Ledbetter’s Second Act: Impacts on “Failure to Accommodate” Theory

It has never yet been resolved whether disability plaintiffs who file complaints regarding an employer’s failure to accommodate can seek relief only for failures which occur within the limitations period, or whether a failure to accommodate claim can include related failures outside the limitations period. Plaintiffs have argued that employers should be liable for failures to accommodate which go back years and have had ongoing harmful effects, or for repeated denials of a repeatedly requested accommodation.

By contrast, the timeliness of hostile work environment [HWE] claims has been pretty definitively established since 2002. In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the U.S. Supreme Court held that a HWE is “composed of a series of separate acts that collectively constitute one ‘unlawful employment practice.’” Rather than occurring on a single date, HWEs involve repeated harassing actions which may not be independently actionable, and which cumulatively are sufficiently severe or pervasive to negatively alter the terms and conditions of employment. For this reason, the Court found that the “continuing violation” doctrine is applicable to HWE claims. Under this doctrine, as long as one harassing act which is part of the alleged hostile work environment occurs within the limitations period, the claim is timely and harassing acts outside of the limitations period may also be considered for purposes of determining liability.

Since Morgan, plaintiffs have tried unsuccessfully to analogize failures to accommodate with HWEs, for timeliness purposes. And for quite a while, the EEOC was the only authority willing to “go there.” In 2005, the Commission issued an amendment to Section 2 of its Compliance Manual which incorporated Morgan’s findings on HWE timeliness, and included this tidbit on failures to accommodate:

Repeated occurrences of the same discriminatory employment action, such as discriminatory paychecks, can be challenged as long as one discriminatory act occurred within the charge filing period. [ ] Similarly, because an employer has an ongoing obligation to provide a reasonable accommodation, failure to provide such accommodation constitutes a violation each time the employee needs it. FN 184.

See EEOC Compliance Manual, Chapter 2: Threshold Issues, No. 915.003 issued in July 2005, available at http://eeoc.gov/policy/docs (emphasis added). To the Commission’s credit, it noted a contrary case at footnote 184, signaling “but see Elmenayer v. ABF Freight Sys, Inc, 318 F.3d 130 (2d Cir.2003)(employer’s denial of a proposed religious accommodation that would allow a worker to attend Friday prayer service was a discrete act even though the worker experienced a recurring weekly conflict between his religious duty and his employment requirements).”

In January 2009, the First Circuit issued its own very interesting take on failure to accommodate timeliness, based on Morgan and Ledbetter v. The Goodyear Tire & Rubber Co., 550 U.S. 618, 127 S. Ct. 2162 (2007). In Ledbetter, of course, the Supreme Court did not adopt the EEOC’s above-cited approach to timeliness for paycheck discrimination claims. Instead, it held that

a new violation does not occur, and a new charging period does not commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from . . . past discrimination [. . . However,] if an employer engages in a series of acts each of which is intentionally discriminatory, then a fresh violation takes place when each act is committed.

127 S.Ct. at 2169 (emphasis added). On this basis, in Tobin v. Liberty Mutual, the First Circuit determined that when an employee repeatedly requests a reasonable accommodation and is repeatedly denied, each denial is a discrete act which restarts the clock for limitations purposes. 553 F.3d 121, 132-33 (1st Cir.2009). The Circuit Court stated:

[Tobin] alleges that Liberty Mutual consistently denied his repeated requests for accommodation and asserts that each denial constituted a discrete act that was the basis for a separate claim of discrimination and carried with it a new statute of limitations. The correctness of his view is the inevitable teaching of the Supreme Court’s cases in this area . . . indeed, in the context of disability discrimination, any other approach would fail to take into account the possibility of changes in either the employee’s condition or the workplace environment that could warrant a different response from the employer to renewed requests for accommodation.

Id. at 133 (internal cites omitted). The First Circuit distinguished Tobin from cases where failure to accommodate claims were found untimely because the discrete denials of accommodations had occurred outside the limitations period and only the continuing impact of the untimely denials were alleged to make the claims timely. See id. at 131-32 (distinguishing Elmenayer, supra; Cherosky v. Henderson, 330 F.3d 1243 (9th Cir.2003); De Leon Otero v. Rubero, 820 F.2d 18, 19 (1st Cir.1987)). The Court noted that in both Cherosky and Elmenayer, “the employers committed one allegedly discriminatory act that had continuous impact on individuals who did not make renewed proposals for accommodation during the applicable limitations periods.” Id. at 132. Similarly, in De Leon Otero, the timeliness of the claim depended on the employee’s efforts within the limitations period to win reversal of a discriminatory discharge, rather than the discharge itself, which took place outside of the limitations period. Id. On this basis, the First Circuit held that “the question we must answer is whether any of Tobin’s requests for accommodation occurred during the applicable statutory periods.” Id. at 133 (emphasis added). It further noted that “the timing of Tobin’s requests for accommodation is an issue of fact the jury should logically have been asked to decide.” Id.

Now, one might wonder whether this decision, based on the Ledbetter decision, has survived the Ledbetter Fair Pay Act, which was enacted specifically to overrule the Supreme Court’s findings regarding the timeliness of pay discrimination claims. The Act was signed into law on January 28, 2009 – five days after the Tobin decision was issued. However, the First Circuit’s decision in Tobin should stand, because it stems from the Supreme Court’s conclusions regarding the clock-restarting effects of repeated discrete acts of intentional discrimination (like failures to accommodate). By contrast, the Ledbetter Act overruled the Supreme Court’s findings with respect to the distinguishable situation faced by Mrs. Ledbetter – several years’ worth of unfairly low paychecks resulting from an intentional discriminatory pay decision well outside the limitations period. Thus, enactment of the Ledbetter Fair Pay Act should not affect the specific Supreme Court holding in Ledbetter upon which Tobin is based.