The Oklahoma Bar Journal August 2025

L abor & E mployment

T ITLE I OF THE AMERICANS WITH DISABILITIES ACT (ADA), 42 U.S.C. §§12111-12117, is unique among workplace anti-discrimination laws because it not only prohibits differential treatment based on a protected characteristic (disability) but, in some circum stances, also compels an employer to treat an individual with a disability differently than nondisabled employees. Section 12112(a) of the ADA sets out the rule prohibiting disability discrimination in the workplace: Navigating the Differences Between Disparate Treatment and Failure-to-Accommodate Claims Under the Americans with Disabilities Act By Amber L. Hurst

particular characteristic. 1 It is the taking of an action ( e.g. , termina tion, promotion, etc.), and doing so based on disability, that constitutes discrimination against a qualified individual on the basis of disability. However, the ADA also defines the term “discriminate against a qualified individual on the basis of disability” to include not taking particular action, specifically “not making reasonable accommoda tions to the known physical or mental limitations of an other wise qualified individual with a disability who is an applicant or employee” unless the employer

“can demonstrate that the accom modation would impose an undue hardship.” 2 Under this “accommo dation mandate,” an employer has an “ affirmative obligation to make reasonable accommodation.” 3 This article addresses the differences between the ADA’s disparate treatment prohibition and accommodation mandate – the “interactive process” under the ADA’s accommodation mandate – and potential missteps in carrying out the accommodation process.

(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 dis charge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. Title 42 U.S.C. §12112(a) (here inafter the disparate treatment prohibition) is consistent with the common understanding of the term “discriminate,” which is to distin guish or differentiate based on a

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.

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THE OKLAHOMA BAR JOURNAL