This week’s blog entry discusses ABA Formal Opinion 517. That opinion talks about discrimination in the jury selection process under ABA model rule 8.4(g) which prohibits attorneys from discriminating on the basis of various protected characteristics. As readers of my blog know, this has been a long-standing interest of mine. For example, we discussed peremptory challenges and persons with disabilities, here and here.

 

The blog entry is divided into the categories of highlights of opinion and thoughts/takeaways. It’s pretty short, so the reader will probably want to read the whole thing, but of course the reader is free to focus on either category or both. Finally, I am a member of the ABA Law Practice Ethics and Professionalism Committee. However, the opinions contained in this blog entry, what you will find in the thoughts/takeaways section of this blog entry, are my own and do not represent or are meant to represent the opinions of any other member of the committee or the committee itself.

 

I

Highlights of Opinion

 

  1. A lawyer who knows or reasonably should know that the lawyer’s exercise of peremptory challenges constitutes unlawful discrimination in the jury selection process violates Model Rule 8.4(g).
  2. It is not “legitimate advocacy” within the meaning of Model Rule 8.4(g) for a lawyer to carry out a trial strategy that results in unlawful juror discrimination.
  3. A lawyer may not follow a client’s directive or accept a jury consultant’s advice or AI software’s guidance to exercise peremptory challenges if the lawyer knows or reasonably should know that the conduct constitutes unlawful juror discrimination.
  4. However, a lawyer does not violate Rule 8.4(g) by exercising peremptory challenges on a discriminatory basis where not forbidden by other law.
  5. Rule 8.4(g) provides: It is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.
  6. In a footnote, the opinion says that United States v. Harris, 197 F.3d 870 (7th 1999), decided that persons with disabilities do not have the right to have Batson challenges exercised on their behalf.
  7. Striking prospective jurors on a discriminatory basis in violation of substantive law governing jury selection is not legitimate advocacy.
  8. Conduct that has been declared illegal by the courts or a legislature cannot constitute “legitimate advocacy.” Put another way, a lawyer who violates Batson has engaged in unlawful discrimination in the jury selection process which, by definition, cannot be deemed “legitimate” conduct. Comment [5] states that a trial judge’s finding of unlawful juror discrimination is not, alone, enough to prove a violation in a discipline proceeding.
  9. A judge’s finding of a Batson violation, under the procedures set forth in the case law does not automatically equate with a Rule 8.4(g) violation, particularly given the higher burden of proof that may apply in disciplinary proceedings.
  10. A disciplinary hearing may yield more complete information and enable the lawyer to offer a more fulsome explanation for exercising peremptory challenges than may have been available during jury selection in the trial in question. For example, to preserve client confidentiality, the lawyer may have provided limited information about the reasons for peremptory challenges or the judge may have needed to make a quick ruling without a full and fair evidentiary hearing. In addition, the extent and severity of unlawful juror discrimination is relevant to a disciplinary authority’s decisions, including whether to investigate the matter at all.
  11. The history of what is now Comment [5] to Model Rule 8.4 (previously Comment [3]) suggests that the “Batson exception” to Model Rule 8.4(g) was based on concerns voiced by the ABA Criminal Justice Section that a trial judge’s subjective decision in the midst of trial to disbelieve a lawyer’s neutral explanation for striking a juror should not become conclusive evidence in a later disciplinary prosecution over discriminatory conduct.
  12. In addition, Comment [5] is limited to a “trial judge’s” finding of juror discrimination. It says nothing about how a decision by another court (such as an appellate court or a court conducting a habeas review) based on a more fulsome record should be treated if that court finds that a lawyer engaged in unlawful juror discrimination.
  13. A lawyer’s unlawful exercise of peremptory challenges does not violate Rule 8.4(g) unless the lawyer “knows or reasonably should know” that the exercise of a peremptory challenge is impermissibly discriminatory. Many rules incorporate a knowledge standard, and “knows” is a defined term in the Model Rules. There may be situations where a lawyer violates Batson but does not know it, because the lawyer erroneously believes that the lawyer’s genuine bases for exercising peremptory challenges do not discriminate based on impermissible attributes. In that event, the question will be whether the lawyer “reasonably should have known” that the lawyer’s conduct was impermissible. Rule 1.0(j) defines “reasonably should know” to mean that “a lawyer of reasonable prudence and competence would ascertain the matter in question.” Ordinarily, when a lawyer decides whether to exercise peremptory challenges, rather than deferring to or relying on someone else, the lawyer will know the genuine reasons for the challenges.
  14. Even so, the lawyer may be mistaken about the legal significance of these reasons. In that event, the question will be whether “a lawyer of reasonable prudence and competence” would have known that the challenges were impermissible.
  15. Whether the lawyer has the requisite culpability will be a more difficult question when, to promote the attorney-client relationship or for reasons of trial strategy, the lawyer defers to others’ judgment.
  16. If the client or jury consultant volunteers or acknowledges that the reason is race- or gender-based, then the lawyer who implements the client’s instruction or the consultant’s suggestion would be knowingly discriminating. That a lawyer acts at a client’s direction does not make otherwise unlawful conduct legitimate. When clients ask lawyers to engage in unlawful conduct, the Model Rules require lawyers to refuse.
  17. Where the lawyer does not personally intend to discriminate on the basis of a protected class but may be advancing someone else’s intent to do so, the “reasonably should know” standard imposes a duty of inquiry. If, upon inquiry, the lawyer ascertains that the client or consultant has sincere reasons that are legitimate, not impermissibly discriminatory, then the lawyer may exercise the peremptory challenges; if an objection is made, or the judge questions the lawyer’s motivations sua sponte, the lawyer may advance those reasons. But if a reasonably competent and prudent lawyer would know that the reasons are pretextual, and that the proposed exercise of peremptory challenges is unlawful, then the lawyer must refrain from relying on the client or consultant.
  18. A similar question about the lawyer’s culpability may be raised when the lawyer relies on software in making decisions about jury selection. It is conceivable that the lawyer could strike jurors for unlawfully discriminatory reasons, constituting purposeful discrimination in violation of Batson, even if the lawyer had no intention of doing so.
  19. Whether a lawyer “reasonably should know” that the peremptory challenges were impermissibly discriminatory will depend on the circumstances. In the context of an AI-assisted program, lawyers should conduct sufficient due diligence to acquire a general understanding of the methodology employed by the juror selection program.
  20. In the context of jury selection, a trial lawyer whose peremptory challenges are discriminatory but lawful has not violated Model Rule 8.4(g).
  21. Therefore, even where unlawful juror discrimination is client directed, the lawyer has no obligation under the Model Rules to follow that direction. On the contrary, the lawyer would have an obligation to consult with the client about the manner in which the lawyer is legally permitted to conduct jury selection and explain any relevant constraints on the lawyer’s ability to carry out the client’s desired strategy.

 

II

Thoughts/Takeaways

 

  1. As noted at the beginning of this blog entry, we have discussed peremptory challenges and persons with disabilities before. The ABA reference to United States v. Harris is unfortunate because that case is no longer good law. Harris holds that persons with disabilities cannot have Batson challenges exercised on their behalf because they fall in the rational basis class. However, Tennessee v. Lane, here, holds that when it comes to accessing the court system, persons with disabilities are not in the rational basis class at all. Accordingly, since the basis for the holding in Harris has clearly been superseded by Tennessee v. Lane, persons with disabilities have the ability to have Batson challenges exercised on their behalf, and United States v. Harris is no longer good law.
  2. The other piece missing from this opinion is the ADA itself. As we first discussed in the blog here, complying with the ADA is a nondelegable duty. Also, lawyers and judges are subject to the ADA themselves when it comes to their actions in the courtroom either under Title II (if they work for a nonfederal governmental entity), title III (if they are part of a private law firm), or Title V (retaliation and interference provision of 42 U.S.C. §12203). So, a litigating attorney in the courtroom that does not understand their obligations under the ADA runs a real risk of interfering with ADA protected rights. A judge runs the risk of not only interfering with ADA protected rights but depending upon what they do when the rights are made known to them, retaliation as well. Of course, none of this accounts for any immunities, but even so the liability risks remain. See also this blog entry.
  3. Not all states have adopted the ABA model rule on nondiscrimination. One wonders if this opinion won’t act as a disincentive for states considering adopting this rule to not do so.
  4. “Reasonably know,” means that a lawyer a reasonable prudence and competence would ascertain the matter in question (this kind of standard is very similar to a legal malpractice standard). With respect to persons with disabilities, that becomes incredibly complicated under this rule because lawyers should know something about the ADA as they have a nondelegable duty to know the ADA. So, you may need to have expert testimony as to what the ADA requires of them (serving in this capacity, as readers know, makes up a large part of my consulting practice).
  5. Determining whether a decision to exclude a juror is based upon a disability or some other factor might be very difficult to ascertain. In other words, what is causation under this rule? Is it solely by reason of (§504), or is it on the basis of/by reason of (ADA). The distinction makes a difference. ABA Formal Opinion 517 doesn’t say what the causation standard is.
  6. The opinion says that if the lawyer doesn’t personally intend to discriminate on the basis of a protected class but is advancing someone else’s intent, including AI, to do so, a duty of inquiry arises, which brings us back to causation…
  7. As the ABA Formal Opinion reads, for discipline to ensue, a fuller record than just the granting of a Batson challenge will have to be made.
  8. Tennessee v. Lane, here, is a must read for anyone dealing with a person with a disability as a prospective juror.
  9. I have not been called for jury duty for years. Some states have statutes allowing persons with disabilities to get out of jury duty. Georgia has such a statute but it is supposed to only work with the consent of the prospective juror with a disability, though I don’t know if that is the actual practice.
  10. There is case law out there saying that using AI to discriminate violates the ADA. See this blog entry. Both the EEOC and the DOJ during Pres. Biden’s term put out guidances on that. Those guidances, discussed here, which have since been rescinded, are still very helpful as a matter of preventive law.
  11. Batson is the criminal version; the civil version is this case.

I hope everybody had a great Fourth of July weekend.

 

Today’s blog entry deals with a couple of different questions. First, in a situation where a person can no longer do the essential functions of the job with or without reasonable accommodations, is reassignment mandatory or is it subject to open competition? Second, what kind of notice does the employer need in order to activate the reassignment process, assuming it is mandatory. The case of the day is Equal Employment Opportunity Commission v. William Beaumont Hospital, here, decided in the process of considering motions for summary judgment on July 2, 2025, by the United States District Court for the Eastern District of Michigan. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning concerning the sufficiency of the notice necessary to activate the mandatory reassignment process; whether reassignment for a person who can no longer do the essential functions of the job with or without reasonable accommodation is mandatory; and thoughts/takeaways. Of course, the reader is free to read any or all of the categories.

 

I

Facts

 

The facts are actually quite involved but can be condensed quite a bit. Megan Shefke (for ease of understanding, we will refer to her as plaintiff even though the EEOC is technically the plaintiff), has Fabry disease, a condition causing her body to make too little of an enzyme to keep a fattie substance-GL-3, from building up in her body and causing problems with her heart. As a result, she has pain in her hands and feet that varies with temperature and activity, extreme fatigue, and enlargement of the left ventricle of her heart caused by the buildup of GL-3. She also suffers from pain flares leaving her unable to work at all. The condition can only be treated and manage as it is progressive and worsens over time. Rest and recuperation are necessary for managing her symptoms. She does take medication that slows but does not reverse the progression of her disease. Things ultimately got to the point where she could no longer do the essential functions of the job with or without reasonable accommodations. She then inquired about the possibility of working elsewhere at the hospital. She used the terms in her email subject line “ADA accommodation,” or “Re: ADA accommodations.” She also specifically asked to be placed in an open position she was qualified for as she claimed that was a fair expectation under the ADA. Subsequently she applied to several other part-time nursing positions within the hospital system, but did not inform anyone in HR or in Talent Acquisition that she had applied for those positions. Subsequently, plaintiff resigned from her position in order to take a job with another company after she had been rejected from all the jobs she had applied to. Finally, for each position she applied to, the hiring manager was not made aware that plaintiff was seeking the position as an accommodation for her disability.

 

II

Court’s Reasoning Concerning the Sufficiency of the Notice Necessary to Activate the Mandatory Reassignment Process, Assuming Reassignment Is Mandatory in the First Place

 

  1. In order to show disability discrimination in the reassignment context, a plaintiff must show that she either requested and was denied, reassignment to a position for which she was otherwise qualified or that she requested some specific assistance in identifying jobs for which she could qualify.
  2. If an employee request assistance in identifying vacant positions-even if the request is as generic as “I want to keep working for you-do you have any suggestions?,“ then the employer has a duty under the ADA to ascertain whether the employer has some job that the employee might be able to fill.
  3. The employee is not required to use magic words such as “accommodation,” and “disability,” rather, the question is whether a factfinder could infer that the interaction constituted a request for an accommodation.
  4. In the event of § II(2), (3) of this blog entry, overcoming summary judgment means that the plaintiff generally must identify the specific job she seeks and demonstrate that she is qualified for that position.
  5. Once an employee requests an accommodation, the employer has a duty to engage in the interactive process.
  6. Once the employee establishes a prima facie showing that she proposed a reasonable accommodation, the employer had the burden of showing how the accommodation would cause an undue hardship.
  7. Failing to assist an employee in seeking an accommodation may suggest bad faith.
  8. Plenty of published Sixth Circuit authority indicates that the ADA generally imposes an obligation on the employer and not on the employee to identify vacant roles once a request for transfer as an accommodation is made.
  9. Sixth Circuit case law allows an employer to shift that responsibility to look at a broad range of jobs onto the employee if it has a legitimate, non-discriminatory administrative policy requiring an employee to apply for transfer to a new position within their restrictions. In that situation, an employer need not look into the suitability of jobs that the employee does not apply to.
  10. The proposition that an employer must search for applicable vacant positions upon an employee’s request for transfer comes from cases outside of the Sixth Circuit.
  11. If an employee generically requests only (emphasis in opinion), to be reassigned to a vacant position, then an employer can legitimately, in good faith and as part of the interactive process, ask the employee to put forward the first vacant position they wish to be considered for by using an internal job listing service in order to identify job that they believe they are qualified for. However, if an employee specifically requests help identifying (emphasis in opinion), vacant positions, then an employer must in good faith do at least some investigation into whether possible vacancies exist and propose those to the employee as part of the interactive process, even if they otherwise require applicants to go out and apply. Refusing to follow up on that request may constitute a breakdown of the interactive process for which the employer bears responsibility. It also creates an independent path to liability for a plaintiff that does not necessarily depend on what happened in regards to their request for a transfer more generally.
  12. If an employee specifically requests help in identifying vacant positions, the employer is obligated to take three steps: 1) identify the full range of alternative positions for which the individual satisfies the employer’s legitimate nondiscriminatory prerequisites; 2) determine whether the employee’s own knowledge, skills, and abilities enable the employee to perform the essential functions of any of those alternative positions with or without reasonable accommodation; and 3) consider transferring the employee to any of those other jobs, including those that would represent a demotion. The facts in this case are unclear as to whether the employer had the right to shift the responsibility onto the employee and a jury must decide that.
  13. While a plaintiff does have a burden as a matter of law to identify specific positions open at the time and that the employer could have transferred them to as an accommodation, that burden arises at the summary judgment (emphasis in opinion), stage, and does not necessarily translate to a strict requirement that a plaintiff identify them for the employer at the time of the request for accommodation (emphasis in opinion), itself (when that burden is merely part of the interactive process).
  14. A Sixth Circuit opinion stating that a plaintiff has the evidentiary burden of pointing to a specific vacant position for which she was qualified, which she actually requested, and which was not provided to her, is dicta because that particular fact was not actually at issue in that case. It is also not the facts of this case as the plaintiff did apply for positions she was qualified for and identified particular positions that she actually sought at summary judgment. She also did not necessarily have to bring her application to Beaumont’s attention when they told her that applying was the best way to notify them of her interest.

 

III

Court’s Discussion of Whether Reassignment for A Person Who Can No Longer Do The Essential Functions of The Job With Or Without Reasonable Accommodation Is Mandatory

 

  1. The courts are split on whether a reassignment is mandatory when a person can no longer do the essential functions of the job they are currently in with or without reasonable accommodations, but can do the essential functions of other jobs with or without reasonable accommodation within that company. The Seventh, 10th, and District of Columbia Circuits land on the side of mandatory reassignment. The Third Circuit in an opinion not directly on point has indicated that it leans that way in an opinion by then Judge Alito. On the other hand, the Fourth, Fifth, Eighth, and 11th Circuits go with the competitive bidding approach. The Sixth Circuit has not directly spoken on the issue.
  2. The trouble with the line of cases taking the competitive bidding approach is that they ignore the statutory text and render reassignment meaningless if all that an employer has to do is to allow the employee to apply to vacant roles never have to hire them.
  3. In a footnote, the court said that the duty to reassign does not extend to positions that are not vacant, that the applicant is not qualified for, or if it is not a reasonable accommodation or represents an undue hardship. Also, the employer has the authority to pick and choose which appropriate vacant job is to offer to the otherwise qualified employee with a disability.
  4. The ADA per 42 U.S.C. §12111(9), requires employers to make reasonable accommodations, which can include reassignment to a vacant position.
  5. While it is true that an employee’s application for transfer will necessarily conflict with the interest of other applicants for that same role, that conflict is only relevant if there is some pre-existing, pre-vested right of other employees at issue, which is not the case here.
  6. Mandatory reassignment is reasonable in the run of cases because it generally applies when reassignment is the only remaining option (emphasis in opinion), for an employee with a disability.
  7. Reasonable accommodation is a reasonable accommodation of last resort and is only required after it has been determined that: 1) there are no effective accommodations enabling the employee to perform the essential functions of their current position; or 2) all other reasonable accommodation impose an undue hardship.
  8. Preferences are sometimes necessary to achieve the ADA’s basic equal opportunity goal. If that was not the case, then the protection of the ADA would be a paper shield. That is, an employer could, for example, tell an employee to apply to transfer to vacant positions, and then decide for each position to go with another candidate. They would then be claiming that reassignment was an option in theory, but denying it in practice.
  9. In the same way that neutral office assignment rules might be required to occasionally yield to the covered employee requiring a ground-floor office, so too must generally neutral hiring considerations occasionally yield to a covered employee left with no option but to transfer into a vacant position accommodating their needs.
  10. It is not the court’s role to decide as a matter of policy whether providing preferential treatment in reassignment to vacant positions is unfair to other applicants in a narrow band of cases were reassignment has become the only available option available to a current employee as that choice is written into the ADA itself.
  11. In a footnote, the court notes that Congress did not reserve special status for healthcare industry when it comes to reasonable accommodation obligations.
  12. While on the face of things, the opportunity to apply on equal terms with other candidate may look non-discriminatory, it is not a reasonable accommodation (emphasis in opinion), for the covered employee by the ADA’s own terms.
  13. Beaumont Hospital was not required to assign the plaintiff to each and every one of the positions she applied for, instead they just had to pick one of them and they were free to choose whichever one they liked.
  14. In a footnote, the court noted that the evidence revealed that the hospital’s most qualified hiring policy was already subject to exceptions, so an ADA exception would be only another exception among several.
  15. Viewing the facts in a way most favorable to the plaintiff, the hospital’s most qualified hire system for transfer application resulted multiple times in the hiring of another external candidate over the plaintiff, who was an internal qualified transfer requesting a transfer as an accommodation. Assuming plaintiff can prove the remaining elements of her claim, that results in an ADA violation.
  16. Plaintiff’s eventual reassignment without the hospital’s help, months after they did not hire her for position she applied to and was qualified for, does not speak to whether the hospital fulfilled its duties under the ADA as to the positions she identified.
  17. The rest of the opinion goes into detail on each of the specific jobs that plaintiff applied to in light of the principles laid out in this blog entry. The end result of that analysis is the judge found numerous genuine issues of material fact existed and set the case for trial.
  18. Early in the opinion, the court says that the plaintiff was undoubtedly a person with a disability and also otherwise qualified for the positions she applied to and granted summary judgment to the EEOC on those points.

 

IV

Thoughts/Takeaways

 

  1. It will be very interesting to see how this case plays out on appeal when that point comes. My problem with the court’s reasoning is to activate the mandatory reassignment process under this opinion, it focuses on form over substance. That is, a person has to make a request explicitly requesting assistance in identifying jobs for which he could qualify as one of the ways to activate the mandatory reassignment process. However, as we have discussed numerous times, magic words are not required to activate the interactive process for getting reasonable accommodations. Even the district judge in this case, admitted that magic words are not required.
  2. Absolutely impossible to say which way the United States Supreme Court will land on with respect to mandatory reassignment. The Supreme Court will certainly consider the issue as the circuit courts are split on the question. For the reasons discussed in this section of the blog entry, it will not surprise me to see if the circuit courts also wind up splitting on the question of the sufficiency of notice needed to activate a mandatory reassignment process.
  3. Mandatory reassignment is not the harder issue (it is either required by the ADA or it isn’t), but rather the notice needed to activate the mandatory reassignment process is the more difficult one. I struggle to understand why magic words are not required for outside the mandatory reassignment process when it comes to reasonable accommodation for an employee with a disability, but they are, or at least something close to that, required with respect to activating the mandatory reassignment process, at least according to this decision. It will be interesting to see whether other circuits adopt the view that magic words are not required when it comes to asking for a reasonable accommodation except in the case of activating the mandatory reassignment process.
  4. If you are in the Southern District of Michigan and are an employee unable to do the essential functions of their job with or without reasonable accommodation, use the magic words of needing help identifying positions in order to activate the mandatory reassignment process. That is, magic words are not required except when they are.
  5. Preventive law demands employers to act on the principle that magic words not be required for seeking reasonable accommodations in general AND for seeking the reasonable accommodation of reassignment.
  6. Mandatory reassignment as a reasonable accommodation is a last resort.
  7. While a plaintiff does have the burden to identify specific positions open at the time and that the employer could have transferred them to as an accommodation, that burden arises at the summary judgment (emphasis in opinion), stage, and does not necessarily translate to a strict requirement that a plaintiff identify them for the employer at the time of the request for accommodation itself when that burden is merely part of the interactive process.
  8. Preventive law demands and employer work with the employee to find suitable positions they are a qualified person with a disability for, regardless of whether the employer’s particular circuit takes the mandatory reassignment approach or the competitive bidding approach.

Before getting started on the blog entry of the week, I want to wish everyone a happy Fourth of July holiday. Be safe and have fun.

 

Today’s blog entry is a published decision from the Fourth Circuit, Tarquinio v. Johns Hopkins University Applied Physics Lab decided on June 25, 2025, which can be found here, where the plaintiff with a disability loses, but there is some fantastic language in the opinion for persons with disabilities going forward. Other bloggers, such as Amy Epstein Gluck, have covered the case, but I thought I could add my own perspective. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that plaintiff did not pursue the interactive process properly; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

The facts are actually pretty straightforward and can be condensed quite a bit. Plaintiff has Lyme disease and worked for Johns Hopkins University Applied Physics Lab during the pandemic. As a federal contractor, Johns Hopkins had to make sure that everyone was vaccinated. Plaintiff was terrified that if she got vaccinated, the COVID antigens would cause her body to go crazy due to immune chaos. She submitted documentation to not have to take the vaccine. However, the documentation submitted was over nine years old. A subsequent back-and-forth ensued but she provided no current medical documents and no confirmation from her doctor. She also never consented to releasing her medical records. Plaintiff never gave the employer information that she had a condition contraindicated for receiving the COVID-19 vaccination according to CDC guidelines. In the end, plaintiff never got vaccinated and never got an exemption. Accordingly, the lab fired her. She sued alleging violations of the ADA.

 

II

Court’s Reasoning That Plaintiff Did Not Pursue The Interactive Process Properly

 

  1. To make out a failure to accommodate claim, a plaintiff has to show that: 1) she was disabled; 2) the employer had notice of her disability; 3) she could perform the essential functions of her position with a reasonable accommodation; and 4) the employer refused to make such an accommodation. #4 requires an employer’s good-faith participation in the interactive process.
  2. The interactive process is not an end in and of itself.
  3. It is doubtful that an employer has a complete defense whenever it can blame the employee for a breakdown in that process.
  4. The interactive process helps the employer discharge their duty to accommodate by giving employers and employees a chance to work together to figure out what accommodation, if any, is reasonable and not unduly burdensome.
  5. An employer who doesn’t engage in good faith with the interactive process violates the ADA so long as a reasonable accommodation is possible.
  6. An employer disrupting or sabotaging the process by which accommodations are determined is not providing its disabled employee with the equal opportunity the ADA mandates.
  7. The interactive process gives the employer a chance to confirm that it has the duty to accommodate to begin with.
  8. The ADA requires accommodating known limitations not known disabilities.
  9. If an employee has a disability causing limitations that interfere with work and the employer knows it, then the employer must try to accommodate. However, if any link in that logical chain is missing, no duty arises and no liability.
  10. The interactive process helps employers to make that threshold call. Employers do not need to take the employee’s word for it that the employee has a disability that may require “special accommodation,” (“special accommodation,” is the term that appears in the opinion).
  11. An employer has the right to confirm whether a need for an accommodation exists, which is why the implementing regulations specify that a goal of the interactive process is to identify the precise limitations resulting from the disability.
  12. To be liable for failure to accommodate, an employer must know that an employee’s disability limits her in a way that needs accommodating, which is the central purpose of the interactive process.
  13. Sometimes, the connection between disability, limitation, and need for the accommodation is obvious. For example, a blind employee would not have to furnish medical records in order to establish that he needed some accommodation to be able to review written reports.
  14. When the need for accommodation is clear, and a reasonable accommodation is evident, the onus is on the employer to act.
  15. The interactive process is a means, not an end.
  16. Neither the employer nor the employee can rest on a breakdown in the interactive process without connecting that breakdown to an element of failure to accommodate liability.
  17. If the employer sabotages the interactive process to avoid discharging a duty, then the employee can use that sabotage to show that the employer refused an accommodation.
  18. If the employee prevents the employer from understanding her disability, then the employer’s duty to accommodate never arises, and the employee’s claim fails.
  19. While plaintiff told the lab about her disability, she never showed the lab that she was limited in a way that required accommodation. For example, she never explained, beyond opaque references to “immune dysregulation,” why her disability made COVID-19 vaccination risky.
  20. It could well be a different story if plaintiff had allowed the lab to contact her medical providers. In that case, it is possible that those medical providers could have explained that plaintiff’s had an autoimmune disease so severe that, in their judgment, plaintiff was more likely to be harmed by the COVID-19 vaccine then by COVID itself. However, plaintiff refused to let that conversation happen.
  21. No reasonable jury could conclude that the lab knew enough to be on proper notice of plaintiff’s needs. Considering plaintiff’s unusual medical profile, the lab had the right to ask for more objective evidence.
  22. Since plaintiff prevented the lab from learning why her condition required the accommodation she asked for, plaintiff cannot show that the lab had a duty to accommodate.

 

III

Thoughts/Takeaways

 

  1. Plaintiff loses this one, but there is lots of great language in the opinion to benefit persons with disabilities going forward.
  2. The decision is published.
  3. The interactive process is not an end in and of itself.
  4. An employer does not have a complete defense whenever it can blame the breakdown on the interactive process on the employee.
  5. The employer does not have a right to ask for documentation for every reasonable accommodation request regardless of that person’s disability.
  6. The key for the employee is showing a connection between the disability, their limitation, and the need for the accommodation.
  7. The breakdown of the interactive process is not enough. In order for the breakdown of the interactive process to be effectively used, the breakdown have to be tied to an element of the failure to accommodate.
  8. If an employee prevents the employer from understanding her disability, then the employer’s duty to accommodate never arises.
  9. While an employer has a perfect right to understand the disability so that it can make an accommodation, an employer should not go on a fishing expedition for information. Keep any such requests narrowly focused on the particular facts of the situation.
  10. I have seen individuals with disabilities get very protective about disclosing their disability. I get that. However, being so protective can get in the way of getting needed accommodations/modifications.
  11. In the Fourth Circuit, a failure to accommodate is a separate cause of action.
  12. Under the ADA, a reasonable accommodation (Title I)/reasonable modification (Title II and III), is anything that does not constitute an undue hardship (Title I)/undue burden (Title II and III). The terms “reasonable accommodation,” and “reasonable modifications,” mean the same thing. The terms undue hardship and undue burden are also synonymous with each other.
  13. Regardless of ADA Title, the interactive process is always a good idea.
  14. Stay away from the term “special accommodation,” as the disability community can find that term quite insulting. There is nothing special about needing accommodations/modification per the ADA to get to the same starting line as a person without a disability.

On June 20, 2025, the Supreme Court decided Stanley, which we discussed here. There is no need to go into the facts as we have already covered that previously. Accordingly, the blog entry is divided into the categories of: Justice Gorsuch’s majority opinion; Justice Gorsuch’s plurality opinion discussing how Title I might apply; Justice Thomas concurring opinion; Justice Sotomayor concurring and dissenting opinion; Justice Jackson dissenting opinion; and thoughts/takeaways. The reader is free to focus on any or all of the categories.

 

I

Justice Gorsuch’s Majority Opinion

 

  1. For purposes of Supreme Court review, the Court assumed that the City’s revision to its retirement benefits plan constituted discrimination on the basis of disability.
  2. Under Title I of the ADA, 42 U.S.C. §12111(8), a qualified individual is a person who with or without reasonable accommodation, can perform the essential functions of the employment position that she holds or desires.
  3. In Title I of the ADA, Congress made it unlawful to discriminate against someone who can perform the essential functions of the job she holds or desires. That statement is in the present tense, so that means an individual who with or without reasonable accommodation, is able to do the job they hold or seek at the time they suffer discrimination. It also means that the statute suggests that it does not reach retirees who neither hold nor desire a job at the time of an alleged act of discrimination.
  4. In Title I of the ADA, reasonable accommodation refers to things like job restructuring, modifying existing facilities used by employees, and altering training materials or policies. All of those are kinds of accommodations that make perfect sense when it comes to current employees or applicants, but is hard to see how they could apply to retirees who do not hold or seek a job.
  5. 42 U.S.C. §12112(b) also has a similar message as it focuses on the present tense as well. It offers examples of what constitutes discrimination against a qualified individual on the basis of the disability. For example, subparagraph 6 says discrimination includes using certain qualification standards, employment tests or other selection criteria when they are job-related for the position in question. This provision clearly protects jobseekers, but doesn’t make any sense in the context of retirees not seeking employment. The same analysis apply to subparagraph 7, which requires that tests concerning employment accurately reflect the skills and aptitude of an employee or applicant. The pattern repeats itself throughout §12112(b) and underscores §12112(a)’s focus on current and prospective employees-not retirees.
  6. The retaliation provision of the ADA, 42 U.S.C. §12203(a), does not use present tense language. Instead, it prohibits retaliation against any individual opposing a discriminatory act. Since Congress used different language in the retaliation provision v. §12112, that strongly suggests Congress intended for them to work differently.
  7. Title VII of the Civil Rights Act also does not restrict itself to the present tense exclusively. If Congress wanted to follow that approach with the ADA, they could have done so.
  8. Cleveland v. Policy Management Systems Corporation, which we discussed here, also suggests that Title I of the ADA works in the present tense. In that case, the Court held that representations on an SSDI application may not automatically prevent someone from being a qualified person with a disability at a later time. That is, whether a person is a qualified person with a disability operates in the moment of discrimination.
  9. In a footnote, Justice Gorsuch remarked that the ADA no longer requires a plaintiff to show that she was a qualified individual with a disability at the time of the defendant’s discrimination as a result of the amendments.
  10. If Congress wanted to move away from a present tense orientation, they could have added the words “if any,” in Title I in its otherwise qualified individual definition section, but they did not.
  11. Moving away from a present tense orientation would render phrases in Title I of the ADA redundant, and that doesn’t make any sense.
  12. Title I of the ADA bars employers from discriminating against a qualified individual on the basis of disability in regards to compensation. In other words, the statute protects people and not benefits from discrimination. The statute also defines a qualified individual as a person who holds or seeks a job at the time of the defendant’s alleged discrimination.
  13. It is a mistake to assume that any interpretation of the law that does more to advance the statute’s putative goals must be the law.
  14. The Supreme Court has long recognized that the textual limitations of a law’s scope must be understood as no less a part of its purpose than any of its substantive authorizations.
  15. It cannot be said that Title I’s textual limitations, i.e. its focus on the present tense, necessarily clashes with the ADA’s broader purposes. For example, one Court of Appeals predicted that judicial innovations extending 42 U.S.C. §12112(a)’s protection to retirees could create perverse incentives to encourage employers to reduce retirement healthcare benefits for people with disabilities.
  16. It is up to Congress and not to the Supreme Court to decide whether it wants to extend Title I to reach retirees.
  17. Other laws exist that might attack this situation beside Title I of the ADA. For example, plaintiff’s complaint mentioned §504 of the Rehabilitation Act, Florida state law, and equal protection.
  18. It is still possible that Title I even with its focus on the present tense may reach many claims involving discrimination with respect to retirement benefits.

 

 

 

II

Justice Gorsuch’s Plurality Opinion Discussing How Title I Might Apply

 

  1. An unlawful discriminatory practice can take place in any of three points in time: 1) when a defendant adopts a discriminatory practice; 2) when an individual is affected by application of a discriminatory practice; or 3) when an individual becomes subject to such a practice.
  2. With respect to II(1)(1) of this blog entry, while it is true that the changes in the benefits occurred while Ms. Stanley was still employed, Ms. Stanley’s complaint provide no basis for inferring that the City’s policy change injured her at the time the policy was changed. Instead, her complaint suggests that when the City first issued its policy, she was not disabled and still expected to complete 25 years of service.
  3. If a person could plead and prove that they were both disabled and qualified when their employer adopted a discriminatory retirement benefits policy, the ADA could be available.
  4. In a footnote, Justice Gorsuch said that not every Title I plaintiff must plead and prove that they had a disability when they suffer discrimination. For example, Title I of the ADA defines discrimination on the basis of disability to include associational discrimination, i.e. discriminating against a qualified individual because of the known disability of an individual they have a relationship or association with. Unfortunately for Ms. Stanley, nothing in her complaint alleges anything along those lines either.
  5. With respect to II(1)(2) of this blog entry, Stanley had been retired for two years and could not satisfy the requirements of her job and was not seeking employment. While Stanley is out of luck, it is possible that others could show that they were affected by a policy change while they were qualified individuals even if they happen to be retired by the time they bring suit.
  6. With respect to II(1)(3) of this blog entry, Stanley’s complaint does not allege what her disability is or when it emerged. It is only from discovery on another issue that it appeared she was diagnosed with Parkinson’s disease in 2016.
  7. That she was diagnosed with Parkinson’s disease in 2016 is unhelpful to the analysis because the dispute comes to the Supreme Court on a motion to dismiss. While a court might with a little more facts in the complaint draw a plausible inference that Stanley suffered discrimination between 2016 and 2018, that didn’t appear in the complaint. For example, Stanley could have allege that she developed Parkinson’s disease before 2018, or that she worked for any period with some disability. If those allegations had been made, her case could likely proceed.
  8. Stanley in her brief at the appellate court did not claim she was impacted by the discriminatory City policy during her employment, which was what the United States argued before the Supreme Court. The 11th Circuit correctly declined to pass on that argument because Stanley had not presented it to the District Court and specifically disclaimed it in her own brief on appeal. Stanley also did not expressly asked the Supreme Court to address the 11th Circuit’s preservation rules nor did she ask the Supreme Court to reconsider its own general practice of allowing the Court of Appeals to determine for themselves what arguments they consider properly before them.
  9. In short, for a plaintiff to prevail under §12112(a), a plaintiff must plead and prove that they held or desired a job and to perform its essential functions at the time of the alleged act of disability-based discrimination. While a variety of suits involving retirement benefits might well proceed under that rule, this is not one of those cases in light of the way it came to the Supreme Court.

 

III

Justice Thomas Concurring Opinion

 

  1. Justice Thomas concurring opinion focuses on his frustration with the increasingly common practice of litigants urging the Supreme Court to hear a matter on one question and then after it decides to do that, shifting to an entirely different question. Accordingly, he doesn’t sign on to III of Justice Gorsuch’s opinion.

 

IV

Justice Sotomayor Concurring and Dissenting Opinion

 

  1. Justice Sotomayor concurs with the majority in that she believed Stanley forfeited the argument she may have been otherwise qualified at the time of the policy change. Otherwise, she agrees with Justice Jackson’s dissent except for Justice Jackson’s footnote 12.

 

V

Justice Jackson Dissenting Opinion

 

  1. Retirement benefits are essential building blocks of the American dream.
  2. Pure textualism makes a mess of what the ADA was intended to do.
  3. The ADA was designed as a comprehensive national mandate for the elimination of disability discrimination.
  4. The ADA protects against disability discrimination with respect to fringe benefits, employee compensation, and other terms, conditions, and privileges of employment.
  5. The Supreme Court should not have used Stanley to make any pronouncements about the viability of the Title I discrimination claim arising after an employee retires.
  6. The Supreme Court majority and plurality misreads Title I to introduce a time related limitation appearing nowhere in the ADA.
  7. In a footnote, Justice Jackson notes that the summary judgment record on Stanley’s non-ADA claim reflects that she was diagnosed with Parkinson’s disease in 2016.
  8. On the facts as alleged in Stanley’s complaint, the City subjected her to the discriminatory policy, not only after she retired. So, Stanley was performing the essential functions of her job at the pre-retirement point at which she became disabled and was subject to the new policy. As such, she was a qualified individual per the ADA.
  9. The complaint does say that Stanley had a disability and eventually had to retire because of it. As such, that is enough to draw a plausible inference that Stanley worked with the disability and was therefore subject to discriminatory policy sometime before retiring.
  10. Stanley never disavowed the argument that she was discriminated against while still working. Instead, all she said was that she did not claim she was impacted by the discriminatory City policy during her employment. Whether a person is impacted by a policy is a separate question from whether they were subject to it [discrimination].
  11. The allegation that the relevant discriminatory act took place while she was still on the job does pertain to the question the Supreme Court decided to hear in the first place. Also, the traditional rule is that once a federal claimant properly presents a question to the Supreme Court, a party can make any argument in support of that claim and is not limited to the precise arguments they made below.
  12. With respect to Stanley’s forfeiting her argument, an argument can be made that the Supreme Court deciding to hear the issue presented gets rid of the forfeiture issue.
  13. The majority and plurality decision create the discrepancy between real-life and legal decision-making matters in concrete and demonstrable ways.
  14. The Supreme Court instead of taking the approach it winds up taking in terms of the majority and plurality opinions should have just dismissed the case as being improvidently granted.
  15. Title I of the ADA says absolutely nothing about the preemployment or postemployment timing of an act of disability discrimination.
  16. Title I of the ADA does not categorically exclude former employees or retirees from its protections. It also does not explicitly carveout postemployment discrimination as not being actionable.
  17. Nothing in Title I actually says one must currently hold or desire a job in order to obtain protection from the forms of disability discrimination prohibited by Title I of the ADA. It also does not place a temporal limit on the reach of it protections. Instead, Title I grants broad protections for workers against disability discrimination with respect to job-related benefits. It also specifically prohibits disability discrimination by an organization providing fringe benefit to an employee of an entity subject to Title I of the ADA.
  18. It is perfectly permissible to read the qualified individual definition as setting a conditional mandate. That is, if a plaintiff relies on Title I regarding a job the plaintiff seeks to obtain or holds, then she must be able to perform the essential functions of that job. That doesn’t mean that definition applies across the entire board of Title I of the ADA. After all, conditional mandates appear all the time on a day-to-day basis. For example, a sign that reads “to live in this apartment building, you must be able to clean up after the pets you own,” does not mean that tenants have to own pets (in a footnote, Justice Jackson discusses other examples as well). So, the qualified individual section of the ADA can be read as to say nothing about the time the alleged discrimination must occur relative to one’s period of employment.
  19. A retiree seeking to remedy discrimination after the payout of benefits already earned on the job does not trigger the concern that motivated Congress to craft the qualified individual provision. That is, the function of the qualified individual provision of Title I of the ADA is to protect employers from having to hire and maintain employees who cannot do the work. That provision was not designed to serve as a temporal limit distinguishing the rights of those who are ready did the work and have now left the job and simply doesn’t make sense to say otherwise. Congress could have easily said that extinguishing the rights of those who are ready did the work and have now left the job from the ADA’s protection was something that it wanted to do but it did not say that.
  20. Under the majority’s logic, an employer cutting off an employee’s entitlement to retiree health benefits because of their disability one day before they retire subjects the employer to liability, but if they wait till one day after they retire they are off the hook under Title I of the ADA. This logic also leads to arbitrariness as well. The rule also makes no sense. After all, why would Congress hinge protection against discrimination with respect to benefits earned while working on whether the individual can perform a job in the future.
  21. Workers often decide whether to enter the workforce and when to leave based on the terms of such benefits. Protecting persons with disabilities rights to receive all that they earned during the working years free from disability discrimination in retirement, is essential to a faithful application of Congress’s handiwork with respect to the ADA.
  22. The Supreme Court has made clear that pension benefits qualify as terms, conditions, or privileges of employment even though they are received only after employment terminates.
  23. Retirement benefits are deferred compensation for past years of service already rendered.
  24. In a footnote, with Justice Sotomayor does not join, Justice Jackson talks about her philosophy about how laws should be interpreted. In short, she is not a fan of pure textualism.

 

VI

Thoughts/Takeaways

 

  1. Justice Gorsuch mentioned that the plaintiff in her complaint sought relief under other laws, namely: Florida state law; §504 of the Rehabilitation Act; and the equal protection clause. I am not licensed to practice in Florida, and so I cannot opine on the Florida claim. I can say that §504 is a nonstarter because it’s causation requirement is, “solely by reason of.” It seems to me that it would be extremely difficult to prove that the sole reason for the discrimination was based on disability. With respect to the equal protection claim, that also is a nonstarter because undoubtedly, per this case, here, persons with disabilities would be in the rational basis class with respect to a claim of retirement benefits being changed on the basis of disability.
  2. While §504 and the equal protection clause are nonstarter’s, there are two other laws and possibly a third that might indeed work notwithstanding majority and plurality decision in Stanley. Those laws are: 1) Title II of the ADA, which applies to everything that a nonfederal governmental entity does; 2) Title III of the ADA which applies to places of public accommodation found in 42 U.S.C. §12181(7) and extends to privileges and benefits. See this blog entry, for example; 3) if a private employer is involved, ERISA might be another possibility, but I will leave that to attorneys focusing on that law. The remedies of these three other possible laws are very different from the remedies in Title I of the ADA, so that may be a possibility as to why violation of Title II of the ADA was not alleged in the complaint. ERISA would of course not apply as a private employer was not involved. Title III of the ADA also would also not apply as a nonfederal governmental entity was involved
  3. Did discrimination based on disability actually occur in Stanley’s case? The Supreme Court specifically assumed that it did for the sake of argument, but we don’t actually know if that is really the case.
  4. Another question is what does this case mean for whether a leave of absence could be a reasonable accommodation. The courts are split on that. The Seventh Circuit says that a leave of absence is generally not a reasonable accommodation but other courts disagree so long at that leave of absence has a definite date of return. This decision just might lend support to the Seventh Circuit approach. Definitely worth following to see how this goes.
  5. Justice Jackson’s dissent is actually a policy driven opinion. Justice Sotomayor did not join her footnote 12 where Justice Jackson lays out her view on pure textualism. This reminded me of what Justice Kagan said upon the passing of Justice Scalia, “that we are all textualists now.”
  6. With respect to Justice Gorsuch’s footnotes regarding whether the ADA requires a person to be a qualified individual with a disability, certainly association discrimination is one such possibility. Another example, is the regarded as prong under the ADA, which only requires a person being regarded as having a physical or mental impairment in order to fall under that prong of having a disability. The ADA.
  7. When it comes to drafting ADA complaints, explicitly alleging more facts is always better than alleging fewer facts. Think of it as alleging enough facts so that any reasonable person would have to be on notice as to what transpired and what particular causes of actions are involved.
  8. It is not the first time we have seen litigant bring up the question for the Supreme Court that may not have matched what the Supreme Court decided to hear. See the Supreme Court’s decision in Sheehan, here, for one such example.

As everyone knows, I normally don’t blog more than once a week but there are exceptions. I had a bit of time this morning and this is a very short blog entry, so I decided to do a blog entry more than once this week. I am not at all sure about my schedule for next week, so it is possible my blog for next week may appear at any time during the week or even not at all.

The blog entry of the day is United States v. Skrmetti, here, decided by the United States Supreme Court on June 18, 2025. In a 6-3 decision, the Supreme Court held that Tennessee was justified as a matter of constitutional law in banning puberty blockers for minors as a treatment for gender dysphoria. The blog entry is divided into the categories of: 1) the opinions;  and 2) ADA implications and thoughts/takeaways. It is probably my shortest blog entry ever, so the reader will probably want to read the whole thing.

 

I

 

The Opinions

 

  1. The opinion for the Court was written by Chief Justice Roberts. His view is that the Tennessee laws banning puberty blockers do not classify on the basis of transgender status. Therefore, the rational basis equal protection classification applies. As a result, the Tennessee laws are constitutional.
  2. Justice Thomas concurred. His view is where the medical evidence is so contradictory, rational basis review is the way to go. A big part of this opinion and the other non-dissenting opinions, is that other countries, such as the United Kingdom and some Scandinavian countries, have taken a very different view from medical professionals in the United States when it comes to puberty blockers.
  3. Justice Barrett also concurred and was joined by Justice Thomas. Her view is that people who are transgender are subject to rational basis review when it comes to equal protection jurisprudence because gender identity is not a trait definitively ascertainable at moment of birth. Also, the onset of gender identity disorder varies and some individuals go back and forth as well as some return to the gender of their birth for their identity. Finally, gender identity does not involve a discrete group defined by an easily ascertainable characteristic that is fixed and consistent across the group.
  4. Justice Alito also concurred and said that the Tennessee laws classify on the basis of transgender status and not sex. Also, transgender status is subject to rational basis scrutiny. Finally, Bostock, which we discussed here, is not applicable to equal protection jurisprudence.
  5. Justice Sotomayor joined by Justice Jackson and Justice Kagan said that trans discrimination is sex discrimination, and therefore is subject to heightened scrutiny.
  6. Justice Kagan said that transgender discrimination is subject to heightened scrutiny. However, the case should be remanded to the lower courts for fact-finding to determine whether the heightened scrutiny standard was met.

 

II

ADA Implications and Thoughts/Takeaways

 

  1. We do know that the trans community has the ability to proceed under Title VII thanks to Bostock, which we discussed here.
  2. Justice Gorsuch, the author of Bostock, did not offer a separate opinion of any kind in this case.
  3. A majority of the Supreme Court clearly believe that transgender individuals are in the lowest equal protection class. That means as a practical matter, the government is free to take almost any action that may be adverse to members of the transgender community.
  4. I expect the trans community going forward to go all in on the ADA when it comes to combating discriminatory actions against members of that community.
  5. There is language in the non-dissenting opinions that could be read to suggest that the Supreme Court would uphold the exception in the ADA for gender identity disorders not being covered unless a physical impairment is involved (42 U.S.C. §12211(b)(1)). It is reasonable to expect lots of litigation in the future over this.
  6. Many cases, such as here, are now saying that gender identity disorder exclusion in the ADA is not the same thing as gender dysphoria, but the cases are not unanimous on that. It will be interesting to follow going forward just how this decision impacts the issue of whether gender identity disorder and gender dysphoria are the same for purposes of the ADA exclusion.
  7. For those focusing on the ADA as part of their practice, I would expect this decision to mean a lot more business.

This week’s blog entry discusses Justice Thomas with Justice Gorsuch joining concurring opinion in Ames v. Ohio Department of Youth Services, here. By now, you most likely know that the opinion for the Court written by Justice Jackson, holds that a higher standard of proof is not in order if you are from a group of people not traditionally considered a member of a majority group and are alleging discrimination. What I want to focus on is the concurring opinion that lays out the case as to why McDonnell Douglas burden shifting approach as a summary judgment tool doesn’t make any sense. So, the blog entry is divided into two categories and they are: Justice Thomas makes the case for why McDonnell Douglas as a summary judgment tool doesn’t make any sense; and thoughts takeaways.

 

I

Justice Thomas Makes the Case for Why McDonnell Douglas as a Tool for Deciding Summary Judgment Doesn’t Make Sense.

 

  1. The opinion for the Court in Ames assumes without deciding that the McDonnell Douglas framework is an appropriate tool for deciding whether to grant summary judgment.
  2. The judge made McDonnell Douglas framework has no basis in the text of Title VII.
  3. Lower courts extension of the doctrine into the summary judgment world has caused significant confusion and troubling outcomes on the ground.
  4. The framework is a judge made evidentiary tool originally developed for courts to use in a bench trial. Its intended purpose was to help bring the litigants and the court expeditiously and fairly to the ultimate question in a Title VII case-i.e. whether the defendant intentionally discriminated against the plaintiff.
  5. The McDonnell Douglas framework was made out of whole cloth and has no basis in Title VII or any other source of law. In fact, Justice Thomas referencing a case that we discussed here, said that the Court has never attempted to justify it on textual grounds.
  6. Although originally designed for the bench trial context, the McDonnell Douglas framework has over the years taken on a life of its own. It is today the presumptive means of resolving Title VII cases at summary judgment, which is a development that came without the Court ever considering-much less holding-that the framework is an appropriate test for summary judgment task in the first place.
  7. The Court has taken steps to limit the relevancy and applicability of the McDonnell Douglas framework to other contexts. For example, the Court has held: 1) the framework is not applicable when the plaintiff relies on direct evidence to prove the claim; 2) the framework is not applicable to mixed motive cases; 3) the framework is not applicable at the pleading stage and in deciding posttrial motions; 4) the framework’s first step does not need to be satisfied by a plaintiff at trial; and 5) the Court has strongly suggested that the framework should not be referenced in jury instructions because it is too confusing.
  8. Notwithstanding the Supreme Court’s steps to limit McDonnell Douglas, it is now the framework that courts typically apply to determine whether the plaintiff has put forward sufficient evidence to survive summary judgment. The reason for that is unclear as the Court has only once addressed the application of McDonnell Douglas to Title VII cases at summary judgment and held the framework did not apply.
  9. In a footnote, Justice Thomas said that the Court has assumed without deciding that the McDonnell Douglas framework applies at summary judgment outside of Title VII, but as far as he can tell, the Court has never had occasion to decide whether the framework is a useful or appropriate tool for evaluating any kind of claim at summary judgment.
  10. The framework is incompatible with the summary judgment standard for several reasons: 1) it does not encompass the various ways a plaintiff can prove his claim; 2) it requires courts to maintain artificial distinctions between direct and circumstantial evidence; and 3) it has created outsized judicial confusion.
  11. McDonnell Douglas framework does not track Federal Rules of Civil Procedure 56, which requires a court to grant summary judgment when the movant establishes that there is no genuine dispute as to any material fact and therefore, the movant is entitled to judgment as a matter of law.
  12. McDonnell Douglas does not speak in terms of a genuine dispute regarding the facts. Instead, it speaks in terms of proving facts by the preponderance of the evidence. That difference is significant because a plaintiff need not establish or prove any elements by a preponderance or otherwise in order to survive summary judgment. So, McDonnell Douglas requires a plaintiff to prove too much at summary judgment.
  13. If courts are to apply McDonnell Douglas at summary judgment, the framework should be modified to match the applicable legal standard. For example, the third step of the framework cannot involve proving by a preponderance of the evidence that the legitimate reasons offered by the defendant were a pretext for discrimination. Instead, if Rule 56 is to be applied properly, the plaintiff need only present sufficient evidence to create a genuine dispute as to whether the employer’s stated reason was pretextual.
  14. McDonnell Douglas framework fails to capture all the ways a plaintiff can prove a Title VII claim. For example, the explicit statutory provisions of Title VII allow for an unlawful employment practice to be established when the complaining party demonstrate that the race, color, religion, sex, or national origin was a motivating factor for any employment practice even though other factors also motivated that practice. That is, plaintiff can establish a violation of Title VII by proving that an employer took an employment action in part because of an unlawful motive. McDonnell Douglas takes a different approach by requiring a plaintiff to prove that the legitimate reasons offered by the defendant was not it’s true reasons but was a pretext for discrimination. That requirement goes beyond Title VII.
  15. Under Title VII, a plaintiff need not establish that the employer’s reason for its action was wholly pretextual. A plaintiff could prevail even if the employer’s stated reason what just part of the reason for the employer’s action. Therefore, a plaintiff’s inability to satisfy McDonnell Douglas’s third step of the framework does not necessarily mean that the plaintiff’s claim should fail. For example, the Court has held that the McDonnell Douglas framework should not be used in cases where the plaintiff argues that the employer operated with mixed motive.
  16. Even in single motive cases, McDonnell Douglas fails to capture all the ways a plaintiff could prevail. For example, a plaintiff who cannot establish a prima facie case at the first step or pretext at the third step, could still prevail under Title VII the long as his evidence raises a reasonable inference of unlawful discrimination. The ultimate question is simply whether the defendant intentionally discriminated against the plaintiff.
  17. Another problem with McDonnell Douglas it that it requires court to draw and maintain an artificial distinction between direct and circumstantial evidence.
  18. The Court’s holding that McDonnell Douglas is not applicable when a plaintiff presents direct evidence of discrimination, forces courts to make the often subtle and difficult distinction between direct and indirect or circumstantial evidence.
  19. In any lawsuit, the plaintiff may prove his case by direct or circumstantial evidence or some combination of that. The law makes no distinction regarding the weight or value assigned to either kind of evidence. The reason for treating circumstantial and direct evidence the same is that circumstantial evidence is not only sufficient, but may also be more certain, satisfying, and even more persuasive than direct evidence.
  20. The conventional rule of civil litigation that a plaintiff can proceed with either direct or circumstantial evidence applies with full force to Title VII cases. Yet, McDonnell Douglas requires courts to determine at the outset the nature of the evidence before it, which often only prolongs litigation instead of streamlining it.
  21. Since a Title VII plaintiff can prove his claim with either direct or circumstantial evidence, one has to be skeptical about a framework that requires court to perform the difficult task of characterizing each piece of evidence.
  22. McDonnell Douglas has befuddled courts since its origins and that is another reason to question it.
  23. Six years after the Court created the framework, the First Circuit observed that the subtleties of McDonnell Douglas are confusing and have caused considerable difficulty for judges at all levels. A decade later, Justice Kennedy made the same observation. Twenty years after that, another judge said that lower courts have struggled to implement the burden shifting framework for over thirty years. McDonnell Douglas has now been on the books for fifty years and the courts are still reporting continuing confusion. Those who have carefully dived into the framework for decades cannot make sense of it and that suggests the framework is unworkable.
  24. While McDonnell Douglas as a summary judgment tool was not before the court in this case, Justice Thomas and Justice Gorsuch would be willing to consider whether that framework should be used for summary judgment purposes when squarely presented with the question.
  25. Litigants and lower courts are free to proceed without the McDonnell Douglas framework. The Court has never required anyone to use it. District courts are well-equipped to resolve summary judgment motion without it. Every day-and in almost every situation outside of the Title VII context- district courts across the country resolve summary judgment motion by applying the straightforward provisions of Rule 56.

 

II

Thoughts/Takeaways

 

  1. McDonnell Douglas indeed multiplied everywhere. It is standard practice for McDonnell Douglas to be used throughout the ADA universe.
  2. Justice Thomas makes a strong case as to why McDonnell Douglas, especially by itself: 1) makes no sense as a summary judgment tool; 2) uses unsupportable distinctions between evidence; and 3) also goes beyond what is allowed by Rule 56 of the Federal Rules of Civil Procedure.
  3. I read an awful lot of case law, and McDonnell Douglas comes up frequently. Trying to figure out the distinction between direct and indirect evidence and what that means can be mind-boggling even for a reader involved with it all the time. The third step, pretext, can also be mind-numbing to deal with as well.
  4. So, what’s next? Justice Thomas said that litigants and lower courts are free to proceed without the McDonnell Douglas framework and the Court has never required anyone to use it. What this means is that any of three things will happen: 1) courts will adopt the Ortiz approach of the Seventh Circuit, which we discussed here; 2) courts will adopt the Tynes approach of the 11th Circuit, which we discussed here; or 3) the courts (as we are seeing in the district court’s within the Seventh Circuit), will allow litigants to use either the McDonnell Douglas framework or the Ortiz/Tynes approach (Ortiz and Tynes are very similar in their approach except that the Seventh Circuit refuses at the pain of it being reversible error, to use the term, “convincing mosaic”). I think it is fair to say with respect to any of these approaches just described, that you will see more plaintiffs surviving summary judgment motions.

Within the last week, the Supreme Court has come down with two decisions of relevance to our blog (Osseo Area Schools and Ames). Each is worth a separate blog. This week’s blog entry is going to be the Osseo Area Schools, which I previously blogged on its oral argument here. As usual, the blog entry is divided into categories and they are: Justice Roberts unanimous opinion for the Court; Justice Thomas with Justice Kavanagh joining, concurring opinion; Justice Sotomayor with Justice Jackson joining, concurring opinion; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Justice Roberts for the Court

 

  1. Outside of the context of elementary and secondary education, plaintiff can establish a statutory violation and obtain injunctive relief under the ADA and the Rehabilitation Act without proving intent to discriminate. However, to obtain compensatory damages, Courts of Appeals generally agree that a plaintiff must show intentional discrimination. In those situations, a showing of deliberate indifference is required. However, deliberate indifference does not require a showing of personal ill will or animosity towards the person with the disability.
  2. Nothing in the text of Title II of the ADA or §504 of the Rehabilitation Act suggests that claims arising in the education context should be subject to a distinct more demanding analysis.
  3. The substantive provisions of both Title II and §504 by their plain terms, apply to qualified individuals with disabilities, and there is no textual indication that the protections of either disability discrimination statute apply with lesser force to certain qualified individuals bringing certain kinds of claims.
  4. Both Title II and §504 make their remedies, procedures, and rights available to any person.
  5. 20 U.S.C. §1415(l) explicitly states that nothing in the IDEA shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the ADA, Title V of the Rehabilitation Act (including §504), or other federal laws protecting the rights of children with disabilities.
  6. Reading IDEA to implicitly limit the ability of children with disabilities to vindicate their independent ADA and Rehabilitation Act rights is irreconcilable with the unambiguous directive of §1415(l). It also conflicts with the Eighth Circuit’s own interpretation of its precedent.
  7. Both parties agreed at oral argument that different standards for educational situations v. noneducational situations made no sense.
  8. Reviewing whether there should be a “bad faith or gross misjudgment,” standard was never presented to the court and should not be considered without adversarial briefing.
  9. The challenges that students with disabilities have to face do not include having to satisfy a more stringent standard of proof than other plaintiffs to establish discrimination under Title II of the ADA or under §504 of the Rehabilitation Act.

 

II

Justice Thomas with Justice Kavanagh Joining, Concurring Opinion

 

  1. The school district argues that §504 unambiguously covers only intentional discrimination and nothing in §504 conveys congressional intent to impose liability on schools for unintentional discrimination.
  2. The commerce clause does not give Congress sweeping power to protect the learning environment in schools.
  3. The 14th amendment does not require schools to make special accommodations for the disabled. Rather, it prohibits only conduct lacking a rational basis.
  4. Title VI prohibits only intentional discrimination.
  5. The Supreme Court has held that private individuals can only recover compensatory damages under Title VI if they show intentional discrimination.
  6. There has to be skepticism about whether the same statutory language can mean two different things depending upon the relief sought.
  7. The school district has a point with respect to its constitutional objection when it argues that the Constitution compels a plaintiff to prove intent to discriminate before court can find a violation of Title II or §504 or award any kind of relief.
  8. Since constitutional compliance for spending clause legislation rests upon whether the recipient voluntarily and knowingly accept the term of the contract, the district’s argument that §504 unambiguously covers only intentional discrimination has something to it.

 

III

Justice Sotomayor with Justice Jackson Joining Concurring Opinion

 

  1. The text and history of both the ADA and §504 of the Rehabilitation Act foreclose any requirement that proving intentional discrimination is mandatory.
  2. Title II of the ADA provides that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of the public entity, or be subjected to discrimination by any such entity.
  3. The statutory language contains no reference to improper purpose. To the contrary, the phrase “by reason of,” requires no more than a causal link between the individual’s disability and their exclusion from participating in or receiving the benefits of a covered service, program, or activity. That is the ordinary meaning of the phrase, “by reason of.”
  4. Persons with disability can lose access to benefits and services “by reason of,” or “because of,” their disabilities absent any ambiguous animus or purpose, i.e. intentional discrimination. For example, stairs may prevent a person using a wheelchair from accessing a public space. Another example, the lack of auxiliary aids may prevent a deaf person from accessing medical treatment at a public hospital. Yet another example, braille-free ballots may preclude a blind person from voting. None of these situations involve any animus on the part of the city planner, hospital staff, or the ballot designer. Therefore, both the ADA and §504 reach cases involving a failure to accommodate, even where no ill will or animus toward people with disabilities is present.
  5. Both statutes impose an affirmative obligation on a covered entity to provide reasonable accommodations, which also undercuts any improper purpose requirement. Those affirmative obligations to reasonably accommodate persons with disabilities underscore that the statutes do not require improper purpose to prove liability.
  6. The use of the passive voice in both statutes only reinforces that conclusion. Congress use of the passive voice often indicates a focus on the event that occurs without respect to a specific actor, and therefore without respect to any actor’s purpose.
  7. The Supreme Court has previously recognized that when Congress enacted the Rehabilitation Act, it perceived discrimination against persons with disabilities as most often the product not of ambiguous animus but rather of thoughtlessness and indifference-of benign neglect.
  8. Much of the conduct that Congress sought to alter in passing the Rehabilitation Act would be difficult if not impossible to reach where the Rehabilitation Act were to be construed to prescribe only conduct fueled by a discriminatory intent. That observation applies with equal force to Title II of the ADA, which Congress modeled on §504 of the Rehabilitation Act.

 

IV

Thoughts/Takeaways

 

  1. In Justice Roberts’ opinion for the Court he states at the end:

 

“That our decision is narrow does not diminish its import for A. J. T. and “a great many children with disabilities and their parents.” Luna Perez v. Sturgis Public Schools, 598 U. S. 142, 146 (2023). Together they face daunting challenges on a daily basis. We hold today that those challenges do not include having to satisfy a more stringent standard of proof than other plaintiffs to establish discrimination under Title II of the ADA and Section 504 of the Rehabilitation Act.”

 

This is not the first time we have seen Justice Roberts use language indicating that he gets disability beyond a theoretical construct. It also makes you wonder how he would decide a case asking for a strict  intentional discrimination standard across the board of the ADA/§504 universe.

  1. After this case, the standard for getting compensatory damages for Title II or §504 claims is clearly deliberate indifference. What does that standard actually mean is unclear from the opinion for the Court. However, Justice Sotomayor cites with approval a case that we previously blogged on here. That case is already the leading case in the area of deliberate indifference with respect to Title II of the ADA and §504 and may become even more prominent now.
  2. Failure to accommodate situations often do not involve intentional discrimination at all as Justice Sotomayor ably lays out. For example, two instances happened to me yesterday when I was coming back from my trip. First, a flight attendant did not encourage a person sitting next to me to tap me to find out if I was interested in having a drink and a snack on the flight. Apparently, she did wave at me, but I did not see it. I previously had been on a flight where the flight attendant instantly realized that I may have a hearing loss and then asked a person next to me to tap me so as to get my attention. I made the mistake yesterday of assuming that every flight attendant would do that. In the future, I will notify the flight attendant when boarding that there may be an issue. The point of this incident is that there was no ill will intended in that moment but rather a failure to accommodate. Another example is, when I tried to leave the remote airport parking lot, the machine would not process my ticket. The cashier, two booths over, was wearing a mask and trying to explain to me what I had to do. I had to tell her that I could not understand her because she was wearing a mask (I am a lip reader), and that I was deaf. Eventually, she raised the level of her voice and also used hand motions so that I could figure out what I had to do. In both of these cases there was no intentional discrimination. The ADA certainly has other provisions in it reaching beyond the failure to accommodate scenario, but certainly with respect to failure to accommodate matters, intentional discrimination cannot possibly be something that would be required.
  3. One of the things going on with the different opinions in Osseo, is that it is possible there is some confusion about how different each of the titles of the ADA are from each other. They all deal with the same definition of disability and a reasonable accommodation/modification paradigm, but after that they can diverge quite a bit. Attorneys may need to educate the judges they are before as to the differences.
  4. We do know from this blog entry, that emotional distress damages are out for §504 claims. Open question whether they might be in for Title II claims, though the courts so far are consistently holding that emotional distress damages are not in play for Title II claims.
  5. Expect this case to have wide impact with respect on Title II and §504 litigation. However, you can find dozens and dozens of cases saying that to get damages under Title I of the ADA, intentional discrimination is required. In fact, good faith on the part of the employer is a defense to damages claims. See also §IV(4) of this blog entry.
  6. The term “special accommodation,” drive many of us in the disability rights space absolutely bonkers. There is nothing special so to speak about the accommodations we need. All that is needed is the reasonable accommodations that get us to the same starting line as a person without a disability. In short, for that reason and because the term is often used in a pejorative way, stay away from using the term “special,” or “special accommodation,” whenever possible.

Before getting started on the blog entry of the week, housekeeping matters. Next week I will be traveling most of the week, so do not expect a blog entry from me next workweek. Also, I just did an hour long interview with Claudine Wilkins, Esq., where we had a fantastic discussion about the federal and Georgia laws dealing with service animals and emotional support animals. I put it on my presentation page but am linking it here as well (I just found out, that the captioning could be much better. I have been informed that this will be fixed over the weekend (6/7-8), and then reposted).

Today’s blog entry is a short one and is a two-for-one. In the first case, the Eighth Circuit issued its en banc opinion in Huber v. Westar Foods, here. In the second case, we look at a United States District Court opinion from Oregon, Cusker v. Oregon Health Authority, here, talking about how ADA still applies even if the underlying issue involves something legal at the state level but not at the federal level. As usual, the blog entry is divided into categories and they are: key holdings in en banc decision in Huber; Cusker facts; Cusker’s reasoning denying the motion to dismiss; and thoughts/takeaways on Huber and Cusker. The blog entry is super short, so the reader will probably want to read the whole thing.

 

I

Key Holdings in En Banc Decision in Huber

 

  1. We previously discussed the panel decision here. A couple of big things from that panel decision were their holding that the honest belief rule gets narrowed if the plaintiff’s conduct is related to their disability. Another key holding was that adverse action was not much of a requirement.
  2. The en banc decision pulls back on the panel decision in important ways. In particular, the honest belief rule is as it is and is not narrowed by disability related conduct. Even the dissent doesn’t make that point, at least not explicitly. Also, adverse action doesn’t really come up.
  3. Misconduct can be grounds for termination even if related to disability. That holding by itself is not unusual. See this blog entry for example. However, things can get complicated if disability related conduct is involved. See this blog entry and this blog entry for example.
  4. Both the majority and the concurrence/dissent allowed the FMLA interference claim to go forward. Both the majority and the dissent seem to be thinking about ADA interference in the same way as FMLA interference. However, depending upon your jurisdiction that is not the case. See this blog entry for example.
  5. The concurrence/dissent implicitly moves away from McDonnell Douglas burden shifting being the end-all and be-all with respect to summary judgment. In many ways, the dissent reads along the lines of what might be called a “convincing mosaic,” train of thought when it comes to reviewing the record.
  6. Published decision and broke down 6-5.

 

II

Cusker Facts

 

Oregon allows the use of magic mushrooms (psilocybin, which is a a hallucinogen). The use of magic mushrooms is limited to service centers where a client purchases, consumes, and experiences the effects of magic mushrooms under the supervision of a service facilitator. Plaintiffs are licensed or trained service facilitators for magic mushrooms seeking to provide home-based services to the disabled and terminally ill clients unable to travel to the service centers. Their view was that prohibiting home-based care violated Title II the ADA.

 

III

Cusker’s Reasoning Denying the Motion to Dismiss

 

  1. The requested remedy rests on physical access rather than use or distribution of a controlled substance in violation of state and federal laws.
  2. Plaintiffs seek compliance with the ADA so that their clients with disabilities will have the same physical access to a service that is available to nondisabled individuals.
  3. There is no conflict between federal (Controlled Substances Act), and state law in this case because plaintiffs are challenging and seeking modification of a state law to provide what plaintiffs contend are a reasonable accommodation under the ADA.
  4. The case is about whether Oregon must make reasonable accommodation of home-based services necessary to allow individuals with disability to access services and not whether to authorize an expansion of Oregon’s limited legalization of magic mushrooms. Therefore, there is no conflict between the ADA and the Controlled Substances Act.

 

IV

 

Thoughts/takeaways on Huber and Cusker

 

  1. The Huber panel decision was an outlier in the discussion of how disability related conduct impacts the honest belief rule. The en banc decision pulls back from that. However, as referenced above, you do want to proceed carefully when disability related conduct is involved.
  2. The dissent between the lines, raises the issue of whether the McDonnell Douglas burden shifting system is appropriate for summary judgment at all. This is an issue that several Supreme Court justices have noted over the years as an area of concern for them. It has even come up recently at the Supreme Court in oral argument in some of the cases they have heard recently. There is a shift going on in the courts on this. For example, some courts, as we discussed here, adopt a convincing mosaic system. Other courts refuse to use that terminology but adopt a similar system. In courts in the Seventh Circuit, I have seen cases talking about the McDonnell Douglas burden shifting framework being one approach for dealing with summary judgment but another option being the case we discussed here (which is akin to convincing mosaic but the Seventh Circuit wants no part of that term). If a “convincing mosaic,” kind of approach winds up being the rule, that would leave room for disability related conduct to impact any honest belief considerations.
  3. Huber conflates FMLA interference with ADA interference. To my mind, they are very different things. See this blog entry for example.
  4. The Cusker opinion allows for the case to get beyond the motion to dismiss stage. Not addressed in the opinion is whether a fundamental alteration would be involved by allowing the home-based services. To my mind, that argument certainly exists. My go to case for fundamental alteration with respect to governmental programs is Easley v. Snider, 36 F.3d 297 (3rd Cir. 1994). The Olmstead decision (527 U.S. 58 (1999)), also contains a discussion of fundamental alteration as a defense for governmental entities having to modify their programs.

I hope everyone had a great Memorial Day weekend.

 

As I have mentioned previously, the last few years have found me increasingly involved in the area of working with counsel representing healthcare professionals who are being forced out of the profession because of their disability. Part of that process includes people being put into the professional recovery programs, often called PHP’s but they can go by other names as well. You can find my blog entry here talking about the potential ADA issues that are involved when a person gets referred into the recovery program, whether it be by an employer or some other way. It is not often that you actually see any of this get into the court system, but we now have such a case. The case of the week is Graziadel v. Capital Health System Inc., a published decision decided by the Appellate Division of the Superior Court of New Jersey on May 23, 2025, which can be found here. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that the trial court had subject matter jurisdiction over the disability discrimination claim; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

 

I

Facts (taken directly from the opinion and includes a footnote inserted into this section directly).

 

Plaintiff alleged that in 2000 she began employment with Capital Health as a nurse manager. In 2006, she “was promoted to a director-level position” and in 2008, she “was promoted to . . . Nursing Divisional Director of Maternal Child Health.” She alleged she was “a strong performer” and “received favorable performance evaluations.”

 

On the morning of September 24, 2018, while at work, “plaintiff was asked to submit to a breathalyzer test . . . [and h]er blood alcohol level was over the legal limit as a result of her consuming alcohol the night before.” “[P]laintiff was referred to defendant RAMP’s program.1 RAMP purport[ed] to provide recovery and monitoring programs on behalf of” the INI and the SNA. “As a result of RAMP and/or Capital Health’s internal policies, plaintiff was on a leave of absence from approximately September 25, 2018 until March of 2019.” During this period of time, “plaintiff was assured . . . that her job would be there for her when she returned.”

 

On October 5, 2018, plaintiff and “[t]he New Jersey Board of Nursing [(Board)] and/or [RAMP]” executed a private letter agreement (PLA). In part, the PLA provided that plaintiff agreed: [T]hat any deviation from the terms of this [PLA] without the prior written consent of the Board shall constitute a failure to comply with the terms of this agreement. Upon receipt of any reliable information indicating that you have violated any term of this agreement, your nursing license may be automatically suspended by the Board. You may, upon notice, request a hearing to contest the entry of such an order.

 

In November 2018, plaintiff was advised “that she could not go back to her management position and that it would be two to three years before she could go back to that job.” Thereafter, plaintiff was advised “that a management position would be ‘too stressful’ and that she needed to focus on recovery.” Plaintiff was told “that she would not be able to return to a management position for five years.”

 

Plaintiff “successfully underwent all of RAMP’s requirements during her leave of absence, including three Alcoholics Anonymous meetings per week as well as an initial period of ninety meetings in ninety days.” Plaintiff “pleaded with RAMP to allow her to return to her management position, stressing that she had successfully completed all of RAMP’s requirements[,] . . . had been in nurse management for over thirty years[,] . . . did not have any primary patient responsibilities[,] . . . [and] was primarily an administrator.”

 

In February 2019, RAMP advised Capital Health plaintiff “would not be returning to her management position.” Further, “[w]hen [plaintiff wa]s approved to return to work, RAMP staff w[ould] work with her to find an appropriate non-managerial position.” In April 2019, plaintiff wrote to RAMP and “implored [it] to allow her to be reinstated to her rightful management position.” In response, plaintiff was advised “that she would not be getting a managerial position for five years.” In April 2019, “plaintiff returned to work at Capital Health. She was given the job of Quality and Safety Department, Performance Improvement Analyst.” Her salary was approximately half of what she earned in her prior position.

 

Further, plaintiff alleged “[t]he refusals to cooperate . . . [were] in direct retaliation for plaintiff’s lawsuit . . . and w[ere] the by-product of continued discrimination and failure to accommodate.” In addition, plaintiff claimed RAMP, “with . . . knowledge of [her] . . . discrimination lawsuit,” discharged her from the program because “she had been allegedly non-compliant” and the “decision to discharge plaintiff from RAMP put[ her] license and career in severe jeopardy.” 2 She reiterated her LAD allegations and included a claim for retaliation.

 

In November 2019, plaintiff filed her complaint. She claimed she “suffer[ed] from alcoholism” and defendants violated the LAD by discriminating against her on that basis.

 

Prior to appealing the decision, plaintiff settled her case with Capital Health.

 

The lower court dismissed the claims for lack of subject matter jurisdiction and plaintiff appealed.

 

II

Court’s Reasoning That the Trial Court Had Subject Matter Jurisdiction over the Disability Discrimination Claims.

 

  1. The court cited to the preamble to the New Jersey Law Against Discrimination. In that preamble, several points are relevant, including: 1) practices of discrimination against any of the inhabitants in New Jersey because of disability are matters of concern to New Jersey; 2) such discrimination threatens not only the rights and proper privileges of the inhabitants of the State by menaces the institutions and foundations of a free democratic State; 3) legislature opposes discriminatory practices against any person by reason of disability in order to ensure economic prosperity and general welfare of the inhabitants of the State; 4) the harm people with disabilities face when they are the subject of discrimination includes: time loss; physical and emotional stress; illness; homelessness or other irreparable harm resulting from the strain of employment controversy; relocation, search and moving difficulties; anxiety caused by lack of information, uncertainty, and result in planning difficulties; career, education, family and social disruption; and adjustment problems; 5) damages available to all persons protected by the New Jersey Law Against Discrimination must be liberally construed in combination with other protections of New Jersey law.
  2. Alcoholism is a handicap under the New Jersey Law Against Discrimination.
  3. The New Jersey Law Against Discrimination prohibits the refusing to hire or employ or to bar or to discharge from employment such an individual or to discriminate against such an individual in compensation or in terms, conditions or privileges of employment because of disability.
  4. The New Jersey Law Against Discrimination also makes an unlawful employment practice to require employees or prospective employees to consent to a shortened statute of limitations or to waive any of the protection provided by the New Jersey Law Against Discrimination.
  5. The New Jersey Law Against Discrimination also forbids retaliation.
  6. A person complaining of discrimination under the New Jersey Law Against Discrimination can either file with the State a verified complaint in writing within 180 days after the alleged act or they could proceed directly to a lawsuit in New Jersey Superior Court. That is, a party complaining of discrimination in violation of the New Jersey Law Against Discrimination is not required to raise claims of discrimination or retaliation in any other proceeding.
  7. A lawsuit entitles the plaintiff to a: jury trial; all remedies available in common law tort actions, injunctive relief, and remedies provided in any other statute; and treble damages as well as backpay. The statute of limitations for such a lawsuit is two years.
  8. An employee who believes she has been the victim of retaliation is not required to raise those retaliation claims as a defense in disciplinary cases. Depriving an employee of that choice and mandating he or she asserts and litigates his or her retaliation claim in the disciplinary proceeding would severely curtail the employee’s rights under the New Jersey Law Against Discrimination as well as to the important benefits of a Superior Court forum (such as more expansive discovery; a trial by jury, and the full range of remedies available in civil action brought under those statutes).
  9. New Jersey Law Against Discrimination does not permit any waiver of the protection provided by the New Jersey Law Against Discrimination or to the forced consenting to a shortened statute of limitation.
  10. Any hearing before the disciplinary authorities would have been limited to whether the information received was materially false. Such a hearing would not have addressed plaintiff’s New Jersey Law Against Discrimination claims or replicated her right as recorded in the law division proceeding or allowed for the array of remedies available under the New Jersey Law Against Discrimination.
  11. Defendants arguments that plaintiff is impermissibly attacking an agency ruling simply does not fly for the following reasons: 1) plaintiff has the right to file her complaint in the law division in the first place; 2) there is nothing about plaintiff’s New Jersey Law Against Discrimination case with respect to her discrimination or retaliation claims that are peculiarly within the agency’s discretion, or requires agency expertise; 3) plaintiff is not seeking anything other than a determination regarding whether defendant discriminate or retaliated against her in violation of the New Jersey Law Against Discrimination. After all, defendant never considered these issues, and therefore there can be no inconsistency; and 4) plaintiff did not raise her New Jersey Law Against Discrimination claims with the defendant.

III

Thoughts/Takeaways

 

  1. I am not licensed in New Jersey.
  2. The case stands for the significant proposition that both employers AND PHP’s are subject to disability discrimination laws.
  3. The case is a published decision.
  4. This is not an ADA case at all. When it comes to the rights of people with disabilities, state laws can vary significantly. They often match the ADA but sometimes they go further. They can also vary in how disability is defined, what constitutes a disability, and the number of employees necessary before that state law will cover an employer. Not all states have disability discrimination laws. For example, Georgia’s law is extremely limited and is limited to state entities. Alabama to my knowledge (I am not licensed in Alabama), has no such law at all.
  5. Alcoholism is also a disability under the ADA as well, though the rules can be a bit different. We discussed alcoholism as a disability numerous times in our blog, such as here by way of example.
  6. Courts are not likely to take kindly to any document signed by an individual shortening the statutory statute of limitations.
  7. The State statutes are going to have various provisions with respect to whether exhaustion of remedies is required, so be sure to check your jurisdiction.
  8. The PHP’s programs are often termed “voluntary.” However, as the information in this case makes clear (the court provides that information in a footnote, but I inserted that information (October 15 paragraph), directly into the facts section of this blog entry), that is hardly the case because if a person does not comply, their license is at risk.
  9. The ADA is a nondelegable duty, as we discussed here.
  10. The ADA always requires an individualized analysis. See this case for example.
  11. For a more detailed analysis of the ways that PHP’s might discriminate against persons with disabilities, check out this blog entry.
  12. The decision raises an interesting issue by its discussion of when a collateral attack is impermissible, as it creates the question of whether a plaintiff should even try to resolve the disability discrimination claims internally before filing suit because a plaintiff does not want to appear to have waived their rights to proceed in court. One way to deal with that might be making it clear in the advocacy that it is the disability discrimination at issue and not anything else. You might even add explicit language that disability discrimination claims are not being waived by trying to fix the problem internally first. The issue of collateral attacks is something we have seen before, such as here.
  13. Despite how the opinion reads, New Jersey Law Against Discrimination no longer uses the term “handicap,” but some laws still do,  such as, for example, the Fair Housing Act.
  14. Check your jurisdiction as to how it interprets words associated with causation, as word use and interpretation of those words may vary from one jurisdiction to the other. A must read is this blog entry.
  15. This is an employment case. However, the cases I often see involve referrals to PHP’s outside of the employment context. Those situations are a lot more complicated because the statutory provisions and final regulations for Title I, II, and III can be very different from each other. It is certainly my view that as a provider of professional services, PHP’s are subject to Title III of the ADA under 42 U.S.C. §12181(7)(F)-i.e. service establishment.

Before getting started on the blog of the week, a housekeeping matter. I usually get my blogs up on Monday and sometimes Tuesday or even Wednesday. However, my daughter just finished her third year of college and is home for a short time before starting her summer gig. So, my schedule for the next couple of weeks will be a bit all over the place as will the day my blog goes up.

 

The blog entry of the day is Strife v. Aldine Independent School District (AISD), here, a published decision from the Fifth Circuit decided on May 16, 2025. It is a resounding win for people with disabilities from a circuit where you don’t often see that. There are lots of good things to discuss, including unreasonable delay in granting an accommodation, whether failure to accommodate claims require an additional adverse action, and a bunch of other stuff. As usual the blog entry is divided into categories, and they are: facts; court’s discussion of procedural history; court’s discussion of whether a delay in granting a reasonable accommodation may constitute an ADA violation; court’s reasoning affirming summary judgment as to the straight up disability discrimination claim; court’s reasoning affirming summary judgment as to the retaliation claim; court’s reasoning affirming summary judgment as to the interference claim; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

Plaintiff, or Strife, previously served in the U.S. Army and was deployed to Kuwait and Iraq in late 2003 in support of Operation Iraqi Freedom. During her service she sustained shoulder, leg, and brain injuries and was later diagnosed with PTSD. She was medically discharged in May 2005.

 

After discharge, plaintiff pursued a career in the classroom when she joined the Aldine Independent School District (AISD) as a fifth and sixth grade teacher. Her disability rendered her unable to continue teaching in the classroom and she switched to a testing coordinator position within the district in 2015. She excelled in that position and after six years was promoted to work in the human resources department in 2021. Unfortunately, her disability progressed and in 2017, the U.S. Department of Veterans Affairs (“VA”) classified her as: • 100% disabled from service-related PTSD and depression; • 20% disabled from a right knee sublaxation (partial dislocation); • 10% disabled from right knee joint disease; and • 10% disabled from a chronic left ankle sprain. Strife was unable to mitigate her disabilities with alternative treatments. She thus applied for and received a certified service dog nicknamed “Inde.” Inde assists Strife with her physical and psychological disabilities by helping her maintain her balance and gait, protecting her from falling, and mitigating acute PTSD symptoms.

 

On August 30, 2022, plaintiff submitted a request through the district’s human resources portal asking the school district to accommodate her disabilities by allowing her service dog to accompany her at work. At the meeting on September 16, the district’s employee accommodation committee determined that it needed additional information to determine what specific job functions are impacted by her disabilities and whether there were any alternative accommodations. Plaintiff provided a letter signed by her provider attesting to the need for a service animal. However, AISD deemed the documentation insufficient because the provider was not a board certified medical doctor. Plaintiff then provided a letter from her treating psychiatrist also attesting to the need for a service dog.

 

When her physician was asked what reasonable accommodations would enable plaintiff to overcome her functional limitations, he responded having the support of a service animal. However, that wasn’t good enough for the AISD. They then insisted on a medical examination by a physician working on behalf of the school district and then that individual reviewing additional information.

 

Plaintiff frustrated by the apparent stonewalling sought legal advice that culminated in the following exchanges in 2022 and 2023.

 

August 30 Strife submits her request for accommodation through the Broadspire portal.

 

November 11 The organization that issued Strife’s service dog certification informs AISD that its insistence on a medical exam constitutes “discrimination under the ADA.”

 

November 16 AISD asks Strife to clarify whether she is “refusing to continue the interactive process to determine whether you can perform the essential functions of [your] job with or without reasonable accommodation.”

 

November 18 Strife’s lawyer writes a letter outlining disability law violations. AISD’s counsel replies that the district is aware that Strife believes that “a service dog is the sole accommodation,” that AISD had the right to “engage in the interactive process to determine the appropriate accommodation,” and that the exam was needed to “determine additional accommodations.”

 

November 19 Strife’s lawyer asks AISD to provide information about “additional accommodations” that the district was contemplating.

 

December 5 AISD’s counsel responds that the doctor letters that Strife provided were unreliable (they lacked letterheads and had conflicting doctor titles, and Strife admitted that she wrote at least one letter herself), and an exam was needed to “determine what accommodations are reasonable and required.”

 

December 23 AISD schedules a medical exam for Strife.

 

January 6, 2023 Strife’s lawyer provides three letters, including correspondence from two other physicians, confirming limitations and urging that AISD approve the request.

 

 

On January 6, 2023, Strife filed a Charge of Discrimination with the Texas Workforce Commission and Equal Employment Opportunity Commission. She asserted that AISD discriminated against her on the basis of her disability by denying a reasonable accommodation and retaliating against her actions. Four days later, on January 10, Strife underwent a VA led examination that assessed her physical disabilities. Two doctors separately confirmed that (1) Strife suffered from impairments relating to standing, balance, and gait, and (2) Inde was required “in all settings (including place of employment) to avoid further balance-related injuries.”

 

Strife’s attorney transmitted these additional letters to AISD’s counsel. The district’s counsel replied that the VA’s evaluation was lacking because the evaluating doctor’s notes were not provided. Strife’s attorney provided the examination notes on January 13. AISD then claimed that the supplemental letters were insufficient because they failed to “provide any information regarding potential alternative accommodations.”

II

Court’s Discussion of Procedural History

 

On February 1, 2023, Strife filed suit in the Southern District of Texas alleging (1) failure to accommodate, (2) hostile work environment, (3) disability discrimination, (4) retaliation, and (5) interference, all in violation of the Americans with Disabilities Act (“ADA”), the Rehabilitation Act of 1973, and Texas disability laws.2 She sought a temporary restraining order and preliminary injunction against the district on February 6.

 

During the TRO hearing, held on February 15, the district court denied Strife’s TRO request, but directed the parties to complete the “interactive process” as soon as possible. Six days later, and in response to an email from an AISD attorney, Strife’s counsel confirmed “that a walker, cane, and/or wheelchair would not be an effective accommodation of Ms. Strife’s physical impairments, as they would be of no benefit if/when she falls.” The district granted Strife’s request for accommodation two days later.

 

Strife continued to press her claims, and eventually filed a Second Amended Complaint. AISD moved to dismiss Strife’s failure-to accommodate and hostile work environment claims on November 20, 2023, and (in the alternative) for summary judgment on all claims on January 29, 2024. On June 12, 2024, the district court granted AISD’s motion to dismiss Strife’s failure-to-accommodate and hostile work environment claims. It also granted AISD’s motion for summary judgment as to Strife’s disability-based discrimination and retaliation claims and her ADA interference claim. Strife timely appealed.

 

III

Court’s Discussion of Whether a Delay in Granting a Reasonable Accommodation May Constitute an ADA Violation

 

  1. Citing to a footnote in one of its prior cases, the court noted that in many employment cases, an employee continues working in the capacity arguably needing accommodation while the interactive process is ongoing. An employer that drags its feet in that situation forces the employee to work under sub optimal conditions, then could simply document the employee’s failures, and then could use the employee’s difficulties as an excuse to terminate the employee. An employer’s delaying of the process under those conditions might create liability.
  2. The ADA does not permit an employer to circumvent the ADA’s protections by forcing the aggrieved employee to endure an endless interactive process, though the ADA does not require an employer to move with maximum speed to complete that process and preempt any possible concerns. Instead, the employer can move at whatever pace it chooses so long as the ultimate problem-the employee’s performance of her duties-is not truly imminent.
  3. Plaintiff’s allegations do not merely concern a delay, but rather they suggest a lack of good faith from AISD to meaningfully evaluate her request in an appropriate and timely manner.
  4. The Fifth Circuit has previously stated, along with other circuits, that a delay in providing reasonable accommodations may show a lack of good faith in the interactive process.
  5. Plaintiff pled sufficient facts evidencing a lack of good faith on the part of AISD as she sought to use a service dog at work and did not require the district to handle the dog or for the district to modify her workplace whatsoever. Further, the district’s delay in granting that request undoubtedly forced her to work under sub optimal conditions for those six months.
  6. According to plaintiff, the district filibustered the request because it wanted her to undergo an independent medical exam. While such an exam is not inherently unreasonable per the EEOC’s enforcement guidance if the individual provides insufficient information, plaintiff claimed that she repeatedly provided AISD with the information confirming her disabilities and the need for an accommodation. Accordingly, a reasonable factfinder could find that the district’s insistence that she undergo an independent medical exam was unreasonable.
  7. Plaintiff also alleged that the school district failed to offer any reasonable accommodation for her disabilities and that her request was only granted after she initiated litigation and within weeks of a court scheduled injunction hearing. As a result, a reasonable factfinder could find that those additional allegations are reason to disbelieve the district’s claim that it needed to determine whether alternative accommodations were available.
  8. Reasonable modifications are not restricted to modifications enabling the performance of essential job functions.
  9. A failure to accommodate claim does not require proof of an adverse employment action.

 

II

Court’s Reasoning Affirming Summary Judgment as to the Straight up Disability Discrimination Claim

 

  1. AISD did not literally alter the terms, conditions, or privileges of her employment during the six-month interactive process.
  2. In a footnote, the court said that Muldrow as a title VII case was not applicable to the ADA. Even if it was, AISD made no change to plaintiff’s employment terms.
  3. Plaintiff did not suffer any physical injury during the six-month interactive process.
  4. The independent medical exam is not an injury because that examination never occurred as the school district withdrew its request and granted her request as soon as her attorney confirmed that alternative accommodations did not exist. Even if the examination occurred, there is no evidence to suggest that it would have affected the terms, conditions, or privileges of her employment with the school district.

 

III

Court’s Reasoning Affirming Summary Judgment as to the Retaliation Claim

 

  1. While the Fifth Circuit has not addressed whether a request for an independent medical exam constitutes an adverse employment action for a retaliation claim, requiring the individual to see the employer’s health professional could be considered retaliation if the employee has already provided sufficient documentation of their disability and accommodation needs.
  2. The record offers ample support for AISD’s assertion that despite plaintiff’s submissions, it still needed an independent medical exam the to complete its to complete its reviewewvi . While plaintiff did submit several different items of supporting documentation, none of those items addressed whether any alternative measures, such as a cane, wheelchair, or workplace modification, could alternatively address plaintiff’s disability. After all, the ADA provides a right to reasonable accommodation, not to the employee’s preferred accommodation. Accordingly, AISD had a legitimate and nondiscriminatory reason for insisting that plaintiff undergo an independent medical exam in order to determine whether any alternative accommodations existed. Indeed, once plaintiff’s attorney confirmed that no alternative accommodations were sufficient, the district dropped its request for an independent medical exam and approved the service dog in the workplace.

 

IV

Court’s Reasoning Affirming Summary Judgment as to the Interference Claim

 

  1. The Fifth Circuit has not yet articulated a test for evaluating ADA interference claims, which can be found at 42 U.S.C. §12203(b).
  2. Breaking the statute down, an interference claim has at least three requirements: 1) coercion, intimidation, threats, or interference toward an individual; 2) on the basis of that individual’s exercise or enjoyment, or having exercised or enjoyed, or aiding or encouraging others in exercising or enjoying; and 3) any right protected under the ADA. The Seventh Circuit, in a case we discussed here, added a fourth element requiring that the interfering employer must be motivated by an intent to discriminate. The Ninth and D.C. Circuits have said that the anti-interference provision cannot be so broad as to prohibit any action whatsoever that in any way hinders a member of a protected class.
  3. Plaintiff’s argument for interference at summary judgment was restricted to a single footnote saying that the retaliation claim was distinct but predicated on the same underlying facts, which is an insufficient statement to carry the day.
  4. Since the district had a valid nondiscriminatory reason for not immediately granting the requested accommodation, it would be difficult to construe the district’s continued engagement in the interactive process as interference in violation of the ADA.

 

V

Thoughts/Takeaways

 

  1. The court also affirmed summary judgment on plaintiff’s hostile work environment claim saying that the allegations of such conduct did not sufficiently rise to the level of something so pervasive or severe as to create an abusive working environment. Also, a disagreement with an employer over terms of employment or an accommodation does not amount to harassment.
  2. This case makes clear that it is perfectly permissible for an employer to insist on documentation when it gets a reasonable accommodation request. However, it is so important to use common sense as documentation requests cannot be excessive. It really helps if people involved in determining the scope of a documentation request have a disability themselves because people with disabilities can be incredibly sensitive to what might be excessive documentation.
  3. The EEOC has no guidance whatsoever when it comes to service animals in the worksite. They have gone after employers that have denied service animals. For guidance an excellent preventive law approach and guidance on what is a service animal, look at the DOJ Title II and Title III regulations on service animals. While DOJ final rules are excellent preventive law, that doesn’t mean they are dispositive in the employment context, which is governed by EEOC final regulations and not the DOJ.
  4. My experience has been that it isn’t always easy to find a plaintiff side lawyer prior to termination. This case illustrates why it can be so important to have such a lawyer prior to termination.
  5. Interesting that the court distinguishes Muldrow because Muldrow talks about terms, conditions, and privileges of employment. The Fifth Circuit in this opinion actually uses the term “sub-optimal conditions,” on more than one occasion and yet distinguishes the case anyway. This strongly suggests that an adverse action requirement remains for non-failure to accommodate cases. What is an adverse action after Muldrow is not entirely clear, except we know that it is not much.
  6. Failure to accommodate claims in the Fifth Circuit do not require an additional adverse action. As we discussed in this blog entry, such a conclusion is probably mandated by Muldrow.
  7. Unreasonable delay in granting an accommodation is not only actionable but evidences a lack of good faith. The latter point is important because the lack of good faith is what allows for damages.
  8. In a statement very important for owners of service animals, reasonable modifications are not restricted to modification that enables the performance of essential job functions. In other words, a service animal is a reasonable accommodation even if it is not explicitly doing anything specifically related to an essential job function.
  9. Interesting that the Fifth Circuit talks about how if the examination occurred, there is no evidence to suggest that it would have affected the terms, conditions, or privileges of her employment with the school district. The last few years of my practice have found me increasingly involved with working with licensing counsel with respect to healthcare professionals with disabilities being placed into the PHP system because of their disability. If that universe is any indication, it is quite conceivable that the exam would have affected the terms, condition, or privileges of her employment. Again, we don’t know for sure, but it is possible.
  10. A request for an independent medical exam can constitute a sufficient adverse employment action for retaliation claim if the employee has already provided sufficient documentation of the disability and accommodation needs. This particular reasoning of the court also has big implications for the world of healthcare professionals with disabilities vis-à-vis these referrals to any PHP programs by the health care professional’s employer.
  11. The court in this opinion lays out the elements for interference, including citing a case we previously discussed, here. However, the Fifth Circuit doesn’t actually define what interference is. For that, you want to take a look at this blog entry.
  12. Engagement in the interactive process is not the same thing as interference. The distinction between the two becomes rather obvious when you look at this previous blog entry of ours.
  13. Be careful about overly restricting what type of documentation is acceptable, such as always insisting on documentation from a board certified physician. The question is whether the person has knowledge of the individual requesting the disability and has the expertise to speak on what might be needed to reasonably accommodate that disability. Such an individual could have a variety of qualifications.