms, conditions, and privileges of employment.”

The statutory phrase “terms, conditions, and privileges of employment” is broad and “evinces a congressional intent ‘to strike at the entire spectrum’” of workplace discrimination. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64, 66 (1986) (citation omitted) (interpreting nearly identical language in Title VII). This phrase “is not limited to ‘economic’ or ‘tangible’ discrimination,” id. at 64, nor does it refer to terms, conditions, or privileges in the “narrow contractual sense,” Oncale v. Sundowner Offshore Servs., Inc, 523 U.S. 75, 78 (1998). Thus, although actions affecting pay and compensation, as well as hiring, firing, and promotions, plainly appertain to “term[s], condition[s], or privilege[s] of employment,” 29 C.F.R. § 1630.4(a)(1)(ii), (iii), (ix), the phrase also encompasses aspects of employment that are not strictly economic in nature, such as job application procedures; job assignments; leave; fringe benefits; social and recreational programs; and selection and financial support for trainings, professional meetings, and conferences. Id. § 1630.4(a)(1)(i), (iv)-(ix).

The denial of a reasonable accommodation “necessarily—indeed, as a matter of logic and common sense—must involve (i.e., be ‘in regard to’) [a] qualified person’s ‘terms, conditions, and privileges of employment,’ as specified in § 12112(a).” Exby-Stolley v. Bd. of Cnty. Comm’rs, 979 F.3d 784, 811 (10th Cir. 2020) (en banc). Understanding the defined scope of the reasonable accommodation provision makes clear why this is so. Not every request by an individual with a disability will amount to a “reasonable accommodation” under the correct legal definition. The ADA does not require an employer to provide “modifications that are primarily for the personal benefit of the individual” or “any amenity or convenience that is not job-related,”
29 C.F.R. Pt. 1630, App. § 1630.9, nor does it require the employer to “accommodate an employee in any manner that the employee desires,” D’Onofrio v. Costco Wholesale Corp., 964 F.3d 1014, 1022 (11th Cir. 2020), cert. denied, 141 S. Ct. 1435 (2021).

Instead, the EEOC’s implementing regulations make clear that a “reasonable accommodation” must serve certain circumscribed purposes, namely, to enable an individual with a disability to: (i) be considered for a desired position; (ii) perform essential job functions; or (iii) enjoy equal benefits and privileges of employment as are enjoyed by similarly situated employees without disabilities. 29 C.F.R. § 1630.2(o)(1)(i)-(iii). Denial of such an accommodation will, by definition under the regulation, affect the terms, conditions, and privileges of employment because it deprives an individual of equal opportunities with respect to critical aspects of employment like hiring, job performance, and the benefits and privileges of the position. Id. Pt. 1630, App. § 1630.2(o) (“[A]n accommodation is any change . . . that enables an individual with a disability to enjoy equal employment opportunities.”). As a result, for a claim premised on denial of a “reasonable accommodation” that meets this standard, no showing of an additional adverse action apart from the accommodation denial itself is required.

This Court has consistently suggested as much, stating that “an employer’s failure to reasonably accommodate a disabled individual itself constitutes unlawful discrimination under the ADA.” Holly v. Clairson Indus., LLC, 492 F.3d 1247, 1262 (11th Cir. 2007); see also Lucas, 257 F.3d at 1255 (“An employer unlawfully discriminates against a qualified individual with a disability when the employer fails to provide ‘reasonable accommodations’ for the disability . . . .”) (emphases added) (citation omitted); Exby-Stolley, 979 F.3d at 804-06 (citing Lucas when including this Court among those that “either state, or strongly suggest that there is no adverse-employment-action requirement in ADA failure-to-accommodate claims”). Indeed, this Court’s decisions suggest that a plaintiff can establish a prima facie case of disability discrimination either by showing the denial of a reasonable accommodation or by showing some additional “adverse employment action,” such as termination. Boyle v. City of Pell City, 866 F.3d 1280, 1289 (11th Cir. 2017) (Rehabilitation Act); Nadler v. Harvey, No. 06-12692, 2007 WL 2404705, at *5 (11th Cir. Aug. 24, 2007) (Rehabilitation Act);[4] see also, e.g., Danielle-DiSerafino v. Dist. Sch. Bd. of Collier Cnty., 756 F. App’x 940, 942 (11th Cir. 2018) (per curiam) (omitting any mention of an adverse employment action when articulating elements of failure-to-accommodate claim); Russell v. City of Tampa, 652 F. App’x 765, 767 (11th Cir. 2016) (per curiam) (same). These decisions thus support the proposition that denial of a reasonable accommodation itself establishes the requisite adverse effect on an individual’s “terms, conditions, and privileges of employment” so as to qualify as unlawful discrimination under the ADA.

The magistrate judge erred by relying on Holly for a contrary conclusion.[5] Although a footnote from Holly suggests that a failure-to-accommodate plaintiff must show that the “employer failed to reasonably accommodate his disability, leading to an adverse employment decision,” 492 F.3d at 1263 n.17, this language was dicta because it was “not necessary to deciding the case.” United States v. Kaley, 579 F.3d 1246, 1253 n.10 (11th Cir. 2009) (citation omitted). In Holly, this Court had no occasion to consider whether a failure to accommodate could be actionable when it does not lead to a separate “adverse employment decision,” 492 F.3d at 1263 n.17, because the employer’s refusal to grant leniency in its punctuality policy plainly had a separate adverse effect on Holly, who was terminated for failure to comply with this policy. Id. at 1249. This Court instead resolved the case on entirely separate grounds. Id. at 1264 (reversing summary judgment based on district court’s errors in analyzing essential functions of Holly’s position and in requiring Holly to provide evidence of disparate treatment). Holly’s footnote, which expounds upon how Holly could show that the “discrimination occurred ‘because of his disability,’” id. at 1263 n.17, should thus be read as discussing the test for causation where the denied accommodation purportedly caused some additional “adverse employment decision,” id., not as finding that a failure-to-accommodate claim can never be actionable in the absence of some such action. Indeed, this Court has never cited Holly’s footnote for this latter proposition.

Reading Holly in this manner avoids conflict with this Court’s precedent, discussed above, and with other circuit decisions suggesting that denial of a reasonable accommodation itself establishes the requisite adverse effect on “terms, conditions, and privileges of employment.” Most notably, in Exby-Stolley v. Board of County Commissioners, the Tenth Circuit, sitting en banc, explained that “a failure-to-accommodate claim . . . need not expressly incorporate the terms-conditions-and-privileges-of-employment language of § 12112(a)[]” because such “language is, in substance,” already “part and parcel” of such a claim. 979 F.3d at 814. Other decisions have similarly treated denial of a reasonable accommodation as itself equivalent to an “adverse employment action.” Dick v. Dickinson State Univ., 826 F.3d 1054, 1060 (8th Cir. 2016) (Rehabilitation Act); see also Colwell v. Rite Aid Corp., 602 F.3d 495, 504 (3d Cir. 2010) (“Adverse employment decisions . . . include refusing to make reasonable accommodations for a plaintiff’s disabilities.” (citation omitted)). And other decisions support this proposition either by explicitly recognizing that “[n]o adverse employment action is required to prove a failure to accommodate,” EEOC v. AutoZone, Inc., 630 F.3d 635, 638 n.1 (7th Cir. 2010); see also Garrison v. Dolgencorp, LLC, 939 F.3d 937, 942 n.1 (8th Cir. 2019); EEOC v. LHC Grp., Inc., 773 F.3d 688, 703 n.6 (5th Cir. 2014), or by omitting mention of any adverse employment action when articulating the elements of a failure-to-accommodate claim, see, e.g., McMillan v. City of New York, 711 F.3d 120, 125-26 (2d Cir. 2013); Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir. 2002); Rhoads v. FDIC, 257 F.3d 373, 387 n.11 (4th Cir. 2001); Smith v. Ameritech, 129 F.3d 857, 866 (6th Cir. 1997).

While some decisions from other circuits contain language suggesting the need for an “adverse employment action,” none of these decisions squarely addressed the issue. Many instead focused on causation where the plaintiff had undisputedly suffered a separate adverse employment action, such as termination. See Parker v. Sony Pictures Ent., Inc., 260 F.3d 100, 107 (2d Cir. 2001) (upholding jury interrogatory requiring plaintiff to “prove a causal connection” between denied accommodation and discharge); Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1034 (7th Cir. 1999) (affirming summary judgment because plaintiff had “failed to create a triable issue concerning whether her request for an accommodation was a factor that motivated [the employer] to terminate her”), abrogation on other grounds recognized by Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 962-63 (7th Cir. 2010). Other seemingly negative decisions are equally inapposite because they rested on grounds distinct from the absence of an adverse employment action. See Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237-38 (9th Cir. 2012) (including “adverse employment action” as element of failure-to-accommodate claim but affirming summary judgment because plaintiff was not qualified); Marshall v. Fed. Express Corp., 130 F.3d 1095, 1098-99 (D.C. Cir. 1997) (finding no “adverse action before [the court] with any nexus to a possible denial of reasonable accommodation” because plaintiff failed to exhaust termination claim and “required no accommodation at all” in other aspects of employment). These decisions thus should not be read as holding that a failure-to-accommodate claim is actionable only when it leads to some additional “adverse employment action.”

Indeed, “it would verge on the illogical to require failure-to-accommodate plaintiffs to establish that their employer acted adversely toward them—when the fundamental nature of the claim is that the employer failed to act.” Exby-Stolley, 979 F.3d at 797. A contrary ruling would allow employers to escape their affirmative duty to provide a reasonable accommodation by simply refraining from taking a separate adverse employment action, leaving employees with “no legal recourse” to compel provision of the required accommodation. Megan I. Brennan, Need I Prove More: Why an Adverse Employment Action Prong Has No Place in a Failure to Accommodate Disability Claim, 36 Hamline L. Rev. 497, 513 (Summer 2013).

2. The magistrate judge’s definition of an “adverse employment action” is inconsistent with the text and purpose of the ADA.

Even if denial of a reasonable accommodation does not inherently implicate an individual’s “terms, conditions, and privileges of employment,” it would still be impermissible to equate this language with an “adverse employment action,” which the magistrate judge defined as requiring proof of a “tangible” and “serious and material” effect on employment. R.75 at 8 (quoting Davis, 245 F.3d at 1239 and citing Jefferson, 891 F.3d at 920-21). Demanding proof of “tangible” or “serious and material” harm is inconsistent with the ADA’s text, which requires only action “in regard to . . . terms, conditions, and privileges of employment” and does not specify that such harm must rise to a certain level before becoming actionable. 42 U.S.C. § 12112(a). By grafting onto the ADA’s clear statutory provision an additional requirement that the harm be “tangible” and “serious and material” in nature, the magistrate judge impermissibly “read[] words or elements into [the] statute that do not appear on its face.” Dean v. United States, 556 U.S. 568, 572 (2009) (citation omitted). Moreover, such a requirement conflicts with Supreme Court precedent interpreting the phrase “terms, conditions, or privileges” in the Title VII context as extending beyond “economic” or “tangible” discrimination, Meritor, 477 U.S. at 64, of a “narrow contractual” type, Oncale, 523 U.S. at 78.

In arriving at this atextual reading of the ADA, the magistrate judge relied on this Court’s decisions narrowly defining an “adverse employment action” under Title VII. R.75 at 8. The United States recently explained in a religious accommodation case currently pending in this Court why the “serious and material” harm standard is incorrect under Title VII.[6] See Br. for the United States as Amicus Curiae Supporting Appellant, Staple v. Broward Cnty Sch. Bd., No. 21-11832, 2021 WL 4307184 (11th Cir. Sept. 20, 2021). But regardless of whether this standard is correct under Title VII, the magistrate judge was not bound to apply this standard to Beasley’s ADA failure-to-accommodate claim because this Court has never required proof of any “adverse employment action” for such a claim, much less articulated the standard for such a showing.

Applying a textually faithful standard in this context would align with this Court’s precedent recognizing that the ADA “prohibit[s] a wide range of job actions,” including those “that impede . . . professional growth or advancement.” Doe v. Dekalb Cnty. Sch. Dist. 145 F.3d 1441, 1452 (11th Cir. 1998); see also McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1077 (11th Cir. 1996) (ADA “prohibits a broad variety of adverse employment actions”). Other circuits, too, have been “unwilling to equate” the ADA’s “terms, conditions, and privileges” language, which “correctly signals the expansive sweep of the ADA’s . . . anti-discrimination mandate,” with “language—i.e., ‘adverse employment action’—that indicates that the discrimination proscription does not extend to circumstances where there is no ‘significant change in employment status.’” Exby-Stolley, 979 F.3d at 818 (citation omitted); id. at 816-17 (relying on Meritor to conclude that a “definition of ‘adverse employment action’” that requires something akin to serious and material harm “is not synonymous with the definition of ‘terms, conditions, and privileges of employment’ . . . found in controlling law”); see also id. at 840 (McHugh, J., dissenting) (ADA’s “terms, conditions, and privileges” standard could be satisfied “by showing a constructive change or disparity in those terms or conditions”); Marshall, 130 F.3d at 1099 (assuming that ADA’s “terms, conditions, and privileges” standard could encompass accommodation denials inflicting pain or hardship “despite there being no job loss, pay loss, transfer, demotion, denial of advancement, or other adverse personnel action”).

Applying a broader standard in the failure-to-accommodate context would also promote the ADA’s expansive aim of assuring “full participation” and “equality of opportunity” in the workplace. 42 U.S.C. § 12101(a)(7). If a failure to accommodate were actionable only upon proof of “tangible” harm, then accommodation denials that prevent individuals with disabilities from achieving their “full professional potential” would go unredressed, undermining the remedial purpose of the statute. Exby-Stolley, 979 F.3d at 800.

B. The ADA requires reasonable accommodations necessary for enjoyment of equal benefits and privileges of employment, not just those necessary for performance of essential job functions.

The magistrate judge also erred by holding that the ADA only requires reasonable accommodations necessary for performance of essential job functions. The text of the ADA, the EEOC’s regulations, and a considerable body of decisions from other circuits all support the proposition that the ADA also requires accommodations necessary for enjoyment of equal benefits and privileges of employment.

First, nothing in the plain language of the ADA’s reasonable accommodation provision limits this requirement to performance of essential job functions. See 42 U.S.C. § 12112(b)(5)(A) (prohibiting “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability,” absent undue hardship). The statute gives several examples of what may constitute a “reasonable accommodation” but nowhere limits the definition to only

those accommodations required for performance of essential job functions. Id.
§ 12111(9). While it is true that the ADA requires accommodations necessary for performance of essential job functions, id. § 12111(8), the ADA’s concerns extend more broadly to promoting full access to the benefits and privileges of employment. Id. § 12112(a) (prohibiting discrimination in “advancement, . . . job training, and other terms, conditions, and privileges of employment”); id. § 12112(b)(1) (prohibiting limiting or segregating individuals because of disability).

Moreover, the statutory definition of a “qualified individual” includes those who can perform essential job functions “without reasonable accommodation.” Id.
§ 12111(8) (emphasis added). The fact that such individuals can nonetheless bring failure-to-accommodate claims indicates that the requested accommodation need not be critical to the performance of essential job functions. See Bell v. O’Reilly Auto Enters., LLC, 972 F.3d 21, 24 (1st Cir. 2020) (relying on this statutory language to conclude that “[a]n employee who can, with some difficulty, perform the essential functions of his job without accommodation remains eligible to request and receive a reasonable accommodation”), cert. denied, 141 S. Ct. 2755 (2021).

The EEOC’s regulations also make clear that, while a “reasonable accommodation” can be one that enables an employee “to perform the essential functions” of a position, it can also be one that enables an employee to “enjoy equal benefits and privileges of employment as are enjoyed by . . . other similarly situated employees without disabilities.” 29 C.F.R. § 1630.2(o)(1)(ii), (iii). These regulations plainly reflect a permissible construction of the statute and so are entitled to “substantial judicial deference.” Harrison v. Benchmark Elecs. Huntsville, Inc., 593 F.3d 1206, 1215 n.9 (11th Cir. 2010); see also Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). A contrary interpretation that would require ignoring entire regulatory provisions should be rejected. Jay v. Boyd, 351 U.S. 345, 360 (1956). The EEOC’s enforcement guidance, which constitutes a “body of experience and informed judgment to which [the Court] may properly resort for guidance,” Harrison, 593 F.3d at 1216 n.10 (citation omitted), further supports the proposition that the ADA requires accommodations needed “to gain access to, and have an equal opportunity to participate in, the[] benefits and privileges” of employment.[7] EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA, No. 915.002 (Oct. 17, 2002), https://www.eeoc.gov/laws/guidance/

enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada.

This Court’s decisions stating that the ADA requires an accommodation “only if it enables the employee to perform the essential functions of the job” do not require a contrary conclusion.[8] Holly, 492 F.3d at 1256; Lucas, 257 F.3d at 1255; LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 835-36 (11th Cir. 1998). In each of these cases, this language simply served to explain that an individual who is unable to perform essential job functions even with an accommodation is not a qualified individual under the statute. Holly, 492 F.3d at 1256-61 (fact issue existed as to whether accommodation would have enabled plaintiff to perform essential job functions); Lucas, 257 F.3d at 1259-60 (no accommodation required because accommodation would have required employer to eliminate essential job functions); LaChance, 146 F.3d at 835 (no accommodation required because plaintiff failed to identify accommodation that would enable him to perform essential job functions safely). This Court’s decisions thus stand for the unremarkable proposition that if an individual remains “unable to perform an essential function of the job, even with an accommodation, he is, by definition, not a ‘qualified individual’” and no accommodation is required. Holly, 492 F.3d at 1256 (citation omitted).

This Court’s unpublished decision in Novella v. Wal-Mart Stores, Inc., 226 F. App’x 901 (11th Cir. 2007) (per curiam) rests on a misreading of the precedent discussed above. In Novella, a deaf employee argued that the failure to provide an interpreter during his termination meeting prevented him from both performing essential job functions and enjoying equal benefits and privileges of employment. Id. at 902. This Court declined to determine whether this accommodation related to the benefits and privileges of employment, citing LaChance for the proposition that an accommodation is reasonable only if it enables performance of essential job functions and affirming summary judgment on the ground that no essential function was implicated. Id. at 903. Because Novella misreads the language discussed above as having held that accommodations are only required when necessary to perform essential job functions, Novella is unpersuasive and should not be followed. See Bonilla v. Baker Concrete Constr., Inc., 487 F.3d 1340, 1345 n.7 (11th Cir. 2007) (“Unpublished opinions are not controlling authority and are persuasive only insofar as their legal analysis warrants.”).

A contrary reading of this Court’s precedent would create conflict with numerous circuit decisions holding that employers are not “relieved of their duty to accommodate” where employees are able to perform a job’s essential functions. Jacques v. Clean-Up Grp., Inc., 96 F.3d 506, 515 n.9 (1st Cir. 1996); Buckingham v. United States, 998 F.2d 735, 740 (9th Cir. 1993) (same, Rehabilitation Act); see also Bell, 972 F.3d at 24 (district court erred by instructing jury that failure-to-accommodate plaintiff “must demonstrate that he needed an accommodation to perform the essential functions of his job”); Hill v. Assocs. for Renewal in Educ., Inc., 897 F.3d 232, 239 (D.C. Cir. 2018) (rejecting argument that no accommodation was required where plaintiff “could perform the essential functions of his job without accommodation”); Feist v. La. Dep’t of Just., 730 F.3d 450, 453 (5th Cir. 2013) (“[R]easonable accommodation[s] need not relate to the performance of essential job functions.”); Sanchez v. Vilsack, 695 F.3d 1174, 1182 (10th Cir. 2012) (rejecting argument that Rehabilitation Act requires accommodations “only if an employee cannot perform the essential functions of her job”); Fedro v. Reno, 21 F.3d 1391, 1395-96 (7th Cir. 1994) (Rehabilitation Act contemplates accommodations necessary for enjoyment of equal benefits and privileges of employment).

In Beasley’s case, then, provision of an interpreter or equivalent accommodation would be required if necessary for him to enjoy the benefit and privilege of understanding and participating in workplace meetings, trainings, or social events, even if O’Reilly “pronounced itself fully satisfied” with his “level of performance” absent such an accommodation. Bell, 972 F.3d at 24 (citation omitted); see also 42 U.S.C. § 12111(9)(B) (“‘reasonable accommodation’ may include” “provision of qualified . . . interpreters,” with no specification that interpretation must be necessary for performance of essential job functions); EEOC v. UPS Supply Chain Sols., 620 F.3d 1103, 1111 (9th Cir. 2010) (noting employer’s concession in case involving deaf employee that employer must provide “modifications that enable an employee ‘to enjoy equal benefits and privileges of employment,’” including “the benefits and privileges of understanding and participating in” even those meetings that “have no bearing on an employee’s job performance” (quoting 29 C.F.R.
§ 1630.2(o)(1)(iii))); EEOC Technical Assistance Document: “Deafness and Hearing Impairments in the Workplace and the Americans with Disabilities Act,” No. EEOC-NVTA-2014-1 (May 7, 2014), https://www.eeoc.gov/laws/guidance/deafness-and-hearing-impairments-workplace-and-americans-disabilities-act, at Question 14 (“Reasonable accommodations related to the benefits and privileges of employment include . . . access to information communicated in the workplace, and the opportunity to participate in employer-sponsored training and social events.”); see id. at Example 7 (employer may have to provide sign-language interpreter at large-group conferences and meetings as a reasonable accommodation).

The record contains ample evidence that Beasley required an interpreter for precisely this purpose and that without it, he was isolated and uninformed about important workplace practices. See, e.g., R.51-1 at 25 (94:4-11) (Beasley’s testimony that, for “so many meetings,” he “wasn’t really involved. I just was physically present. . . . I would have to find somebody who could tell me what all they said in the meeting after a meeting happened.”); R.51-2 at 6 (46:10-11, 47:19) (during company picnic Beasley “didn’t understand what [his colleague] said” and was “very confused” and “totally lost”); R.51-1 at 18 (65:19-22) (Beasley “didn’t really know what was going on” during forklift training and “left for the day because there was no interpreter”). The magistrate judge’s ruling, if affirmed, would preclude Beasley and other hearing-impaired individuals from receiving accommodations necessary to enjoy these vital privileges of communicating and participating in the workplace simply because they could perform their basic job functions. The ADA’s core objectives of ensuring “equality of opportunity” and “full participation” in employment, 42 U.S.C.
§ 12101(a)(7), do not countenance such an outcome.

CONCLUSION

For the foregoing reasons, the judgment should be reversed.

Respectfully submitted,

GWENDOLYN YOUNG REAMS

Acting General Counsel

JENNIfer s. goldstein

Associate General Counsel

ANNE NOEL OCCHIALINO

Acting Assistant General Counsel

/s/ Chelsea C. Sharon

CHELSEA C. SHARON

Attorney, Appellate Litigation Services

Office of General Counsel

Equal Employment Opportunity Commission

131 M St. NE, Fifth Floor

Washington, DC 20507

(202) 921-2889

chelsea.sharon@eeoc.gov

November 8, 2021

42 U.S.C. § 12101. Findings and purpose

(a) Findings

The Congress finds that --

. . .

(7) the Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals;

. . .

(b) Purpose

It is the purpose of this chapter --

(1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;

. . .

42 U.S.C. § 12111. Definitions

. . .

(8) Qualified individual

The term “qualified individual” means an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this subchapter, consideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.

(9) Reasonable accommodation

The term “reasonable accommodation” may include—

(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and

(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

. . .

42 U.S.C. § 12112. Discrimination

(a) General Rule

No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

(b) Construction

As used in subsection (a), the term “discriminate against a qualified individual on the basis of disability” includes --

(1) limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee;

(2) participating in a contractual or other arrangement or relationship that has the effect of subjecting a covered entity’s qualified applicant or employee with a disability to the discrimination prohibited by this subchapter (such relationship includes a relationship with an employment or referral agency, labor union, an organization providing fringe benefits to an employee of the covered entity, or an organization providing training and apprenticeship programs);

(3) utilizing standards, criteria, or methods of administration --

(A) that have the effect of discrimination on the basis of disability; or

(B) that perpetuate the discrimination of others who are subject to common administrative control;

(4) excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association;

(5)(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity; or

(B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant;

(6) using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity; and

(7) failing to select and administer tests concerning employment in the most effective manner to ensure that, when such test is administered to a job applicant or employee who has a disability that impairs sensory, manual, or speaking skills, such test results accurately reflect the skills, aptitude, or whatever other factor of such applicant or employee that such test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of such employee or applicant (except where such skills are the factors that the test purports to measure).

29 C.F.R. § 1630.2. Definitions.

(o) Reasonable accommodation.

(1) The term reasonable accommodation means:

(i) Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or

. . .

29 C.F.R. § 1630.4. Discrimination prohibited.

(a) In general—

(1) It is unlawful for a covered entity to discriminate on the basis of disability against a qualified individual in regard to:

(i) Recruitment, advertising, and job application procedures;

(ii) Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff, and rehiring;

(iii) Rates of pay or any other form of compensation and changes in compensation;

(iv) Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists;

(v) Leaves of absence, sick leave, or any other leave;

(vi) Fringe benefits available by virtue of employment, whether or not administered by the covered entity;

(vii) Selection and financial support for training, including: apprenticeships, professional meetings, conferences and other related activities, and selection for leaves of absence to pursue training;

(viii) Activities sponsored by a covered entity, including social and recreational programs; and

(ix) Any other term, condition, or privilege of employment.

. . .

[1] Congress expressly authorized the EEOC to issue regulations to implement Title I of the ADA. 42 U.S.C. § 12116.

[2] Citations to the district court record take the form R.[docket number] at [CM/ECF-assigned page number].

[3] The magistrate judge granted O’Reilly’s summary judgment motion and denied Beasley’s motion for partial summary judgment on his failure-to-accommodate claim, R.71; she explained her reasoning in two different opinions, R.64 and R.75.

[4] This Court reviews Rehabilitation Act claims under the same standards governing ADA claims. Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005).

[5] To the extent the magistrate judge’s holding rested not just on Holly but also on the purported applicability of the McDonnell Douglas burden-shifting framework to failure-to-accommodate claims, R.64 at 11-12, 16-19, this too constituted error. While this Court applies McDonnell Douglas burden-shifting in the context of ADA disparate treatment claims, this framework “is not applicable to reasonable accommodation cases.” Nadler, 2007 WL 2404705, at *9 (collecting cases); see also Holly, 492 F.3d at 1262 (no “subsequent burden[]” on employer to show non-discriminatory reasons or on plaintiff to show pretext after establishing prima facie case).

[6] The United States has filed numerous other briefs respectfully disagreeing with use of the “serious and material” harm standard under Title VII. See, e.g., Br. for the United States as Amicus Curiae, Peterson v. Linear Controls, Inc., 140 S. Ct. 2841 (2020) (dismissing certiorari petition) (No. 18-1401), 2020 WL 1433451, at *15-17; Br. for the United States in Opposition, Forgus v. Esper, 141 S. Ct. 234 (2020) (denying certiorari petition) (No. 18-942), 2019 WL 2006239, at *11-16; Br. for the United States as Amicus Curiae in Support of Neither Party, Threat v. City of Cleveland, 6 F.4th 672 (6th Cir. 2021) (No. 20-4165), 2021 WL 124790; Br. for the United States as Amicus Curiae in Support of Plaintiff-Appellant, Chambers v. District of Columbia, 988 F.3d 497 (D.C. Cir. 2021) (No. 19-7098), 2020 WL 1432198; En Banc Br. for the United States as Amicus Curiae in Support of Plaintiff-Appellant, Chambers v. District of Columbia, No. 19-7098 (D.C. Cir. July 7, 2021), 2021 WL 2853570.

Several circuits have been receptive to these arguments. See, e.g., Chambers, 988 F.3d at 503 (Tatel and Ginsburg, JJ., concurring) (urging rehearing en banc to “correct our court’s precedential interpretation of Title VII’s antidiscrimination provision”), vacated & reh’g en banc granted, No. 19-7098, 2021 WL 1784792 (D.C. Cir. May 5, 2021); Threat, 6 F.4th at 677-80 (reaffirming that Title VII’s text “means what it says” in holding that race-based shift change was discrimination “in the terms and privileges of employment”).

[7] The EEOC’s regulations and guidance make clear that a workplace modification in this context is only required when necessary for the employee to enjoy “equal benefits and privileges” as enjoyed by “similarly situated employees without disabilities,” not all benefits and privileges of the employee’s choosing. 29 C.F.R. § 1630.2(o)(1)(iii) (emphases added). Thus, an employer would not be required, for instance, to provide an “amenity or convenience” like a refrigerator that “is not provided to employees without disabilities.” Id. Pt. 1630, App. § 1630.9.

[8] Other decisions of this Court state similar propositions in generally describing “nuances to the reasonable accommodation framework,” D’Onofrio, 964 F.3d at 1022; see also Willis v. Conopco, Inc., 108 F.3d 282, 284 (11th Cir. 1997) (per curiam), or in discussing the test for determining whether an individual is “qualified,” see e.g., Morris-Huse v. GEICO, 748 F. App’x 264, 266 (11th Cir. 2018) (per curiam), but none have rejected a failure-to-accommodate claim for lack of a nexus to essential job functions.