Circuit Split Deepens on “Harm” as a Failure to Accommodate Element

The split among federal circuit courts of appeal as to whether a disabled worker must show harm in bringing a failure to accommodate claim continues. Recently, the Fifth Circuit joined the majority of circuits in finding that harm is not an element of a failure to accommodate claim. 

On May 16, 2025, the Fifth Circuit reversed, in part, a lower court decision that required harm as an element of a failure to accommodate claim.

Strife v. Aldine Independent School District, Case No. 24-20269, Plaintiff Strife, an Army veteran who served in Operation Iraqi Freedom and was injured during service, became a teacher after her discharge from the Army. Subsequently, Strife was promoted to work in human resources for the school district. Strife had a service dog to assist with both her physical and psychological disabilities, including balance, fall protection, and PTSD mitigation. 

Strife requested the accommodation of allowing her service dog to accompany her at work — an accommodation that was not approved for six months, and only approved after she filed a lawsuit, and an injunction hearing was pending. The Fifth Circuit decision focused on her failure to accommodate claim — specifically, whether this six-month delay was a failure to accommodate. 

The Fifth Circuit found the district court improperly dismissed this claim because the dismissal relied in part on Plaintiff’s failure to allege an injury during the accommodation request period. While the district court found this lack of harm rendered the pleading insufficient, the Fifth Circuit disagreed and reversed. 

The Fifth Circuit decision that a failure to accommodate claim does not require the element of harm aligns with existing decisions out of the First, Second, Third, Fourth, Sixth, Seventh, Tenth, and D.C. Circuits. The Eighth, Ninth, and Eleventh Circuits have held otherwise. 

At this time, employers should:

• be aware of the differing standards between circuits and plan litigation strategy accordingly; 
• continue to heed the most recent ruling from the Supreme Court in Muldrow v. St. Louis that workers must, for a Title VII claim, only show “some harm” that left them “worse off” as to their employment; and 
• adhere to the obligation to engage in the interactive process when managing accommodation requests.