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For those into baseball, the last week of the season is going to be pretty wild with several wildcard teams trying to figure out positioning and some even trying to figure out if they are going to make the playoffs at all. Good luck to your teams. Also, I was honored to receive the Federal Bar Association Sarah T. Hughes Civil Rights Award over the weekend in Richmond, Virginia.  I have never given a speech before where I had to read my remarks. Fortunately, it went well. It was also great to attend the convention and meet everyone, including many that I consider good friends.

 

Turning to the blog entry for the week, it is a published decision of the Ninth Circuit decided on September 8, 2026. The case, Adom v. California Department of Corrections and Rehabilitation, here, which runs 134 pages, involves a lawsuit alleging that the prison did not provide medical care for a prisoner with a disability in accordance with its Title II obligations. What makes this case unusual, is the court’s in-depth analysis on why a Title II claim survives summary judgment. In an unpublished memorandum decision, the Ninth Circuit allows an Eighth Amendment claim, with a dissent, to go forward against one of the defendants. I am not going to focus on the memorandum decision, but rather just on the published decision discussing Title II of the ADA. For that matter, I am not going to focus on the dissent to the published opinion either, as I had real trouble following it. As usual, the blog entry is divided into categories, and they are: facts; why plaintiff is a qualified individual with a disability; why plaintiff was denied services by reason of his disability; why plaintiff’s damages claims can go forward; why the injunctive relief claim needs to be remanded for further consideration by the trial court; and thoughts/takeaways (there are lots of them). Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Adom has a spinal condition that causes him chronic, severe pain and significantly limits his mobility. He underwent spinal surgery in 2008 and has an active recommendation for a second surgery. He is also a stroke survivor. Adom uses a wheelchair to get around and wears a prison-issued vest that signals he is mobility impaired. Since 2020, Adom has suffered incontinence. He is unable to control his urinary evacuations, particularly at night, and sometimes also involuntarily evacuates stool. For nearly a year after Adom’s incontinence symptoms emerged, prison staff provided him with incontinence supplies, adult diapers, through CDCR’s Durable Medical Equipment and Medical Supply program. After Adom was transferred to a different housing unit, prison staff terminated his access to these supplies. Adom repeatedly requested restored access, but his requests were denied for nearly five months. The trial court granted summary judgment to the defendant and Adom (plaintiff), appealed to the Ninth Circuit.

 

II

 

Why Plaintiff Is a Qualified Individual with a Disability

 

  1. A qualified individual under Title II of the ADA is a person who with or without reasonable modifications meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.
  2. The services plaintiff seeks are available to those, like the plaintiff, who are incarcerated. Plaintiff is therefore qualified to receive all relevant services.
  3. Plaintiff is also a person with a disability as he has a spinal condition and incontinence, which are physical impairments. He also is substantially limited in the major life activities of bowel and bladder functions.
  4. After the amendments to the ADA, the question of whether an individual’s impairment is a disability under the ADA should not demand an extensive analysis.
  5. Plaintiff’s incontinence qualifies as a disability even though his doctor did not initially understand its medical basis or believe that diapers were medically necessary.
  6. Neither the statute, regulation, nor case law require a medical diagnosis or a doctor’s determination of a medical need in order for a condition to qualify as a disability under the ADA.
  7. The ADA does not require a one-to-one analysis of impairments and substantial limitations. That is, construing the meaning of disability broadly, multiple intersecting impairments may contribute to the same substantial limitations on a major life activity.
  8. The ADA entitles inmates to receive the benefits of an incarcerating institution’s programs and services without facing discrimination on account of a disability.
  9. California Department of Corrections and Rehabilitation provides services of toileting and hygiene, i.e. providing the means for inmate to urinate and defecate, as well with the means to keep themselves clean.
  10. California regulations demand that the California Department of Corrections and Rehabilitation must provide the means for all incarcerated person to keep themselves and their living quarters clean and to practice good health habits.
  11. The broad language of Title II brings within its scope anything a public entity does.
  12. California Department of Corrections and Rehabilitation has an affirmative obligation to provide the plaintiff with meaningful access to the benefits of its services.
  13. A reasonable jury could find that plaintiff was denied meaningful access to the benefit of the California Department of Corrections and Rehabilitation’s toileting and hygienic services because he needed the accommodation of adult diapers to enjoy those benefits on par with the rest of the prison population.
  14. When a person with disability can access a public entity’s services only by experiencing pain and humiliation, that access is likely not meaningful.
  15. For a person with disabilities, meaningful access to the benefits of toileting and hygiene services may require more than physical access to a toilet, sink, and shower.
  16. Title II instructs that the requisite access for a person with a disability may be achieved through reasonable modification to rules, policy, or practices or the provision of auxiliary aids and services. Since plaintiff urinates involuntarily, without notice, and often in the middle the night, structurally accessible facilities fall short of providing the plaintiff a dignified and hygienic way to manage his bodily functions. Accordingly, a jury could find that the California Department of Corrections and Rehabilitation alternative accommodation did not suffice to ensure plaintiff meaningful (emphasis in opinion),
  17. The California Department of Corrections and Rehabilitation treated the plaintiff the same (emphasis in opinion), as inmate without disabilities when the ADA required it to treat the plaintiff differently (emphasis in opinion).
  18. The purpose of the ADA’s reasonable accommodation requirement is to guard against the façade of equal treatment when particular accommodations are necessary to level the playing field.
  19. Plaintiff sufficiently alleged the general theory of his ADA claim (denial of services by reason of disability), and the nucleus of facts entitling him to relief (the denial of incontinence supplies and the ways in which that denial left him unable to cleanly and humanely relieve himself).

 

III

Why Plaintiff Was Denied Services by Reason of His Disability

 

  1. The phrase “by reason of such disability,” does only a modest work of requiring a connection between the alleged disability and the alleged denial of benefits.
  2. Plaintiff’s incontinence and spinal condition made it harder for him to enjoy the benefits of toileting and hygiene services without diapers. Therefore, a clear basis in fact exists for a jury to conclude that there is a connection (the legal term is “nexus,” which is the one the court uses), between plaintiff’s disabilities and a benefit that he was denied.

 

IV

Why Plaintiff Damages Claims Can Go Forward

 

  1. To establish deliberate indifference under the ADA, a plaintiff has to show that the public entity: 1) was on notice as to the need for accommodation; and 2) failed to adequately act on that notice.
  2. When a plaintiff has alerted the public entity to his need for an accommodation (or where the need for accommodation is obvious, or required by statute or regulation), the public entity is on notice that an accommodation is required, and the plaintiff has satisfied the first element of the deliberate indifference test.
  3. As to the requirement of failing to adequately act on the notice, an adequate response requires at a minimum, that the public entity undertake a fact specific investigation to determine what constitutes a reasonable accommodation. Such investigation must gather sufficient information from the individual with the disability and, where necessary, qualified experts, to understand the individual’s needs.
  4. An alternative accommodation is not an adequate response if it fails to provide meaningful access to the benefits of the service at issue.
  5. If a public entity denies a request for specific accommodation, it must demonstrate that it inquired as to the feasibility of the request and why it would be unreasonable or could not be accommodated.
  6. Providing one accommodation does not necessarily defeat the argument that the public entity was deliberately indifferent to the need for different accommodations.
  7. Deliberateness may be inferred when the public entity ignores or denies requested accommodations without sufficient inquiry.
  8. In a footnote, the court noted that deliberate indifference under Title II of the ADA is a different standard than the deliberate indifference standard under the Eighth Amendment.
  9. It is unlikely that an investigation is adequate when a public entity fails to gather new information before terminating a prior accommodation.
  10. California Department of Corrections and Rehabilitation abruptly terminated plaintiff’s order for weekly incontinence supplies, which he was previously receiving without issue. The abrupt termination could amount to a rejection of a plaintiff’s prior express request for accommodation and is an affirmative act from which a jury could infer deliberateness.
  11. California Department of Corrections and Rehabilitation only had access to the same medical records on which prior staff relied upon to conclude that plaintiff needed a permanent supplies order, and that no medical or custodial staff examined or interviewed the plaintiff to understand whether he no longer needed diapers. It is unlikely that an investigation is adequate when a public entity fails to gather new information before terminating a prior accommodation.
  12. A reasonable factfinder could conclude that the California Department of Corrections and Rehabilitation failed to conduct an adequate investigation before terminating the supplies order.
  13. A rational factfinder could also conclude that the California Department of Corrections and Rehabilitation acted with deliberate indifference when it ignored and summarily rejected plaintiff’s repeated pleas to reinstate his supplies order.
  14. A jury could conclude that the California Department of Corrections and Rehabilitation acted with deliberate indifference when it repeatedly rejected plaintiff’s requested accommodation without investigating whether it was reasonable and feasible.
  15. Viewing the facts in plaintiff’s favor, accommodations given by the California Department of Corrections and Rehabilitation did not provide the plaintiff with meaningful access to the benefits of its services. That is, half-solutions rather than granting the plaintiff the accommodation he requested that he had been previously provided could be found to be deliberate indifference.
  16. Disabilities within the meaning of the ADA are not limited to conditions with clear diagnoses or medical indications.
  17. The ADA creates a framework of disability and accommodation that is not directly linked to the medical system or limited to medical accommodation programs.
  18. A public entity may be obligated to provide a reasonable accommodation even when the accommodation has not been prescribed by a medical professional and even when state policy requires the prior identification of the medical condition before issuing supplies through a medical equipment program.
  19. It cannot be the case that an individual with a disability has no recourse under the ADA when he is left to live and sleep in his own waste, simply because the precise medical cause of his incontinence is elusive or because the existing accommodation programs are inadequate. Any other result would give an institutional actor that controls the relevant medical staff total control over the realization of the protections afforded by the ADA, which simply cannot be the case. Such an approach would undermine the Supreme Court’s holding, here, that Title II of the ADA applies with full force to State prisons.
  20. The denial of a disability accommodation is reviewable even when it is grounded in medical judgment, and decisions by doctors can evince deliberate indifference.
  21. The cases cited by the dissent do not stand for the proposition that medical judgments insulate public entities from ADA liability.
  22. Public entities are vicariously liable for the acts of their employees in violation of Title II of the ADA.

 

V

Why the Injunctive Relief Claim Needs to Be Remanded for Further Consideration by the Trial Court

 

  1. Plaintiff must demonstrate that at the beginning of the litigation, he had a reasonable fear that his access to incontinence supplies would again be abruptly terminated. That is, he must show there is at least a substantial risk that the harm will occur.
  2. An insufficient record exists to assess the likelihood of whether the harm will occur again.
  3. While the parties agree that plaintiff has been receiving incontinence supplies since the commencement of the litigation, it is not clear whether he has received those supplies pursuant to a formal order or by the mere good graces of the California Department of Corrections and Rehabilitation. The record doesn’t show when plaintiff’s last temporary order was set to expire, how temporary orders are set up to renew, or whether at the time of filing, there was a risk that the latest temporary order would expire before new temporary order could be approved.
  4. On remand, the district court should clarify the nature and duration of the accommodation order in place at the time the action was filed, whether there is a substantial risk that plaintiff will experience another abrupt termination of incontinence supplies when they are indicated by his status, and whether a permanent order or other injunctive relief would remedy that risk.

 

VI

Thoughts/Takeaways

 

  1. This case does an amazing job of drilling into the essence of the ADA and those thoughts can be applied on a preventive law level to many different contexts.
  2. I have seen cases of late talking about medical necessity for a reasonable accommodation. This case directly, correctly so in my opinion, contradicts those cases.
  3. A variety of impairments may operate together in order to form a substantial limitation on a major life activity.
  4. Title II covers anything a public entity does.
  5. Meaningful access is the standard for Title II cases, particularly when it comes to failure to make reasonable modifications.
  6. Experiencing pain and humiliation is not meaningful access if that is what is necessary to benefit from a public entity’s services.
  7. Structural accessibility may not be enough for certain disabilities, and is not a get out of jail free card for all disabilities.
  8. The ADA requires persons with disability to be treated differently and not the same as everyone else.
  9. The ADA reasonable accommodation requirements exist for the purpose of leveling the playing field (I have referred to this concept for over 25 years now, as getting the person with a disability to the same starting line as a person without a disability).
  10. Causation (“by reason of such disability”), is not a high requirement. That said, readers are also encouraged to check out this blog entry, here, discussing the Supreme Court’s Bostock decision.
  11. Deliberate indifference under the ADA has a different meaning despite the terminology being the same, from deliberate indifference in Eighth Amendment jurisprudence.
  12. Check out your jurisdiction as to how it deals with deliberate indifference under the ADA. While the leading case is the one we discussed here, not all jurisdiction go about it the same way.
  13. Magic words are not required to put an entity on notice that an accommodation is required. If the disability is obvious or required by statute or regulation, notice is presumed.
  14. An adequate response to a request for a reasonable modification, requires a public entity to undertake a fact specific investigation to determine what constitutes a reasonable accommodation. Preventive law would suggest an interactive process. Regardless, a thorough individualized analysis is most certainly required.
  15. Any accommodation must provide meaningful access to the benefits or service at issue.
  16. Where a public entity denies a request for an accommodation, then it is up to the public entity to show it inquired as to the feasibility of the request and why it was unreasonable or cannot be accommodated. Keep in mind, Title II of the ADA’s final implementing regulations, here, require the head of a public entity to certify that the reasonable accommodation request would lead to a fundamental alteration or an undue burden.
  17. An investigation is not adequate when the public entity failed to gather new information before terminating a prior accommodation. Employers would also do well to keep this statement of the court in mind. I have seen too many cases where an employee’s accommodation is terminated without gathering new information prior to the termination, particularly upon a change in supervisors. Definitely look for plaintiff employment lawyers to seize on this particular language of the opinion in cases where there was a termination of an existing accommodation without any inquiry into whether a change in circumstances warranted such a termination.
  18. A clear medical diagnosis is not necessary to establish a disability under the ADA.
  19. The ADA framework of disability and accommodation is not directly linked to the medical system.
  20. A public entity may be required to provide a reasonable accommodation even when the accommodation has not been prescribed by a medical professional and even when state policy requires prior identification of the medical condition before issuing supplies through a medical equipment program.
  21. The denial of a disability accommodation request is reviewable even when it is grounded in medical judgment.
  22. Jurisdictions are definitely split on the vicarious liability for the acts of public entity employees. In the Ninth Circuit, there is vicarious liability. Other circuits use a different standard. Also, in the 11th Circuit, an individual employed by a public entity can be individually liable for any retaliation per this case (I know of no other U.S. Court of Appeals that has remotely approached Shotz). Eventually, the Supreme Court is going to have to figure vicarious liability for public entities for the discriminatory actions of their employees.
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Before getting started on the blog entry of the day, congratulations to the Los Angeles Dodgers and the Milwaukee Brewers for clinching their division. I still have three teams in the hunt. Atlanta looks like they will win the division, but you never know. The Chicago Cubs and the Chicago White Sox are still fighting for a playoff spot or playoff positioning. Lots of teams in the American League still in the hunt for that final wildcard spot.

 

This week’s blog entry is a follow-up on the Fourth Circuit decision in  Billesdon v. Wells Fargo Securities, LLC, which we discussed here. The attorney for the plaintiff was nice enough to send me her petition for rehearing, and I thought it would make sense to go over the highlights of the petition. She also sent me the amicus brief from Disability Rights North Carolina and the National Disability Rights Network supporting the petition for rehearing as well. So, the blog entry is divided into highlights of plaintiff’s petition for panel rehearing and rehearing en banc; highlights of the amicus brief filed by Disability Rights North Carolina and the National Disability Rights Network; and my thoughts/takeaways. Below, are the key contentions made in those briefs. Of course, Wells Fargo is going to think differently. My thanks to plaintiff’s attorney Michelle Gessner for sending along the petition for rehearing and the amicus brief. Keep in mind, that I often, as is my practice, paraphrase what is said in the petition for rehearing en banc and in the amicus brief. Where I do that, I am not changing the substance about what was said. Also, as is my practice, the thoughts/takeaways section represents my own thoughts.

 

I

Highlights Of Plaintiff’s Petition for Panel Rehearing and Rehearing En Banc

 

  1. The panel opinion without authority declares that 42 U.S.C. §§12112(b)(5)(A), (B) are not interchangeable and present two separate pleading concerns. Such a view also makes no sense in light of the statutory structure. That structure indicates different elements for each claim, but it says nothing about how conduct fitting one of the sections becomes unavailable under the other. The EEOC regulations also do not create mutually exclusive pleading or evidentiary silos.
  2. The division between the two sections departs from the ordinary failure to accommodate framework. A §A claim does not require discriminatory motive. However, under the majority’s reasoning, what would be a motive-neutral refusal under §A becomes, if termination intervenes, a §B claim requiring proof that the employment decision was based on the need to accommodate. This results in the termination decision changing plaintiff’s substantive burden from proving a refusal to accommodate to proving why the defendant acted. Nothing in §§A, B or the regulation says termination has that effect.
  3. The A B division conflicts with the approach in another circuit, the Fifth Circuit, which permits termination during an ongoing accommodation process to support a motive-neutral failure to accommodate claim.
  4. Rule 8 of the Federal Rules of Civil Procedure requires fair notice and not statutory labels or magic words. In ¶ 45 of the complaint, plaintiff alleged that Wells Fargo terminated him in retaliation for his accommodation request and to avoid making Wells Fargo vulnerable to other employees citing to plaintiff’s case by stating that they too should have been accommodated. ¶ 51 of the complaint alleged termination due to his accommodation request and disability.
  5. At summary judgment and at trial, plaintiff argued both that Wells Fargo actually, constructively, and effectively denied plaintiff’s work from home accommodation, and Wells Fargo’s decision to terminate him rather than accommodate his disability.
  6. The jury was instructed to determine whether Wells Fargo refused or failed to provide a reasonable accommodation.
  7. Only on appeal, the majority of the panel developed the distinction between §§A & B.
  8. Rule 50(b) permits renewal only of grounds argued before the verdict, and it does not permit a new ground after the jury has returned its verdict.
  9. The panel’s reasoning imports retaliation timing principles into disability causation.
  10. The panel’s reasoning ignores the fact that continuing disability does not become causally stale over time just because the employer has known about it for years.
  11. A case, such as this one, could have both a situation where disclosure of disability, an accommodation request, and ensuing termination, supported disability discrimination simultaneously with the employer failing to participate in the interactive process. The evidence in this case permitted both findings.
  12. The jury was asked whether Wells Fargo terminated the plaintiff because of the disability and whether it terminated the plaintiff because of his accommodation request. The jury found both. The jury instructions contained no retaliation only evidentiary limitation.
  13. The §B claim was rejected in a footnote with no analysis.
  14. The §B claim was not properly preserved by Wells Fargo, and Wells Fargo had plenty of opportunities to make that argument before verdict but did not do so.
  15. The panel’s decision on the state law claims also must be reheard because the panel applied federal rules that North Carolina has not adopted even though Wells Fargo never made that argument in the first place. Nothing in North Carolina law allows for the §§A, B distinction.
  16. With respect to damages, the argument tracks Judge Berner’s opinion.

 

II

Highlights Of the Amicus Brief Filed By Disability Rights North Carolina and The National Disability Rights Network.

 

  1. The panel erroneously concluded that an employee’s long tenure with the company means the failure to accommodate for the termination of the longtime employee cannot be based on or motivated by a disability.
  2. The panel’s decision sets a harmful precedent and undermines the central purpose of the ADA in two ways: 1) imposes a bar to liability based upon the employer’s prior knowledge of disability and presumed lack of discriminatory intent so as to inappropriately narrow the protections of the ADA; 2) permits an employer to unilaterally close the interactive process without reaching any decision about a reasonable accommodation request thereby allowing employers to be excused from making reasonable accommodations.
  3. Where a work environment or the way a job is performed undergo changes and an adverse action against an employee results, then the employer’s prior notice of an employee’s disability should not preclude the employee from seeking a remedy under the ADA.
  4. Changing circumstances may lead to disability discrimination regardless of the employer’s prior knowledge of an individual’s disability.
  5. This case presents a situation where both the work environment and plaintiff’s condition changed over time.
  6. A jury could have reasonably concluded that plaintiff’s new management despite prior notice of the disability, targeted him for layoff and discriminated against him by terminating his employment after changes in circumstances. Nothing in the ADA prevents a jury from concluding as much.
  7. The panel’s opinion imposes an unworkable rule immunizing an employer from the claimant’s disability discrimination whenever the employer has prior knowledge of disability, regardless of changes affecting the job or workplace over time.
  8. The panel’s decision endorses the idea that employers are not liable for failure to accommodate where they avoid making decision regarding the accommodation request. Such a rule allows and encourages employers to evade their obligations to process reasonable accommodation requests and engage in a finite interactive process.
  9. Courts (the Amicus brief cites to a case we discussed here), have found that an unreasonable delay in granting a reasonable accommodation is actionable, which is a view supported by EEOC in its commentary on its regulations.
  10. A refusal to conclude the interactive process with a granting or denial of an accommodation leaves the employee with a great deal of uncertainty and no recourse until the ax drops so to speak.
  11. Without a formal accommodation, plaintiff was subject to uncertainty not faced by other employees, which is why he sought the formal accommodation.

 

III

Thoughts/Takeaways

 

  1. A quite possible reason for asking for a rehearing en banc was that the effect of the panel’s ruling resulted in the jury finding that the plaintiff was intentionally terminated for seeking accommodation surviving, but the legal damages awarded for that intentional misconduct not surviving.
  2. The petition for rehearing en banc, which will of course be viewed quite differently by Wells Fargo, does make the point that the §§A,B distinction is a novel one. I agree that the distinction is novel. Until this case, I have never seen it. It will be interesting to see whether other courts start going with this regardless of how the petition for rehearing en banc turns out.
  3. The amicus brief makes the point that this case could easily turn on the interactive process not being done by the employer, which is a point I made in the original blog entry’s thoughts/takeaways section.
  4. Putting substantive legal principles into footnotes, especially without authority, is certainly something that attorneys will grab onto in their advocacy. As mentioned in my original blog entry, I found the panel’s strategy of doing that in numerous instances a bit unusual.
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I hope everyone had a great Labor Day weekend. Baseball season is winding down and if you have teams in the hunt, good luck. I actually have three teams in the hunt: Atlanta Braves; Chicago Cubs; and the Chicago White Sox. Also, the NFL starts up this week, and good luck to your teams.

 

This week’s blog entry goes to the dogs quite literally. It discusses three different cases involving the legal universe of dogs and their owners. The three cases discuss the following questions: 1) is it discrimination to deny a person the ability to rent a unit because they told the landlord they will get a service animal in the future; 2) can a person have more than one service animal and do they get a little slack if the animals misbehave because they are a service animal; and 3) in Michigan, how do you figure out whether a dog acted without provocation for purposes of the dangerous dog statute. As usual, the blog entry is divided into categories and they are: Maine Human Rights Commission v. D&L Apartments facts; why the lower court did not err in determining that the defendant violated the sale or rental of housing and other prohibited practices contained in the Maine Human Rights Act; why the lower court did not err in determining that D & L Apartments violated the service animal provisions of the Maine Human Rights Act; Derrig facts; why the Florida Division Of Administrative Hearing judge allows the animals to stay; Chance facts; why the Michigan appellate court holds that Chance may not be a dangerous dog because he might have been provoked; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

Maine Human Rights Commission v. D&L Apartments, here.

 

I

Facts

 

Engstrom, a person with PTSD as a result of serving in Afghanistan, has his primary care physician mentioned to him that he should have a service dog to help alleviate his symptoms. He gets put on a waiting list for such a dog and then applies to various apartments. At one of those apartments, he notifies the landlord/owner that he will have a service animal in the future. The landlord says that is not going to happen because they do not allow pets of any kind, and then told him not to apply even after being told that the animal was a service animal and not a pet. Engstrom files with the Maine Human Rights Commission, and the commission brings a claim alleging discrimination based on disability under the Maine Human Rights Act

 

II

Why the Lower Court Did Not Err in Determining That the Defendant Violated the Sale or Rental of Housing and Other Prohibited Practices Contained in the Maine Human Rights Act (MHRA)

 

  1. 4581-A(1)(C) of the MHRA prohibits an owner, lessee, sublessee, managing agent or other person to make or cause to be made any statement relating to the rental or lease of the housing accommodation that indicate any preference, limitation or discrimination based upon physical or mental disability or an intention to make any such preference, limitation or discrimination.
  2. 4553(9-E) of the MHRA at the time the inquiry was made defined a service animal as either: 1) an animal necessary to mitigate the effects of a physical or mental disability; or 2) an animal trained to do work or perform tasks for the benefit of an individual with a physical or mental disability.
  3. Since the MHRA’s definition of service animal is limited to animals assisting individuals who have physical or mental disabilities, and the MHRA also unambiguously prohibits discrimination based on physical or mental disability in the sale or rental of a home, a landlord’s rule against service animals is a statement of preference, limitation, or discrimination based upon physical or mental disability in violation of the statute.
  4. The federal Fair Housing Act leads one to the same conclusion as its statutory language is virtually the same as the one contained in the MHRA. Under the FHA federal courts have held that no showing of subjective intent to discriminate is necessary in order to establish a violation.
  5. Courts interpreting the FHA have also concluded that the FHA is violated by a statement that discourages that potential applicant belonging to a particular protected group.
  6. Based upon the testimony of the person making the request for the service dog, the trial court did not err in determining that the landlord’s statement indicated to an ordinary listener a limitation on individuals with a disability requiring the use of assistance dogs.

 

III

Why the Lower Court Did Not Err In Determining That D & L Apartments Violated the Service Animal Provisions of the MHRA, §4582-A.

 

  1. 4582-A(3) defines unlawful housing discrimination in two ways: 1) refusal to permit the use of a service animal; and 2) discrimination against an individual with a physical or mental disability who uses a service animal as a housing accommodation. The two prongs are not the same. With respect to the first prong, that seemingly requires a present use of the service animal. However, proper grammatical interpretation of the statute indicates that a present use requirement is absent from the second prong. Accordingly, the second prong of the statute does apply to the use of a service animal in the future.
  2. In a footnote, the Maine Supreme Court noted that the overall structure of the MHRA suggested that the legislature intended to combat discrimination against prospective tenants, so a person need not be presently using a service animal in order to be protected.

 

Derrig v. Westminster Community Association, here. (Subscription required).

 

IV

Derrig Facts

 

Derrig (petitioner) has PTSD and trauma related issues as a result of his service as a police officer. Both dogs were given special training to help him cope with his mental disability. The first dog was actually given a lot of training by several K-9 officers from the Marco Island Police Department. As that dog got older, petitioner realized he needed a dog to come in and eventually do the job of the first dog. The second dog was trained by the petitioner using the same process and materials used to train the first dog. Petitioner also trained the second dog on how to open doors, which would enable the dog to reach him anywhere in the house should the petitioner become distressed. The dogs are trained to wake the petitioner up from nightmares and to stop him from feeling anxious. They do that by sitting on or near his feet. Unfortunately, while petitioner and his wife (also a petitioner), were away from the house the dogs got loose and ran after other members of the homeowners association. The people they ran after were not injured though, a member of the homeowners association said his wife’s hand was in one of the dogs mouth. It is unclear whether the dogs were attacking the other members or simply engaging in vigorous horseplay. It did not appear that they assaulted, bit, or pounced on either person or their dog. Derrig’s dogs eventually returned to the house on their own. Of course, this led to the homeowners association getting its lawyers involved and telling the petitioners to get rid of their dogs. The petitioner’s countered by claiming that the dogs were service animals necessary for Derrig to enjoy the housing.

 

V

Why the Florida Division of Administrative Hearing Judge Allows the Animals to Stay

 

  1. Derrig clearly has a disability as defined by the applicable statute.
  2. The dogs were clearly service animals as defined by the statute.
  3. Insufficient evidence exists that the dogs are a direct threat going forward, though the petitioner do have to take steps to ensure that that type of incident did not happen in the future, which the petitioners represented they had already done.
  4. Just because a dog is of a certain breed does not necessarily make the dog a direct threat. Here, no evidence existed that the two dogs harmed the other members of the homeowners association or their dog. Further, the two dogs returned to their home after the episode without further disturbance.
  5. Considering the age of the first dog, it makes perfect sense that a second service animal would also be required.
  6. The service animals are necessary for the petitioner to use and enjoy the dwelling.
  7. It is not a demanding standard for evaluating the qualifications and training of service dogs. That is, there are no requirements as to the amount or type of training a service animal has to undergo, nor the type of work or assistance that a service animal must provide, but the animal has to be trained to perform tasks or do work for the benefit of an individual with a disability.

 

In re Chance

 

VI

Chance facts

 

Chance an 80 pound American bulldog bit off a portion of his owner’s nose when she got within 6 inches of her face and threateningly had a shoe in her hand at the same time. Animal control gets called and chance gets labeled as a dangerous dog. The trial court agreed and the owner appealed.

 

VII

Why the Michigan Appellate Court Holds That Chance Is Not a Dangerous Dog Because He Was Provoked

 

  1. Michigan at MCL 321(d) actually defines provocation with respect to with dangerous dog statute. Provocation is defined as a willful act or omission that an ordinary and reasonable person would conclude is likely to precipitate the bite or attack by an ordinary dog or animal (emphasis in opinion). A dog that acts with provocation is not a dangerous animal.
  2. The term “ordinary and reasonable person,” denotes an objective standard as does the term, “ordinary dog.”
  3. The proper standard would have been for the trial court to determine whether a person getting down on the ground and putting their face less than 6 inches from the face of a large dog that had a chewable object, such as a shoe, next to the dog while simultaneously scolding the dog and possibly waving a shoe about the dog’s head constituted a willful act or omission that an ordinary reasonable person would conclude is likely to precipitate the bite or attack by an ordinary dog or animal.
  4. Since the proper standard was not used, the case has to be sent back down for factual determinations.
  5. It is a published decision.

 

VIII

Thoughts/Takeaways

 

  1. States generally have their own fair housing act laws. They often match up with the federal fair housing act law, but not always precisely.
  2. A landlord cannot deny a person the right to use a service animal if that person tells the landlord that they will be getting a service animal in the future.
  3. Reading between the lines, service animals may get a little bit more slack than a typical pet depending on just how much proof can be put forth regarding the service animal training and the work or tasks they actually do. That said, service animal do not get a get out of jail free card if they are a direct threat. What constitutes a direct threat is very fact specific and likely varies from judge to judge.
  4. States have various ways of dealing with whether an animal acts with provocation when it comes to dog bites or dangerous animal situations. Illinois for years and years has gone with the ordinary reasonable prudent dog standard. Michigan uses a two-step approach whereby the behavior of the human is looked at through an objective lens and then the behavior of the dog in response to that behavior of the human is also looked at through an objective lens. So, in Michigan it appears to be a two-step process. However, I am not licensed in Michigan.
  5. Whether a dog is a dangerous dog is a question of the individual dog and not the particular breed that it happens to be.
  6. It is not a demanding standard for evaluating the qualifications and training of service dogs. That is, there are no requirements as to the amount or type of training a service animal has to undergo, nor the type of work or assistance that a service animal must provide, but the animal has to be trained to perform tasks or do work for the benefit of an individual with a disability.
  7. The world of emotional support animals and service animals, especially in housing, is rapidly evolving. So, getting knowledgeable counsel involved is important. I am probably doing training on this at least once every six weeks. On October 22, I will be doing a webinar on this rapidly evolving world for the Kane County (Illinois) Bar Association. I also do specific bespoke training on this as well as on numerous other issues concerning the rights of people with disabilities as well.
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Before getting started on the blog entry of the week, I do want to recognize the passing of Dolly Parton. I grew up on her music. She will probably go down as one of the greatest songwriters of all time not to mention one of the greatest recording artists of all time, an actress (who can forget 9-5. For science-fiction fans, there was an incredible episode in the Orville where her songs were used as the basis for a feminist revolution on an alien planet), and a brilliant businesswoman as well. It has been fascinating to see over the last week just how much she impacted people across the entire political and musical spectrum. She will definitely be missed. I have many of her songs in my playlist on Spotify.

Turning to the blog entry for the week, the case is a published decision from the Fourth Circuit that came down on August 21, 2026, Billesdon v. Wells Fargo Securities, LLC, here. Many other labor and employment lawyers have blogged on this case, but I thought I could add my own perspective. As usual, blog entry is divided into categories, and they are: facts; why Wells Fargo is entitled to judgment as a matter of law on the failure to accommodate claim; why the ADA retaliation claim survives; why Wells Fargo is entitled to judgment as a matter of law on the ADA and the North Carolina disability discharge claims; Judge Berner’s concurrence and dissent; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

Plaintiff has a paralyzed bladder and colon. Everybody at Wells Fargo knew about it over the three decades he worked there. Nevertheless, he was extremely successful in his role. He was so successful that he rose from an intern to managing director and moved from the company’s headquarters in Charlotte, North Carolina, to start a new office in California and head West Coast sales. As his condition worsened, working in the office became problematic. Nevertheless, his supervisor was very flexible. When the pandemic hit, it greatly benefited the plaintiff as he could work right next to a restroom, never had to wait on an overloaded bathroom, or worry about having an accident at work. When the pandemic hit, plaintiff considered moving back to Charlotte where he could be closer to leadership and improve his promotion chances. However, the bathroom situation at Charlotte was not good. Nevertheless, his supervisor assured him that on days when he needed laxatives, he could work from home. Accordingly, he moved back to Charlotte and continued to excel. Unfortunately, the summer of 2021 saw weak financial markets, and Wells Fargo was asked to begin a reduction in force. Further, his longtime supervisor/manager left Wells Fargo and plaintiff began reporting to someone else, whom he did not have the same rapport with. During the pandemic the entire office was closed and everybody worked remotely. Plaintiff was concerned that when the pandemic subsided a bit and return to office mandate started appearing, that he would not be able to work from home. So, plaintiff put in a formal request for an accommodation. That request led to a series of actions on the part of Wells Fargo with the result plaintiff was terminated. He brought suit under both the ADA and the equivalent North Carolina state law and the matter went to trial. The jury awarded him $6 million in back pay, $14 million in front pay, $100,000 in emotional distress damages, 1 million in punitive damages under the ADA, and 1 million in punitive damages under North Carolina law. Plaintiff did accept the remittitur reducing the ADA punitive damages to $300,000 to comply with the statutory cap. Plaintiff’s ADA claims included both failure to accommodate and retaliation.

 

II

Why Wells Fargo Is Entitled to Judgment As a Matter of Law on the Failure to Accommodate Claims

  1. 42 U.S.C. §§12112(b)(5)(A),(B), are two very different things. Subparagraph (A), makes it discrimination to not make reasonable accommodations to the known physical or mental limitations of a qualified employee. On the other hand, subparagraph (B), makes it discrimination to deny employment opportunities to a qualified employee if such denial is based on the need to take reasonable accommodations. Plaintiff pleaded and tried his claim as a refusal to make reasonable accommodations under subparagraph (A). He never pleaded subparagraph (B).
  2. The court noted in a footnote, that the jury was never asked to find that Wells Fargo fired him to avoid accommodating him. For that matter, no jury instruction was sought on whether Wells Fargo decision to discharge the plaintiff was based upon the need to accommodate the plaintiff. In that same footnote, the court goes on to say that a judgment must rest on the theory jury was asked to find, and not on a theory reconstructed on appeal.
  3. Whether the employer failed to provide an accommodation falls under subparagraph (A), while whether the employer took an adverse action, like termination, in order to avoid a combination falls under subparagraph (B). The two theories are not the same.
  4. Since this is a subparagraph (A) case, the question is whether Wells Fargo withheld a reasonable accommodation while the plaintiff was employed.
  5. The accommodation requests was closed by Wells Fargo because everyone was receiving the accommodation that plaintiff needed.
  6. In another footnote, the court noted that an accommodation is not ineffective or not an accommodation at all just because it is available to other employees regardless of disability status. The fact that others receive the same accommodation has nothing to do with whether the accommodation works effectively for the individual in question.
  7. An accommodation that does not work is no accommodation at all.
  8. An accommodation that does work is an effective arrangement that modifies the work environment for the manner or circumstances under which the position is customarily performed in order to enable an employee to do a job.
  9. In another footnote, the court noted that evidence existed that senior managers met his formal accommodation request with hostility, rejected recommended trial periods, and concluded that the accommodation would only delay the inevitable. That evidence supports the retaliation verdict, but concern about an accommodation is not the same as a denial of one.
  10. The work from home accommodation that he had during the pandemic was effective in that he was able to perform his job from home. Plaintiff identified that arrangement, his position endorsed it, and plaintiff successfully carried out. While it is true, that there was no formal label that this was an accommodation and that he did not receive explicit approval for this request, the ADA focuses on the term “making,” and not on the term, “approving.” The label given to a situation does not change an effective workplace arrangement into an ineffective one or vice versa. By all accounts the accommodation he was given, even though everybody had the same accommodation, was effective.
  11. In another footnote, the court said that under the ADA the only question is whether the employer’s chosen accommodation is effective because not even a well-intentioned court may substitute its own judgment for the employer’s choice.
  12. In another footnote, the court notes that a disparate treatment or a retaliation claim requires an adverse action following from a protected status or a protected act. It does not require the plaintiff to show any accommodation was denied or even warranted. On the other hand, a failure to accommodate claim challenges the employer’s withholding of an accommodation and does not require an adverse action.

 

III

Why the ADA Retaliation Claim Survives

  1. The record contains substantial circumstantial evidence of retaliatory motivation. The timeline alone supports finding causation.
  2. The senior managers learned a plaintiff’s accommodation request in late October. By October-November, they decided to add the plaintiff to the plan reduction in force. By November 3, two of the senior managers had concluded that giving plaintiff an accommodation trial would only delay the inevitable. Preparation of formal discharge documentation followed in early December.
  3. The whole termination process was accelerated so that it occurred in approximately two months v. a typical lead time of at least five months.
  4. The senior managers actions and attitudes during the intervening period reinforced the causal connection of retaliation. In particular, plaintiff presented evidence that the managers treatment of plaintiff changed markedly after they learned about his request. For example, plaintiff was told that he would receive a stellar review for 2021 because of his fabulous sales numbers. Nevertheless, he received a downgrade in the evaluation and was largely iced out of conversations once he made his formal accommodation request.
  5. Senior managers also reacted to his formal accommodation request with skepticism and dismissiveness. In particular, they questioned whether the accommodation management consulting team was new to the company, expressed shock that the plaintiff sought a formal accommodation after obtaining informal arrangements, and pushed back on granting a trial period.
  6. Additional layoffs by Wells Fargo do not establish that plaintiff would have been discharged in the accelerated manner but for his formal request to work remotely as an accommodation.

IV

Why Wells Fargo Is Entitled to Judgment as a Matter of Law on the ADA and the North Carolina Disability-Discharge Claims

  1. Plaintiff’s disability discrimination claim requires him to prove the disability and not his protected action was a but for cause of his discharge.
  2. While an event can have multiple before causes per Bostock, discussed here, each must be independently supported.
  3. An employer who retaliates against an employee for engaging in protected activity and is not necessarily motivated by discriminatory animus.
  4. A discrimination claim demands evidence of motive based on the protected status, while retaliation claim demands evidence of motive based on the protected act.
  5. Everything changed after his formal request for an accommodation. That timing indicates that the termination was downstream of the protected act of asking for reasonable accommodation, and not the protected status of being a person with a disability. Such an approach is the essence of a retaliation claim and not a failure to accommodate claim, which is precisely why the retaliation claim survives.
  6. An employer can take adverse action against an employee who requests an accommodation solely based on the content of the request itself, without considering whether the employee is disabled. Such an action does not necessarily consider disability status, since any individual (even one who cannot ultimately prove that they satisfy the ADA’s definition of disability), can request an accommodation and be protected from retaliation.
  7. In a footnote, the court noted that the act of requesting a reasonable accommodation is broadly protected under the ADA and does not require a plaintiff to establish a disability existed under the ADA or that the request was reasonable, so long as the plaintiff made the request in good faith.
  8. After going through all this discussion, the court had to redo the remedies that plaintiff obtained. In particular: 1) the awards of punitive damages under North Carolina law and the ADA as well as the emotional distress damages were all vacated; 2) the backpay award was remitted to $4,225,558; 3) the front pay award of $14 million was affirmed; and 4) the interest award was vacated and remanded because the court did not apply the federal standard, which would have been the correct standard to apply.

 

V

Judge Berner’s Concurrence and Dissent

  1. Wells Fargo did not meet the high bar for reversing a jury’s verdict on the plaintiff’s federal and state law disability discrimination claims and the jury’s calculation of the backpay award.
  2. Judge Berner agrees that the failure to accommodate claim fails but not for the same reasons as the majority opinion.
  3. Considering the highly deferential standard to juries, a reasonable jury could have ruled in favor of the plaintiff on his disability claims and calculated $6 million as the amount of back pay owed.
  4. Plenty of evidence existed that plaintiff was terminated because of his disability. In particular, the jury heard evidence as to the following: 1) the reduction in force was highly irregular and the typical procedure was not followed; and 2) a mere two weeks elapsed from the initial decision to terminate the plaintiff to his termination. One Wells Fargo employee testified that they could not recall a single occasion with the decision to terminate an employee through a reduction in force was taken so quickly.
  5. Judge Berner in essence says that separating out intentional action from retaliation can be a far from clear exercise.
  6. The majority decision to use the figure it ultimately adopts as a remittitur doesn’t make a lot of sense. While counsel for the plaintiff referenced $4,225,558 as a backpay figure during closing argument was not evidence upon which a jury may rely.
  7. Everybody receiving the accommodation of working from home does not make it an accommodation for purposes of the ADA. Instead, that was simply a temporary policy for all Wells Fargo employees in response to the Covid-19 crisis. Wells Fargo never intended that such an arrangement would be permanent. Indeed, two weeks before plaintiff was terminated, they notified employees that it with their intent for them to return to the office.
  8. Plaintiff sought an accommodation to be permitted to work from home once all the other employees were inevitably ordered to return to the office. Wells Fargo never resolved that request, and did not make the requested accommodation. However, it did not deny the request either. Instead, it terminated the plaintiff before his request was resolved. Since plaintiff’s request for accommodation with neither actually nor constructively denied before he was terminated, the failure to accommodate claim cannot survive.
  9. The ADA prohibits an employer from terminating an employee to avoid making a reasonable accommodation. While the facts of the case certainly support such a finding, plaintiff did not plead subparagraph (B).

 

V

Thoughts/Takeaways

  1. In law school, they told us when we were briefing cases, that we had to read the footnotes. Lawyers are notorious for what are called speaking footnotes. Interestingly enough, other disciplines, such as medicine, flatly prohibit such speaking footnotes. In this particular case, I counted approximately half a dozen significant points made in the decision that all appeared in footnotes and not in the body of the case. Significant points made in the footnotes include: 1) for an accommodation to be reasonable, it must be an effective one; 2) a concern about an accommodation is not the same as the denial of an accommodation; 3) the only question is whether an employer’s chosen accommodation is effective; 4) the requesting of a reasonable accommodation is broadly protected under the ADA and does not require plaintiff to establish the disability existed under the ADA or that the request was even reasonable so long at the plaintiff made the request in good faith (of course, whether an actual accommodation has to be given depends upon whether a disability actually exists. Also, good faith is a bit complicated, as I have seen cases holding that an accommodation request is not in good faith if it is something that simply would never be granted under the ADA); 5) a failure to accommodate claim does not require an adverse action (courts are all over the place on this question, which is why I was surprised to see it stated like this and in a footnote no less); and 6) a jury has to decide the case based on what is pleaded in the complaint.
  2. An accommodation can be something that all employees can use.
  3. There is a difference in kind between a failure to accommodate cause of action (status) v. a retaliation cause of action (protected act).
  4. Causation is governed by Bostock, which we discussed here.
  5. This case is an excellent illustration of how persons with disability benefit from working from home.
  6. I can’t tell you how many times new supervisors get in the way of already working accommodations and that lead to litigation. Make sure supervisors get trained regularly on their ADA obligations by a person knowledgeable about the ADA.
  7. This case could have gone differently if the focus has been on a failure to engage in the interactive process. It certainly seems like the employer did not do that.
  8. I haven’t seen a case before that made a big deal between the distinction between subparagraphs (A) & (B) the way this case does. This line of thought bears watching going forward, especially since this decision is published. For cases following this line of thinking, be sure to be intentional in which subparagraph is pled.
  9. If you are not going to thoroughly read footnotes in a case that you are looking at, at the very least make sure you peruse them.
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This week’s blog entry deals with a published case from the 11th Circuit decided on August 5, 2026 raising interesting issues about when a Title II entity must provide reasonable modifications, in this case for a public school student. The case of the day is  L.E. v. Superintendent of Cobb County School District, here. As usual, the blog entry is divided into categories, and they are: facts; why the four students have standing; why the lack of an individualized inquiry doesn’t end the analysis; why the court holds an accommodation must be necessary in order to be reasonable; and this case is not what it seems/thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

All four students involved in the case have various disabilities making them particularly vulnerable to respiratory viruses, including Covid-19. In March 2020, Cobb County (Cobb County is located just north of Atlanta and also the home of the Atlanta Braves), shuttered all in person learning. It began phasing back in person operations about six months later. For the first pandemic year school year, Cobb County adopted measures consistent with the CDC guidelines, including masking, social distancing, frequent sanitizing of classrooms, and quarantines. In 2021-2022, Cobb County banned mask mandates (mask mandating was a big issue here in Georgia at that time), thereby leading the four students parents to pull their kids out of the respective schools and request Cobb County reinstitute the former Covid-19 restrictions. Those accommodations being denied by Cobb County, the students stayed home and attended class virtually during the 2021-2022 school year with only one of them returning to in person schooling in February 2022.

In the 2022-2023 school year two of the students returned to Cobb County schools in person. They asked that the schools require students and teachers in the classroom to wear masks, but the school district refused because mask mandates were against the new coronavirus policy. Those two students left Cobb County schools and enrolled in private schools instead. All four students allege that Cobb County’s actions caused them to lose hundreds of days of in person learning. In the fall of 2021, the four students while enrolled at Cobb County schools sued Cobb County for violating Title II of the ADA and §504 Rehabilitation Act for failure to accommodate their disability. The District Court denied the preliminary injunction based on its conclusion that the students were unlikely to prevail due to the case being moot, but the 11th Circuit reversed the mootness finding on appeal. When the District Court after remand denied the preliminary injunction motion again, it was appealed back to the 11th Circuit for a second time.

II

Why the Four Students Have Standing

  1. With respect to two of the students held not to have standing, the District Court ignored the students’ still live damages claims. Both the ADA and the Rehabilitation Act allow for damages to compensate persons with disability for harms resulting from past disability discrimination. Unlike injunctive relief, standing for damages requires only path harm and not future injury. So, disenrolling from Cobb County schools did not extinguish those two students claims for damages for past discrimination that they suffered while still attending Cobb County schools.
  2. The crucial moment for assessing standing is at the outset of litigation, i.e. the time at which a plaintiff’s complaint is filed. Later events do not divest the plaintiff of standing, even for injunctive relief.
  3. Post-filing events might bear on mootness but not on standing.
  4. A party’s standing to sue generally measured at the time of the complaint, with the effect of subsequent events generally analyzed under mootness principles.
  5. The fact that the two students had unrolled from Cobb County schools after filing suit is irrelevant to whether they have standing. What matters for standing purposes is they were enrolled in Cobb County schools when they filed suit. Therefore, they both have standing with respect to damages and the injunctive relief claims.
  6. All four students’ core allegation is that by banning masking mandates outright, Cobb County refused to consider the requested accommodations on an individualized basis.
  7. A person who has personally experienced disability discrimination has suffered a concrete injury.
  8. Even on appeal, the students assert that they continue to be denied meaningful access due to Cobb County’s prohibition on mask mandates.
  9. Therefore, the continuing denial of the students’ accommodation requests amounted to a threat of future injury sufficient to confer standing for injunctive relief.
  10. The harm asserted by the students is Cobb County’s refusal to consider their accommodation requests on an individualized basis, which they claim is required by the ADA and the Rehabilitation Act.
  11. Since the alleged discrimination was ongoing when the students sued for injunctive relief and continues to the present, there is nothing speculative about the alleged injury at the time of filing.
  12. After a case is filed, the doctrine of mootness comes in. However, that is of no help to Cobb County either because the students allege that Cobb County’s blanket ban ignored the recommendations of CDC and that they continue to disregard CDC guidance. Accordingly, a live controversy exists.
  13. The latest CDC guidelines, implemented in May 17, 2024, states that schools must provide reasonable modifications or reasonable accommodation, when necessary, to ensure equal access to in person learning for students with disabilities during increased infectious illness activity.

III

Why the Lack of an Individualized Inquiry Doesn’t End the Analysis

  1. Both Title II of the ADA and §504 of the Rehabilitation Act guarantee individuals with disabilities the opportunity to participate in, and access the benefits of public services, programs, and activities.
  2. A public entity’s failure to reasonably accommodate a person’s disability constitutes discrimination under both the ADA and the Rehabilitation Act.
  3. Citing to a Title III case, the court said that in order to prevail on a failure to accommodate claim, a plaintiff has to prove: 1) they are a person with a disability; 2) they requested a reasonable accommodation; 3) the requested accommodation was necessary to afford them an equal opportunity to use and enjoy the public facility or program; and 4) the defendant refused to make the requested accommodation.
  4. If the plaintiff shows that their request is facially reasonable, the burden shifts to the defendant, to prove that the accommodation imposes an undue burden or would result in a fundamental alteration of its programs.
  5. While the lack of an individualized inquiry is certainly relevant, it isn’t an automatic pass to winning a failure to accommodate suit.
  6. In  P.G.A. Tour v. Martin, the Supreme Court held that in order to comply with the ADA’s reasonable modification command, an individualized inquiry must be made to determine whether a specific modification for a particular person’s disability is both reasonable under the circumstances as well as necessary for that person, while simultaneously not being a fundamental alteration.
  7. In Martin, both parties agreed that the golf cart was both facially reasonable and necessary for Martin to participate in the golf tournament.

 

IV

Why the Court Holds an Accommodation Must Be Necessary to Be Reasonable

  1. While a plaintiff challenging a blanket ban on certain accommodations, such as masking, does satisfy the necessity prong of showing that a person requested a reasonable accommodation, that does not mean the plaintiff automatically prevails on her entire failure to accommodate claim.
  2. Title II’s other requirements, including necessity, do not evaporate in the case of a blanket ban. That is, a plaintiff must satisfy those elements all the same.
  3. In order to show a likelihood of success on the merits and obtain a preliminary injunction, the four students needed to show that mandatory masking was necessary.
  4. Succeeding on the element of whether mandatory masking is necessary means showing (court cites to a Title III case): 1) the accommodation alleviates the effects of their disability; and 2) the accommodation is necessary to ensure that individuals with disabilities receive the same opportunities as other individuals.
  5. The ADA and the Rehabilitation Act require only those accommodations without which individuals with disabilities do not receive the same opportunities as other individuals.
  6. The school district did make accommodations that have largely been effective and therefore two of the four students are unlikely to win on the merits.
  7. Regarding necessity, the 11th Circuit has said (again, in a Title III case), that the opportunity to have something analogous to or similar to the experience of guests without disabilities was required but granting the preferred accommodation of the person asking for accommodation was not required.
  8. The District Court considered that the tailored accommodations Cobb County has already provided to two of the four students has by and large been effective thereby allowing them to attend in person schooling as often as their health allows.
  9. In the end, the 11th Circuit winds up concluding that two of the four students should not have been dismissed on standing grounds and so the lower court should address the merits of those claims. However, the other two students lose their preliminary injunction requests on necessity grounds.

V

This Case Is Not What It Seems and Thoughts/Takeaways

  1. The first question is where is this necessity requirement coming from? The statutory provisions for Title II of the ADA do not contain any necessity requirement at all. The cases cited by the 11th Circuit all involve places of public accommodations, which are governed by Title III of the ADA. Places of public accommodations do have a necessity requirement in them when it comes to reasonable accommodations. See, 42 U.S.C. §12182(b)(2)(A)(ii), here. For that matter, Title I of the ADA has no such necessity requirement either.
  2. Necessity does appear in the final regulations implementing Title II of the ADA (28 C.F.R. §35.130(b)(7)(i)), but the meaning of that clause is phrased very differently from the statutory and regulatory text of Title III. In particular, reviewing that particular regulatory provision one can argue that the second clause of that provision depends on the first. That is, a modification is necessary if there is not an undue burden or a fundamental alteration. Such a reading of the final implementing regulations would be consistent with how reasonable accommodations is defined under Title I of the ADA.
  3. P.G.A. Tour v. Martin was a Title III case. So, it made perfect sense considering the statutory provisions of Title III for the court to discuss necessity. However, this case is a Title II case. That said, Martin most certainly stands for the proposition that regardless of the title of the ADA involved, an individualized inquiry is necessary when deciding reasonable accommodations/modifications.
  4. The 11th Circuit’s reading of necessary appears to put the burden of proof on the plaintiff. However, if a reasonable modification is whatever does not constitute an undue burden or a fundamental alteration, one wonders if that isn’t backwards. That is, analogizing to Title I cases, if the plaintiff makes a facially reasonable request for an accommodation regardless of any necessity showing, the burden should shift to the defendant to argue that an undue hardship (in this case, undue burden/fundamental alteration), is involved.
  5. In order to succeed on the necessary requirement, the court says the accommodation needs to alleviate the effects of the disability. I don’t even understand how that is possible when it comes to dealing with disabilities. Accommodations/modifications should get the person with a disability to the same starting line as a person without a disability, but that is an entirely different question from alleviating the effects of a disability, which is extremely difficult to do.
  6. The court says that Cobb County’s accommodations have been largely effective. Does that mean the court is saying that any reasonable modification must be an effective one? I have seen a Title I case I am seriously considering blogging on for next week, make that exact statement.
  7. Loper Bright, which we discussed here, is another factor to consider. An argument can be made that in the absence of explicit statutory text in Title II of the ADA with respect to any necessity requirement, a necessity requirement in the final implementing regulations (if that is indeed what it is), goes too far and should not be given controlling weight by a court per Loper Bright.
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Before getting started on the blog entry for the week, a housekeeping matter in order. Next week, I move my daughter in for her final year of college. So, it is entirely possible that I will not have a blog entry next week. I will definitely be back blogging the week after.

 

Turning to the case of the week, it is a case currently pending before the Second Circuit, Lakrout v. New York State Unified Court System. This blog entry will discuss the district court decision, here. It will then also the amicus brief filed in the Second Circuit by the American Civil Liberties Union, New York Civil Liberties Union, Disability Rights Education and Defense fund, Disability Rights New York, and the National Disability Rights Network, here. The case currently pending before the Second Circuit asks the question of whether the right of a person with a disability to serve on a jury is just a theoretical one or is it one with real bite. As usual, the blog entry is divided into categories and they are: Facts; why Lakrout according to the district court does not have standing to pursue a claim; highlights of amicus brief; thoughts/takeaways on district court decision; thoughts/takeaways on amicus brief/and in general.

I

Facts

Plaintiff is legally blind and uses a white cane for mobility, a screen reader for navigating her computer and phone, and other assistive technology in her everyday life. She got called for jury duty and participated in voir dire for a criminal case concerning allegations of rape and sexual abuse. On the first day of jury selection, she was not dismissed. She returned the following day. The attorney conducting the voir dire noted that the evidence presented at trial would include text messages and photos.

When all jurors were excused by the court at one point during the second day, defense counsel told the presiding judge that the defense consented to excluding the plaintiff because she wouldn’t be able to see the evidence. The bailiff then told the plaintiff that she was excused from jury duty and informed her that counsel was concerned about her ability to review all the evidence in the case. Sometime later, the court asked the jurors, except the plaintiff, to leave the courtroom so that she could address the court. When she was able to address the court, she said that she specifically has the right to serve on a jury irrespective of her disability with reasonable accommodations. She also said that it was important that blind individuals were not automatically excluded from important deliberations such as serving on a jury. She noted that she works and was an athlete. She also noted that she does lots of things and based off what she heard during the process, that there was no reason as to why she could not serve as an impartial juror who understands all of the evidence and everything implicated.

After the remarks were delivered, the court excused the plaintiff in the courtroom and then praising plaintiff’s dedication to her civic duty, asked counsel for both sides whether any reasonable accommodations would be enough to accommodate this prospective juror’s disability. The prosecutor said that with respect to text messages they could make reasonable accommodations for somebody who is visually impaired, but otherwise noted some uncertainty as to whether any accommodations were possible for her to view photographic evidence contained in text messages. Indeed, the prosecutor went on to say that the plaintiff would have to tell the prosecutor what it is that accommodates her in order to let her look at the pictures. Defense counsel stated that she did not know the level of plaintiff’s visual impairment, but that defense counsel had multiple concerns with respect to: 1) being able to look at the demeanor of the testifying accuser in a one witness case where credibility was the key; 2) whether video evidence and emoji’s and text messages might not be able to be shared with plaintiff without editorializing; and 3) any description of the video evidence relate to plaintiff would essentially be someone testifying to what is on the video. The presiding judge ultimately agreed and excused plaintiff without further discussion. Both sides reiterated they consented to plaintiff being excused. After receiving an unsatisfactory answer to her request for any documents pertaining to policies and procedures with respect to adaptive technology to assist blind jurors, plaintiff brought the lawsuit alleging a systemic failure by the New York County Supreme Court criminal term (in New York the Supreme Court is actually the trial court), to accommodate blind individual called to jury duty. She specifically alleged that she was discriminated against on the basis of her blindness. She also alleged failure to accommodate and a failure to have any policies or procedures in place with respect to assistive technology for blind jurors.

 

II

Why Lakrout According to The District court Does Not Have Standing to Pursue a Claim

  1. Jury service is a program covered by Title II of the ADA.
  2. The allegations in the amended complaint present a unique interaction between a New York State trial judge’s discretion in excusing jurors, a criminal defendant’s constitutional right to a fair trial, and the rights under the ADA and Rehabilitation Act of a person with a disability to serve on a jury.
  3. The injury flows purely from the intervening act of the trial court in exercising its discretion to excuse the plaintiff at the request of both parties in that case.
  4. The state court clearly explored whether any reasonable accommodations would be enough to accommodate plaintiff to serve as a juror in the criminal case before him, but ultimately concluded when hearing from both parties that even with the accommodations available, she could not serve given the nature of the evidence to be presented at trial. In so doing, the court balanced plaintiff’s right to serve on the jury with reasonable accommodations with the criminal defendant’s right to a fair trial and the parties right to exclude jurors for cause.
  5. The transcript reflects a typical exercise of discretion exercised by a New York State Court, irrespective of whether the plaintiff thinks the exercise of that discretion was correct in determining whether a potential juror’s disability prevented her from providing reasonable jury service even with accommodations.
  6. Whether a person with a disability can provide reasonable jury service in a given case must be left largely to the discretion of the trial court, which can question and observe the prospective juror during the voir dire process.
  7. The state court acted within its independent discretionary authority, which is an intervening act cutting off any causal connection between defendants and plaintiff’s alleged injury because the defendants were not involved in any way in the exercise of that discretion.
  8. Even where a different court struck down a policy excluding all blind individuals from serving at jurors at such a policy clearly violated the ADA, that court noted a court and the attorneys retain discretion in determining whether it is appropriate for a juror to serve in any given case given the particular facts or circumstances of that case. That is, while no per se rule of exclusion should be employed against persons with disabilities wishing to serve as jurors, no per se rule of inclusion should apply either.
  9. The allegations and undisputed facts are that the court exercised it discretion in balancing the defendant’s right to a fair trial and the plaintiff’s rights under the ADA reasonable accommodations.
  10. In this instance, the court’s determination that plaintiff could not serve given the particular nature of the evidence in the case does not plausibly reflect any systemic inaction by defendants. Accordingly, plaintiff failed to plausibly tie her injury to any action or inaction by the particular defendants.
  11. The individual judge was not a party to the case, and he exercised his discretion to excuse the plaintiff from jury service after exploring the possibility of accommodations with the parties to the underlying criminal trial.
  12. Plaintiff has not plausibly alleged that her dismissal was caused by defendants systemic action or inaction as opposed to an individual judge’s discretion to dismiss an individual juror based on consideration germane to the trial presentation and the particular criminal case.
  13. The critical intervening act of discretion appropriately exercised by the state court, which the Southern District of New York cannot second-guess, broke any causal connection between the defendant and the plaintiffs allege injury. Therefore, the plaintiff lacked standing to bring her case.

 

III

Highlights Of Amicus Brief

  1. Congress enacted §504 of the Rehabilitation Act as well as Title II of the ADA to remedy systemic barriers to access that people with disabilities face by imposing on public entities affirmative duty to remove those barriers.
  2. Neither the judge nor the prosecutor asked the plaintiff what accommodations she needed or initiated any procedures in order to determine effective accommodations that would allow her to carry out her constitutional duty.
  3. The district court’s erroneous causation analysis shields defendants discriminatory failures from judicial review and directly undermine the objectives of §504 and the ADA.
  4. Jury service is critical to dispensing justice and the American legal system and one of the pillars of American democracy.
  5. The requirement of a jury being chosen from a fair cross-section of the community is fundamental to the American system of justice.
  6. When people with disabilities cannot participate in public court proceedings as prospective jurors, on equal terms with their non-disabled peers, the government reinforces the message they are second-class citizens, and it also undermines the judicial process’s legitimacy and promise of fairness.
  7. Both the ADA and the Rehabilitation Act impose an affirmative duty on public entity to modify their policies, procedures, and practices to remove barriers to accessibility.
  8. Prospective jurors face pervasive institutional barriers to jury service that are not the result of discriminatory individual decisions, but are instead the result of the widespread failures of courts to take required affirmative steps to include and accommodate disabled court users, including identifying and providing auxiliary aids and services a person may need.
  9. The Supreme Court has stated that discrimination against persons with disabilities was perceived by Congress to be most often the product, not of invidious animus, but rather of thoughtlessness and indifference- a benign neglect.
  10. In drafting and passing the ADA, Congress relied on extensive findings about the history and ongoing predominance of disability discrimination in the United States, including in the critical area of accessing the courts. For example, Congress appointed task force reported numerous examples of persons with visual and hearing disability being excluded from jury service and the failure of state and local government to provide interpretive services for the hearing impaired. Congress also heard testimony from people with disabilities describing structural inaccessibility of local courthouses around the country and learned that many individuals were excluded from courthouses in court proceedings on the basis of their disabilities.
  11. Legislative history confirms that for generations, governments have baked into their structures and operation barriers preventing people with disabilities from participating in governmental functions on equal terms. Congress recognized that those barriers, including the exclusion from jury service, relegate people with disability to a position of political powerlessness in our society, based on characteristics beyond the control of such individuals.
  12. Both §504 of the Rehabilitation Act and Title II of the ADA require that public entities make reasonable modifications in policies, practices, or procedures when necessary to avoid discrimination on the basis of disability.
  13. Public entities must also provide auxiliary aids and services to ensure effective communication with a disabled person, based on the individual’s communication methods and needs.
  14. Since public entities have a legal responsibility for removing long-standing barriers to accessibility, the failure to fulfill those duties has the same discriminatory effect as the barriers themselves.
  15. One member of the National Federation of the Blind reported that she was routinely turned away from jury service by court employees who told her that a blind juror would never be selected. Another member described how court officials upon learning of her blindness, told her that she likely would not be selected for jury service and encouraged her to simply disqualify herself when summoned. Yet another member, recalled being chosen for jury duty but subsequently removed and replaced by an alternate juror prior to closing argument because she was blind even though she has paid close attention throughout the trial while several of her co-jurors had fallen asleep.
  16. People with hearing impairments continue to experience denial of effective communication when they seek to access the courts.
  17. In the vast majority of situations, persons with disabilities can be accommodated and it can be done without fundamentally altering jury service.
  18. Despite a broader cultural understanding that people with disabilities cannot be categorically excluded from jury service, the deaf and blind/visually impaired individuals continue to be excused from jury service due to institutional failure to provide reasonable accommodations and effective communication.
  19. Court systems often fail to create policies and procedures for securing auxiliary aids and services, such as optical magnifiers, large print materials, braille materials, braille notetaking computers, and electronic notetakers. They also failed to budget for such items and failed to adequately train core staff in how to include jurors and potential jurors with disabilities without adequate accommodation procedures and staff training,
  20. Jurors continue to be excluded from jury service not because of their inability to serve, but because of institutional practices that fail to account for their needs.
  21. Absent proactive efforts to transform policies, procedures, and culture, depriving the judicial process of the valuable perspective that persons with disabilities bring to a case, systemic discrimination against jurors with disabilities will persist.
  22. Accounting for a blind juror’s needs is a matter of flexibility and responsiveness to requests for accommodations. Solutions are as limitless as a willing imagination can conceive.
  23. The guidelines for dealing with jurors with disabilities issued by the state courts of New York is simply inadequate. They don’t speak at all to the particular ways that blind/visually impaired juror’s might be accommodated with respect to participating in jury service.
  24. The guidelines also lack procedures and protocols for identifying disabled court users accommodation needs, identifying securing available auxiliary aids, services, equipment, devices, and materials, or for securing additional resources.
  25. The guidelines set up accommodations to be handled by an individual judge without the involvement of the statewide ADA coordinator, without a written denial of accommodation form, and without the ability to seek a timely review of the denial.
  26. Under the district court’s reasoning, a potential juror never has standing to sue a court system under §504 of the Rehabilitation Act or the ADA for disability discrimination, including a failure to provide reasonable accommodation, so long at the message of exclusion is conveyed by a judge. Such an analysis she owes defendants from judicial review and directly undermines the objectives of §504 and the ADA as set forth by the Supreme Court in Tennessee v. Lane.
  27. No one, including the judge or the prosecutor, asked the plaintiff what accommodation she needed, investigated any accommodation, or initiated any meaningful procedures to determine effective communications.
  28. The district court’s decision shields unlawful discrimination against prospective jurors where the communication of that decision was made by a judge. If the blessing of a judge could break the causal connection that grants standing, then all forms of systemic discrimination against potential jurors would be insulated from judicial review and that simply can’t be the case.

 

IV

Thoughts/Takeaways on District Court Decision

  1. Baked into Title I of the ADA is a concept called the interactive process. A recent post that I wrote for the Federal Bar Association blog discusses the best practices of the interactive process, here. Any interactive process should be with the person with the disability themselves and not a matter to be resolved through the adversarial system. In this case, the interactive process should be between the court and the person with the disability. Instead, it was between the court and the parties involved in the case who varied in their disability awareness.
  2. Without a fulsome interactive process, it’s hard to conclude that the court balanced the plaintiff’s right to serve on a jury with reasonable accommodations with the criminal defendant’s right to a fair trial and with the parties right to exclude jurors for cause.
  3. The interactive process is not explicitly incorporated into Title II and Title III either statutorily or by way of regulation. Nevertheless, you can find Title II cases talking about the need of the public entity to engage in the interactive process, particularly but not exclusively when it comes to the field of higher education. Title III cases insisting on an interactive process can be found with great effort. In any case, preventive law demands that the interactive process be used regardless of the Title of the ADA involved. After all, it is simply hard to understand how can you figure out what a reasonable accommodation/modification is without engaging in the interactive process.
  4. Per PGA Tour v. Martin, here, the ADA always requires an individualized analysis. It is not a far stretch from an individualized analysis requirement to say that an interactive process is required, though admittedly the two concepts are not the same.
  5. Undoubtedly, Tennessee v. Lane, here, grants persons with disabilities the right to have Batson send challenges exercised on their behalf. However, the reasoning of the district court in Lakrout is such that any Batson challenge on behalf of a person with a disability would likely fail.
  6. The way the district court decision sets itself up as the ability to exclude a juror is within judicial discretion, means that even if the right defendants were to be sued, judicial immunity would act as a barrier to any redress.
  7. Some of the arguments go too far. For example, the reasoning suggests that an ASL interpreter would be a third party interpreting information for a Deaf individual, which is not how ASL interpreting works at all.
  8. There is also very much an undercurrent of ableism running through the opinion and a lack of awareness of how disability accommodations work for an individual with a disability. The lack of awareness could have been solved by a more fulsome interactive process with the plaintiff.
  9. I do think there is a constitutional argument to be made here that persons with disabilities have a right to serve on a jury and that right must include a fulsome interactive process before a juror with a disability can be excluded from serving as a juror. The argument would go like this: 1) the right to serve on a jury is specifically mentioned in the ADA legislative findings and noted with approval by the Supreme Court in Tennessee v. Lane; 2) Tennessee v. Lane also said that the right to serve on a jury is of the kind of right that goes beyond rational basis; 3) since beyond rational basis is involved, a court would need a very good reason or a compelling reason to discriminate against persons with disabilities; and 4) impossible for a very good reason or a compelling reason to exist without a fulsome interactive process, such as the process described here: https://www.fedbar.org/blog/when-dealing-with-persons-with-disabilities-the-interactive-process-is-absolutely-critical/

V

Thoughts/Takeaways Amicus Brief/and in General

  1. Without saying explicitly as much, the amicus brief says the judge did not adequately engage in the interactive process.
  2. Agreed that the analysis of the district court means that state courts are free to discriminate against persons with disabilities in jury selection without any means of redress both because of the causation analysis with respect to standing, and what that analysis necessarily means for what would be the automatic application of judicial immunity given the analysis of the court.
  3. The amicus brief eludes to effective communication rules. The effective communication rules applies to anyone with a disability related to communication, which would certainly include the blind/visually impaired. Under those rules, 28 C.F.R. §35.160(b)(2), a public entity must give primary consideration to the way a person with a disability prefers to communicate.
  4. Congress did specifically note in the ADA itself that persons with disabilities have been denied access to the courts.
  5. The amicus brief eludes to equal protection without going into a great deal of analysis. When it comes to accessing the courts, of which jury duty is certainly an element of that, per Tennessee v. Lane, persons with disabilities are at least in the intermediate scrutiny class. Accordingly, the argument then is the minimal interactive process done by this district court is not good enough when it comes to accommodating a person with a disability with respect to the right to serve on a jury.
  6. Accommodating a person with a disability doesn’t cost as much as you might think. Most accommodation costs nothing and the rest costs no more than $1500 in the extreme cases, last I checked.
  7. An argument could also be created that excluding a person from jury service is essentially saying that allowing that person to serve as a juror would fundamentally alter the nature of the activity. That is a pretty high bar. Also, when a public entity makes a fundamental alteration decision, regulations require per 28 C.F.R. §35.150(a)(3), that the head of that public entity certify as much, which wasn’t done in this case.
  8. Check your state law practices. Your state may have a system for putting people with disabilities on a not allowed to be jurors list even without their consent. It is possible given my own experience, that Georgia is such a State, though I don’t know that for sure.
  9. As a deaf individual, I have personally faced issues with being able to be a part of the voir dire process, especially without accommodations.
  10. Agreed that if the interactive process is done properly, in the vast majority of situations a person with a disability can be accommodated with respect to their jury service without it fundamentally altering the nature of jury service.
  11. Absolutely agree that person with disabilities continue to be excluded from jury service and that an interactive process is not properly utilized to make that a correct determination.
  12. The Federal Bar Association’s Disability Best Practices Working Group, which is a division of the Committee for the Advancement in the Legal Profession, is coming up with a toolkit that can be used for attorneys dealing with people with disabilities. Hopefully, that toolkit will be out by the fall. A toolkit for court systems to use when accommodating people with disabilities is still being discussed with respect to just how it will be distributed and what organizations might distribute it. I will keep everyone posted on that.
  13. 100% agree that whenever you are dealing with a request to accommodate an individual with a disability, solutions are as limitless as a willing imagination can conceive.
  14. Completely agree that the district court’s reasoning prevents successful Batson challenges or any challenge by a juror with a disability from being able to seek redress on the basis of being a booted from jury selection because of their disability.
  15. I have put this case on my to follow list. It undoubtedly will go to the Supreme Court at some point. It is also quite conceivable that a Circuit Court split will develop. As to what the Supreme Court will ultimately do on this particular issue, there are certainly three votes in favor of a person with a disability having the right to serve on a jury. The question would be where do the other votes come from. Persons with disabilities have been successful at the Supreme Court level, particularly outside of the employment context. This issue goes to fundamental rights. I certainly would not discount the right of a plaintiff, such as this one, from being successful at the Supreme Court level when it comes to that point in time, though one never knows.
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The ADA just had its 36th year anniversary. Happy anniversary!! In June, I got to visit the George H.W. Bush presidential library where his signing of the ADA is featured prominently. It was pretty neat to see that. Interestingly enough, many years ago when I visited the George W. Bush presidential library in Dallas, Texas, which is definitely worthwhile visiting, especially for its interactive components, there was nary a mention of his signing of the Americans with Disabilities Act Amendments Act. I don’t know if that has changed since then, but I did find it strange considering the impact of that law on the rights of persons with disabilities.

Turning to the blog entry for the week, the new eligibility rule put out by the NCAA for D 1 athletes raises all kinds of disability rights issues, as we discussed here. It’s only a matter of time before we see litigation on the matter. The case of the week, Ondekane v. NCAA, decided by the District Court of Douglas County, Nebraska on July 1, 2026, here, is the first step in what is likely to be much more litigation to follow. As usual, the blog entry is divided into categories and they are: facts; why Isaac Ondekane won on Nebraska state law claims; why Isaac Ondekane would win on ADA/Rehabilitation Act claims; and thought/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

Diego Pavia, a quarterback for Vanderbilt University, sued the NCAA regarding their rules on eligibility. He alleged that he should have more eligibility because he started at a junior college. Those efforts proved successful and resulted in a settlement. Ondekane (the plaintiff in this blog entry), had been granted the extra year to play basketball for the University of Nebraska Omaha per that settlement. However, he suffered a season-ending injury before that season began and was not able to participate. He sued the NCAA claiming that he was entitled to that extra year of eligibility already granted to him. The NCAA refused and even refused to engage in an individualized analysis to see if a waiver was justified. So, he brought suit.

 

II

Why Isaac Ondekane won on Nebraska State Law Claims

  1. While there is a rule of law saying that voluntary associations can get a lot of leeway with respect to their practices (noninterference rule), the NCAA is hardly such a voluntary association and numerous courts have held as much. The reasoning of the various courts for doing so include: 1) the NCAA is so dominant in its field that membership in a practical sense is not voluntary but economically necessary; 2) the athlete is not even a member of the Athletic Association. So, basic “freedom of association,” principles behind the rule giving voluntary associations lots of leeway is not present; 3) the athlete himself has no voice or bargaining power concerning the rules and regulations adopted by the Athletic Association because he is not a member. Even so, the athlete stand to be substantially affected and even damaged, by an association ruling declaring the athlete to be ineligible to participate in intercollegiate athletics. That in turn, means that the athlete may be deprived of the property right eligibility to participate in intercollegiate athletics; 4) this noninterference doctrine does not apply to challenges of students who are not members of an Athletic Association and yet have to rely on it for the opportunity to play collegiate sports. Those same students have significant financial interests in their eligibility.
  2. The Constitution and bylaws of the NCAA are binding agreements between the NCAA and its members for the benefit of student-athletes.
  3. Under Nebraska law, in order for not named parties to recover under a contract as a third-party beneficiary, the contract must appear by express stipulation whereby its reasonable intent is that the rights and interests of the unnamed parties were contemplated in that provision.
  4. Plaintiff identified several provisions of the NCAA bylaws that he asserts exist for his benefit in which he argued that the NCAA breached in refusing to apply them to his situation. In particular, plaintiff noted Bylaw 12.6.1.7.1 that establishes a waiver criteria: 1) when the student-athlete is deprived of the opportunity to participate in intercollegiate competition and one other season due to circumstances beyond the control of the student-athlete for the institution; 2) when the student-athlete is deprived of the opportunity to participate for more than one season in the athlete’s sport within the five-year period of eligibility or reasons beyond the control of the student-athlete for the institution; 3) that same bylaw defines “circumstances beyond control,” to include situations supported by contemporaneous medical documentation stating that a student-athlete is unable to participate in intercollegiate competition as a result of incapacitating physical or mental circumstances.
  5. Plaintiff also identified NCAA bylaw 12.6.4 entitled hardship waiver, which provides an additional year of competition for reasons of hardship. Hardship is further defined as an incapacity resulting from an injury or illness occurring: 1) the incapacitating injury or illness occurs in one of the four seasons of intercollegiate competition at any two-year or four-year collegiate institution or occurs after the first day of classes in the student-athlete’s senior year in high school; 2) the injury or illness occurs before the first contest or date of competition of the second half of the playing season that concludes with the NCAA championship in that sport and results in an capacity to compete for the remainder of that playing season; and 3) the injury or illness occurs when the student-athlete had not participated in more than three contests or dates of competition or 30% of the maximum number of contests or dates of completion of the playing season concluding with the NCAA championship for the applicable sport plus 1 contest or date of competition, whichever is greater.
  6. The parties do not dispute that plaintiff: 1) never redshirted; 2) was a member of the basketball roster and eligible to play in the 2025-26 season; 3) and was deprived of the ability to participate due to his ankle injury through no fault of his own.
  7. Plaintiff as an injured student-athlete was the intended beneficiary of the various provisions in the NCAA bylaws but received no meaningful consideration under them.
  8. Plaintiff also clearly met the requirements of the bylaws for an additional season.
  9. A fifth season of competition was already granted to the plaintiff.
  10. Nothing in the reasoning behind the extra year of eligibility granted to those suggests that the plaintiff should be barred from consideration under the waiver provisions in the NCAA bylaws meant to provide relief to injured athletes.
  11. Plaintiff was already granted a fifth season of competition and is not seeking an additional season through the litigation. Instead, he is seeking the ability to use a hardship waiver due to injury during the entire season for which he was eligible.
  12. Plaintiff was granted a fifth season of competition by the NCAA and only seeks the opportunity to apply for a hardship waiver after an early season-ending injury so that he can use the season he was already granted at a time when he is not injured.
  13. Plaintiff absent the Temporary Restraining Order will suffer irreparable harm in the following ways: 1) the 2026-27 intercollegiate basketball season is time sensitive, and the opportunity to compete at the division I level, once lost, cannot be recovered or remedy by monetary damages; 2) absent relief, plaintiff faces permanent and irreversible loss of his final season of intercollegiate competition; 3) defendant suffers from no concrete operational harm from one student-athlete competing under a court order for one season; 4) the Pavia waiver was the result of litigation from with the NCAA received the benefit of relief from ongoing litigation challenging the rule that allowed non-NCAA Junior college competition to count against years of NCAA eligibility, and it had the possibility of benefiting the plaintiff, since the plaintiff would have regained possibly two additional years of competition. While the NCAA gained a benefit from the settlement of that litigation, plaintiff received no benefit from the waiver even though he was in the class of intended beneficiaries; and 5) while the text of the Pavia waiver contains no language about accommodation for seriously injured athletes, it is not in the public interest for the NCAA to avoid litigation by issuing a narrow waiver, while making no provision for students seriously injured at the beginning of the extra season it granted.
  14. Nebraska has its own law dealing with name image and likeness and that law reflects a legislative judgment that student-athlete participation and economic interests warrants legal protections.

 

III

Why Isaac Ondekane Would Win on ADA/Rehabilitation Act Claims

  1. A person having to miss athletic eligibility because of an injury would most certainly have a disability as defined by the ADA. Remember, after the amendments to the ADA, a temporary disability may be a covered disability where it substantially limits a major life activity.
  2. A person has a disability if they have any of the following: 1) a physical or mental impairment that substantially limits one or more major life activities; 2) a record of such an impairment; for 3) is regarded as having such an impairment. 42 U.S.C. §12102(1). Ondekane clearly has a record of a disability per the ADA. Satisfying any one of these prongs is sufficient to be covered under the ADA.
  3. 28 C.F.R. §36.202(a), Denial of participation: states, “A public accommodation shall not subject an individual or class of individuals on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.”
  4. 28 C.F.R. §36.202(b), Participation in unequal benefit: states, “A public accommodation shall not afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals.”
  5. 28 C.F.R. § 36.204 Administrative methods: states, “A public accommodation shall not, directly or through contractual or other arrangements, utilize standards or criteria or methods of administration that have the effect of discriminating on the basis of disability, or that perpetuate the discrimination of others who are subject to common administrative control.” (Arguably, the set up of the D1 athlete and the NCAA creates a strong argument of common administrative control by the university or college). See, Matthews v. NCAA, 179 F. Supp. 2d 1209 (E.D. Wash. 2001).
  6. 28 C.F.R. §35.130(b)(3)(i) prohibits utilizing criteria that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability.
  7. 28 C.F.R. §35.130(b)(3)(ii) prohibits utilizing criteria that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities.
  8. 28 C.F.R. §35.130(b)(1)(v) prohibits a nonfederal governmental entity from providing significant assistance to an organization that discriminates on the basis of disability.
  9. 34 C.F.R. § 104.43 Treatment of students; general: states, “(a) No qualified handicapped student shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any academic, research, occupational training, housing, health insurance, counseling, financial aid, physical education, athletics (emphasis mine), recreation, transportation, other extracurricular, or other postsecondary education aid, benefits, or services to which this subpart applies.”
  10. 34 C.F.R. § 104.47(a)(1). Nonacademic services. States, “(a) Physical education and athletics. (1) In providing physical education courses and athletics and similar aid, benefits, or services to any of its students, a recipient to which this subpart applies may not discriminate on the basis of handicap. A recipient that offers physical education courses or that operates or sponsors intercollegiate (emphasis mine), club, or intramural athletics shall provide to qualified handicapped students an equal opportunity for participation in these activities.
  11. The final regulations found in Title 28 of the C.F.R. are final implementing regulations for Title III of the ADA, while the final regulations found in Title 34 of the C.F.R. mentioned in this blog entry are final implementing regulations for §504 of the Rehabilitation Act for post-secondary institutions. Since just about every college or university takes federal funds, a college or university is subject to both the ADA (Title II if public, and Title III per 42 U.S.C. §12181(7)(J) if a private entity), and to the Rehabilitation Act.

IV

Thoughts/Takeaways

  1. This case went off on Nebraska state law involving third-party beneficiaries. However, the applicable final regulations implementing Title II and Title III of the ADA make clear that this case would have been equally successful under either Title II (nonfederal governmental entities, which would include public places of higher education), and Title III (places of public accommodation, which includes private places of higher education), of the ADA.
  2. A person has a disability if they have any of the following: 1) a physical or mental impairment that substantially limits one or more major life activities; 2) a record of such an impairment; for 3) is regarded as having such an impairment. 42 U.S.C. §12102(1) Ondekane clearly has a record of such an impairment. Any one of these prongs is sufficient to be covered under the ADA.
  3. For over 25 years, the NCAA has been held to be a place of public accommodation under the ADA. See, Matthews v. NCAA, 179 F. Supp. 2d 1209 (E.D. Wash. 2001).
  4. The ADA per PGA Tour v. Martin, here, always requires an individualized analysis regardless of the Title of the ADA involved.
  5. Undoubtedly, athletes will be injured and not able to play a season before the actual season begins (excluding any exhibition games). Those athletes per the five-year rule, have five years eligibility. However, as a result of the disability they incur, they will not have five years of eligibility. Instead, the year(s) they are injured will be counted against them. So, like this case, the athlete with a record of a disability will only be seeking to be able to play the same number of years for their college as an athlete would play if they did not have a temporary disability that substantially limits one or more major life activities or a record of a disability.
  6. I don’t see how the NCAA has any choice but to bring back the medical waiver system into their new five-year rule. While one never knows, the applicable statutory and final implementing regulations for both the ADA and the Rehabilitation Act are pretty clear that an athlete should not be penalized for missing a season due to an injury.
  7. With respect to how the ADA looks at disability, remember the ADA does not care how the disability was obtained in the first place, rather it only cares if the disability exists.

 

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This week’s blog entry explores how an employer might go about bulletproofing just what are the essential functions of a job. The case for the week is In the Matter of Rachael Smelyansky v. New York State Office of Gen. Services, here, decided by the State of New York’s Appellate Division on June 11, 2026. As usual, the blog entry is divided into categories and they are: facts; why the defendant failed to establish the essential functions of petitioner’s job; why the defendant failed to establish an undue hardship; why petitioner’s retaliation claim should have survived summary judgment; and thought/takeaways. Of course, the reader is free to focus on any or all of the categories. The decision turns on New York State law but its approach is very similar to the ADA. Smelyansky even referred to the ADA constantly during all stages of the litigation, so this case is still worth discussing.

I

Facts

Petitioner was employed by OGS as a “Contract Management Specialist 1.” In July 2020, during the COVID-19 pandemic, OGS granted petitioner an accommodation permitting her to work remotely full time due to her anxiety related to COVID-19 exposure. OGS extended that accommodation at petitioner’s request several times through early 2023, consistent with its pandemic-era practice of liberally permitting telework for its entire workforce without regard to an employee’s disability. However, the agency never intended for those measures to be permanent.

By early 2023, OGS decided to curtail remote work throughout its ranks. It concluded that remote work hampered efficient collaboration and caused employees to become “siloed” within their roles; it found that training and collaboration were more effective in person. To promote more direct supervision, its new telecommuting policy required employees to be present on most days. It permitted less remote work in general and evaluated remote work accommodation requests on a case-by-case basis.

In April 2023, petitioner requested a further extension of her full-time remote work accommodation, citing COVID-19 related anxiety. Notably, OGS never disputed that petitioner’s anxiety constituted a disability as defined by the Human Rights Law or the Americans with Disabilities Act. In response, OGS purportedly considered petitioner’s position and job duties and concluded that full-time remote work would both prevent her from performing essential job functions and impose an undue hardship on the agency. In its formal determination dated May 16, 2023, OGS determined, among other things, that petitioner must be physically present to (1) obtain answers to “spontaneous process questions,” (2) benefit from “interpersonal exchange with coworkers” and (3) receive “direction from managers in real time.” Agency staff claimed that employees, including petitioner, communicated and collaborated better in person where they could share “non-verbal cues” and resolve issues face to face. OGS denied petitioner’s request to continue working remotely full time; as an alternative, OGS proposed a gradual return-to-work plan. Petitioner pursued an administrative appeal of the employer’s denial to the Reasonable Accommodation Appeals Review Committee, which upheld OGS’s determination. On May 24, 2023, petitioner reluctantly advised her supervisor that she would return to work under the modified schedule offered by OGS and selected specific dates in June 2023 to report to the office.

Following the denial of her administrative appeal, petitioner also applied for and received intermittent leave under the Family and Medical Leave Act (hereinafter FMLA) to care for an ailing family member. Petitioner and OGS disagreed on whether her proposed hybrid schedule required her to “make up” scheduled in-person days when she used FMLA leave instead of appearing in the office. OGS advised petitioner that “call[ing] out on each of your in-office days renders the key provision of the Reasonable Accommodation meaningless.” After petitioner failed to report to the workplace as directed in June 2023, OGS designated her “absent without leave” (hereinafter AWOL) and withheld her compensation.

In August 2023, petitioner submitted a new reasonable accommodation request based on depressive and anxiety disorders, unrelated to COVID-19, and again sought full-time telecommuting, citing updated medical documentation from her physician. Following more discussion, the parties agreed that petitioner would gradually return to work in person, with changes to her work environment and schedule. Petitioner returned with a modified schedule and a private office. According to respondents, she has performed satisfactorily, even receiving a promotion during this litigation.

II

Why the Defendant Failed to Establish the Essential Functions of Petitioner’s Job

  1. Establishing that defendant unlawfully denied a reasonable accommodation request means demonstrating: 1) petitioner is an individual with a statutory defined disability; 2) defendant had notice of that disability; and 3) petitioner with or without reasonable accommodations could perform the essential functions of her job.
  2. Whether a task constitutes an essential function depends upon the totality of the circumstances, including: 1) the employer’s judgment; 2) written job descriptions; 3) the amount of time spent on the job performing the function; 4) the consequences of not requiring the employee to perform the function; 5) the provisions of any collective bargaining agreement; 6) work experience of past employees in the job; and 7) the work experience of current employees in similar jobs.
  3. A good faith interactive process is the first step in providing a reasonable accommodation. Such a process assesses the needs of the individual with a disability and the reasonableness of the accommodation requested.
  4. The essential functions of the position need to be part of the interactive process that the law requires, not a unilateral employer decision cloaked by business judgment.
  5. The employer’s individualized assessment (emphasis in opinion), of the employee’s essential duties and the feasibility of the requested accommodation is a defining feature of disability rights law, as it represents the key mechanism for facilitating the integration of employees with disabilities into the workplace.
  6. Defendant failed to establish the essential functions of the position.
  7. In order to avoid unfounded reliance on uninformed assumptions, the identification of the essential functions of the job requires a fact specific inquiry into both the employer’s description of the job and how the job is actually performed in practice.
  8. The employer’s May 16, 2023 denial letter and its internal emails preceding it, describe petitioner’s duty vaguely and parroted agencywide operational concerns, all of which shows defendant’s failure to conduct the required “highly fact specific inquiry,” (emphasis in opinion), into the actual functioning and circumstances of the particular enterprise involved.
  9. While an employer’s judgment gets consideration, it is not conclusive.
  10. With respect to the essential functions of petitioner’s job, the defendant did not identify the following: 1) the actual tasks for the amount of time spent performing them; 2) whether those tasks require petitioner’s in person presence; 3) the consequences of performing those tasks remotely; 4) the tasks that could be performed by others or whether petitioner supervises other employees.
  11. Defendant also did not submit an accurate written job description, which would be evidence regarding the work experience of employees in the same or similar positions or proof bearing on other relevant factors.
  12. Defendant failed to show that it considered petitioner’s major tasks, assignments and activities as detailed in her past performance evaluations.
  13. Characterization of certain basic communication and collaboration functions as “essential,” is not sufficient to satisfy defendant’s prima facie burden, particularly where its analysis was not tailored to petitioner’s job description and arguably applied to all employees working in diverse jobs.
  14. Defendant did not address which, if any, of petitioner’s duties had to be performed in person.
  15. Absent from the record is any assessment that the petitioner was unable to perform her duties remotely or which particular task assigned to her mandated attendance in the office. In fact, the record reflects exactly the opposite, as petitioner worked effectively from home for three years pursuant to prior accommodations.
  16. While defendant acted within the legitimate authority to cut back on its flexible pandemic error remote work policy, that did not remove the obligation for the defendant to conduct an individualized assessment of petitioner’s ability to work remotely in order to accommodate her disability after it resumed primarily in person operations.

 

III

Why the Defendant Failed to Establish an Undue Hardship

  1. When determining whether or not accommodation is an undue hardship, any relevant factor gets considered, including those set forth in New York Executive Law §296(3)(b), as well as: 1) the size of the business measured by the size of the workforce and budget; 2) the type of operation in which the business is engaged; and 3) the nature and cost of the requested accommodation. Defendant did not particularize any of these factors relying instead on generalized claims about the aggregate impact of remote work on its nondisabled employees.
  2. Defendant conceded that petitioner’s business unit performed limited tasks requiring an in person response and that many members of the procurement services staff have been working from home successfully.
  3. Petitioner’s supervisor characterized her as trainable and coachable and noted that she participated in team collaboration and delivered on work obligations and expectations all while working remotely.
  4. Defendant did not identify any specific hardship arising from continuing petitioner’s work from home arrangement.
  5. While defendant engaged in the interactive process in good faith, it’s undue hardship assertions were insufficient to establish petitioner’s essential duties or undue hardship as a matter of law.
  6. Petitioner created a triable question of fact by submitting evidence that her requested accommodation would be effective, including previous satisfactory performance evaluations, her direct supervisor’s opinion that full-time telecommuting would compatible with petitioner’s job duties, and internal emails that candidly minimized the impact of granting her the requested accommodation.
  7. Defendant confuses its preferred reasonable workplace goals with petitioner’s essential job functions and then cited the impact of remote work on its aggregate workforce. Such an approach does not work when it comes to establishing an undue hardship.

 

IV

Why Petitioner’s Retaliation Claim Should Have Survived Summary Judgment

  1. In order to establish that it is entitled to summary judgment in retaliation case, defendant must demonstrate that the petitioner cannot make out a prima facie claim of retaliation or, that it offered legitimate, non-retaliatory reasons for the challenged actions, and there exists no triable issue of fact as to whether the agency’s explanations were pretextual.
  2. Viewing the evidence in the light most favorable to petitioner, and absent evidentiary proof about the parties conflicting interpretations of the modified accommodation at issue, whether defendant’s stated reason for determining the petitioner was absent without leave and withholding or compensation was pretextual, presents a question of fact.

 

V

Thoughts/Takeaways

  1. I am not a New York licensed attorney.
  2. Keep job descriptions current and based upon what is actually happening on a day-to-day basis.
  3. In a footnote, the court mentioned that the petitioner references the ADA throughout the factual allegations of her petition and in her appellate brief. However, this case goes off entirely under the New York Human Rights Law. This does illustrate just how similar federal and state laws can be when it comes to disability discrimination in employment (this court refers to the EEOC factors for determining essential functions on more than one occasion even if it doesn’t explicitly say it is doing that). So, always be sure to check your state laws when you are dealing with disability discrimination, whether it be employment or otherwise.
  4. Courts can vary widely in terms of how much discretion they give employers when it comes to how they view what the essential functions of the job are. This particular court gives very little leeway to the employer.
  5. Individualized analysis is everything. Individualized analysis refers to both assessing the situation in terms of the disability and what reasonable accommodation might work. It also means focusing on the particular individual’s essential functions of the job. What is happening on the ground with respect to the employee’s essential functions of the job is absolutely the key.
  6. General assertions about essential functions do not fly.
  7. While an employer is free to force people back into the office, the fact that the employee did the essential functions of the job for years is probative evidence the essential functions of the job can be done remotely.
  8. The court’s reasoning gives an excellent roadmap as to how an employer might ensure a successful otherwise qualified/qualified defense (i.e. a person could not do the essential functions of the job with or without reasonable accommodations). The key is an individualized analysis of the essential functions of the particular job the employee has. It is also means an individualized analysis of what reasonable accommodation might work for the employee with disability. Remember, no two disabilities are the same even the same ones. Finally, backing up undue hardship with specific evidence rather than relying on general assertions also matters.
  9. The court’s reasoning and its application of New York law closely resembles the ADA in its approach. So, it is logical to believe that plaintiff’s lawyers will use this case as a guideline for arguing that an employer simply did not bulletproof its essential functions of the job. Also, look for plaintiff’s lawyers to refer to this court’s discussion of how remote work successfully done in the past matters.
  10. Robin Shea in one of her recent blog entries, here, has some excellent thoughts on how an employer should deal with an employee that sues it while remaining an employee. Robin’s blog entry is well worth a read.
  11. As I mentioned in this blog entry, I really like the Samper case for determining whether remote work is in order for reasonable accommodation. As I discussed in that blog entry, the pandemic has meant that a couple of those criteria need to be modified slightly.
  12. I am not a New York licensed attorney.
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Before getting started on the blog entry of the week, I wanted to pass along that the Federal Bar Association has announced its award recipients for this year. I am quite honored to be the recipient of the Sarah T. Hughes Civil Rights Award (the history of that award can be found here). I pick up the award in September at the national convention in Richmond, Virginia. I also have to make a kind of a speech that I don’t typically make, which should be interesting. I do want to thank all the people along the way that have made this possible, including: my parents, my wife of 25 years, my daughter, as well as the incredible openness of numerous people involved with the Federal Bar Association for encouraging and then wanting more and more of the disability perspective. The people are too numerous to list, but I want to list a few and sincerely apologize to anyone left off. The people at the FBA include the wonderful staff from the very top on down. It also includes tremendous people that I have had the opportunity to work with on various committees, including but not limited to: Tara Norgard, Lisa Kpor, Katherine Earle Yanes (who just happens to be the 2026 FBA Kintner award winner), Bryan Bannon, Robin Wagner, Kyle Kaiser, Eric Foley, Kate Marples Simpson, Wylie Stecklow (a previous Sarah T. Hughes award winner), Stephen  J. Haedicke, Lauren DiMartino, the Hon. John L. Badalamenti, all the members of the Federal Bar Association Civil Rights Board and Diversity and Inclusion Board that I’ve had the privilege to work with over time, as well as anybody else from anywhere that has gone along with this journey with me. Thank you and am truly honored.

 

Turning to the blog entry of the week, I really struggled with what to blog on. I came very close to blogging on a Second Circuit, Bergin v. New York State Court System, decision that added a motive requirement to the prima facie case when it comes to religious failure to accommodate cases. My thinking was the lack of ADA knowledge was a possible explanation for the holding. However, when I dug deeper, there are enough differences between the Supreme Court decisions dealing with religious accommodation matters v. the ADA statutory and common law interpretation in failure to accommodate cases, that made the analogy not work. So, I had to move on to something else. The case of the day is Klimek v. CentraCare Health System, a unanimous published decision decided on June 15, 2026, from the Eighth Circuit, here. As usual, the blog entry is divided into categories and they are: facts; plaintiff was an otherwise qualified individual with a disability; defendant didn’t persuasively make the case that remote work was an essential function of the job; plaintiff’s failure to accommodate claim should not have resulted in summary judgment for the defendant; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

Christine Klimek is a registered nurse who worked for CentraCare between 2008 and 2021. In 2010, she suffered a workplace-related injury and subsequently developed Complex Regional Pain Syndrome, which is also known as Reflex Sympathetic Dystrophy (“RSD”). According to Klimek, her RSD causes vertigo, nausea, dry heaves, chronic pain throughout her body, and a disproportionate pain response to minor injuries. It also affects her cognitive abilities, mood, sleep, and appetite. In 2016, CentraCare instituted a policy requiring all employees to get the measles, mumps, and rubella (“MMR”) vaccine. Klimek applied for a medical exemption, accompanied by a letter from her doctor supporting her request. The letter stated that “a painful stimulus like a vaccine can flare up” Klimek’s RSD, and given Klimek’s condition, “the risks of a vaccine seem to outweigh the benefits.” Based on this information, CentraCare concluded Klimek met “the criteria for a permanent medical exemption,” and should not have “live vaccinations” while being treated for RSD.

In 2021, Klimek accepted a position as a clinical documentation integrity specialist, which involved coding diagnoses and preparing medical records. She performed this work remotely from home 100% of the time. That same year, CentraCare implemented a new policy requiring the COVID-19 vaccination for every employee unless the employee obtained a medical or religious exemption. Klimek applied for a medical exemption, stating she was currently “medically exempt from any/all live or attenuated vaccinations related to a CentraCare workrelated injury resulting in a documented permanent disability and a rare condition, Chronic Regional Pain Syndrome/Reflex Sympathetic Dystrophy.” She added, “This exemption has been documented and filed in my chart since August 2016. My condition is lifelong and I manage the negative effects on a daily basis.” Klimek’s provider also completed a portion of the form, stating: “Patient has RSD as well as documentation that explains her reaction to all vaccines. It is not recommended that -3- she get any vaccines due to her RSD.” Klimek also attached a separate letter from her medical provider.

In October 2021, plaintiff’s exemption request was denied without explanation, and she was advised she would be placed on unpaid administrative leave unless she received the vaccine. Plaintiff’s employer sent a letter to the plaintiff saying there was a deadline for providing relevant medical information for employees who had their exemption request denied. Plaintiff submitted that documentation within that deadline. However, the employer again denied her request without explanation and informed her that if she was not vaccinated before December 15 of 2021, she would be placed on unpaid leave. On December 3, 2021, plaintiff and her employer’s incident commander for the Covid-19 response met by teleconference to discuss the denial of plaintiff’s accommodation request. At that teleconference the incident commander said that the vaccine would be a requirement for ongoing employment with the defendant and that 100% remote work was not part of the equation for the position she had and given the location she was at. On December 16, 2021, plaintiff’s employer placed her on an involuntary unpaid leave of absence because she was unvaccinated thereby effectively ending her employment.

 

II

Plaintiff Was an Otherwise Qualified Individual with a Disability

  1. To establish a prima facie case of discrimination based on disability, plaintiff had to show: 1) she is disabled per the ADA; 2) she is a qualified person under the ADA; and 3) she suffered an adverse employment decision because of a disability. Even thin evidence creating a disputed issue of material fact is sufficient. So, the court was correct to hold that a genuine issue of material fact existed as to whether plaintiff’s condition qualified as a disability under the ADA.
  2. An employer disputing a plaintiff’s claim that she can perform the essential job functions has to put forth evidence establishing those functions.
  3. Adding the label of “policy,” to a task does not render it an essential job function, and a duty does not become essential simply by the employer’s say so.
  4. When deciding whether a duty is an essential job function, an employer’s judgment, while probative, is merely evidence and not conclusive.
  5. Defendant offered no explanation as to how an accommodation in the form of a medical exemption from a vaccine requirement could itself be an essential job function. That is, a qualified individual is a person who with or without reasonable accommodation can perform the essential functions of the job they hold or desire. So, an accommodation cannot also be an essential function. Holding otherwise conflates two concepts contrary to the plain text of the ADA. That is, exemption from vaccination requirements are a type of accommodation and not an essential job function.
  6. Defendant’s argument that the plaintiff spent some time in the community has nothing to do with whether the plaintiff was a qualified individual. An unvaccinated employee spending her free time active in the community performing regular life tasks, such as buying groceries or taking a walk, is performing tasks entirely unrelated to her employment.
  7. The essential function requirement of the ADA focuses on the desired result rather than on the means of accomplishing that result.

 

III

Defendant Didn’t Persuasively Make the Case That Remote Work Was an Essential Function of the Job

  1. An essential function of the job is a fundamental duty of the employment position, which varies according to the job.
  2. Evidence to consider in determining an essential function of the job includes: 1) the employer’s judgment as to what functions are essential; 2) written job description prepared before advertising or interviewing applicants for the job; 3) the amount of time spent on the job performing the function; 4) the consequences of not requiring the employee to perform the function; and 5) the current work experience of employees and similar jobs.
  3. Viewing the evidence in the light most favorable to the plaintiff, plaintiff showed that her position involved no physical patient care and that she was working entirely from home electronically preparing records.
  4. Plaintiff’s job description does not indicate that in person work was contemplated. In the position’s “Core Functions,” duties included such things as identifying documentation issues and collecting data. Nothing in the job description related to physical care of patients. Defendant also failed to adequately show that there were any negative consequences of not requiring the plaintiff to perform in person patient care.

 

IV

Plaintiff’s Failure to Accommodate Claim Should Not Have Resulted in Summary Judgment for The Defendant

  1. Surviving summary judgment in a failure to accommodate case means a plaintiff has the burden of showing: 1) the employer knew of her disability; 2) plaintiff requested an accommodation or assistance for her disability; 3) defendant did not make a good-faith effort to assist plaintiff in seeking an accommodation; and 4) plaintiff could have been reasonably accommodated but for the employer’s lack of good faith.
  2. To trigger the interactive process, the employee must provide the employer with enough information so that the employer knows of the disability and the request for an accommodation.
  3. Defendant knew about plaintiff’s impairment because she developed her medical condition after suffering a workplace injury. Defendant has also received all of her medical records from the date of the injury until approximately 2014. Further, defendant’s workers compensation insurance covered plaintiff’s recovery and surgery costs.
  4. The defendant also received letters from plaintiff’s treating doctor advising them of her condition and that since vaccines could cause a flareup of that condition, plaintiff should refrain from accepting the MMR vaccination to avoid possible complications. In response, the defendant determined that plaintiff met the criteria for a permanent medical exemption. Every year after that, defendant contacted plaintiff during the influenza season regarding her medical exemption reminding her to complete a flu educational module and wear a mask.
  5. Defendant’s Covid-19 policy required employees seeking exemption to provide two pieces of information, which she did. Defendant never requested further documentation after receiving plaintiff’s documentation. For that matter, it didn’t give plaintiff any reason why she was denied a medical exemption.
  6. Defendant was aware of plaintiff’s medical history based on prior and ongoing communications about her condition that prevented her from receiving a flu vaccination.
  7. Defendants have previously granted plaintiff a permanent medical exemption for at least some vaccines and had knowledge of her workplace injury, and had also received her providers assessments. If the defendant needed more information beyond this, it should have requested it but did not do so.
  8. Once an employer is made aware of a legitimate request for an accommodation, the employer must make a reasonable effort to determine the appropriate accommodation.
  9. Defendant admitted that it did not consider plaintiff’s work from home status or the type of work she performed when denying her request. As such, that calls into question whether the defendant made a reasonable effort to determine whether an appropriate accommodation for plaintiff’s disability could be found.
  10. When the plaintiff questioned the incident commander on whether the vaccine would be a requirement for ongoing employment with the defendant, she insisted she had a right to continue working from home 100% remotely.
  11. Where an employer’s directive eliminates the possibility of an accommodation, it is no longer participating in good faith to assist an employee in trying to identify a suitable accommodation.
  12. A factfinder looking at the evidence could find it sufficient to draw a reasonable inference that the defendant blew up the interactive process. In other words, given that the defendant twice denied plaintiff’s exemption request without explanation, a jury could find that the incident commander’s offer to speak with plaintiff’s providers was not an attempt to find clarity or search for suitable accommodation because the defendant had already made up its mind thereby leaving the plaintiff with the choice of either vaccination or termination.
  13. Plaintiff was already working from home unvaccinated and had been doing so for months. She did not work with patients or in the presence of coworkers, and her requested accommodation was to merely continue working in the exact same capacity.
  14. Evidence in the record indicates an available reasonable accommodation under defendant’s own policies included an unvaccinated employee working from home.
  15. Once a plaintiff makes the facial showing that reasonable accommodations were possible, the burden shifts to the employer to prove that it was unable to accommodate the employee. Doing that means the employer has to show special specific circumstances demonstrating undue hardship. An undue hardship cannot be proved by hypothetical facts and must be sufficiently real rather than speculative.

 

V

Thoughts/Takeaways

 

  1. An employer labeling something a policy does not turn it into an essential function of the job.
  2. An employer’s judgment is merely evidence and not conclusive. That said, check your jurisdiction on this as jurisdictions and individual judges can vary quite a bit in terms of how much leeway they give an employer with respect to what the employer says are the essential functions of a job.
  3. An accommodation cannot be an essential job function. They are two entirely different things.
  4. Time spent on community activities that people typically spend time on and are unrelated to the job does not jeopardize a person’s qualified status under the ADA.
  5. Essential functions of the job focus on the desired result rather than on the means of accomplishing that result. I can’t tell you how often I have seen employers run themselves into problems quite literally for decades now because they don’t understand this particular point.
  6. Nothing in the job description nor in the way plaintiff historically performed the work suggested that remote work was an essential function of the job. So, up-to-date job description reflecting the reality of what the job actually does on a day-to-day basis is critical.
  7. There are a variety of ways how court talk about what needs to be shown in order to trigger the interactive process. They all essentially amount to something very close to what this court says, which is a plaintiff has to give the employer enough information so the employer knows of the disability and the request for an accommodation.
  8. The decision is published and therefore, is precedential.
  9. Make sure corporate policy is followed.
  10. With respect to how the interactive process works, see here.
  11. Where an employer issued a directive eliminating the possibility of an accommodation, it blows up the interactive process.
  12. Check your jurisdiction as to how it deals with the question of the burdens on an employer once a plaintiff makes a facial showing that reasonable accommodation were possible. Courts can be all over the place on that.
  13. As a matter of preventive law, when it comes to trying to determine if remote work would be a reasonable accommodation, I really like the case that we talked about With the advent of remote work, I do think the criteria set forth in that case have to be modified slightly so what you want to be looking at is: 1) the employee must work in person as part of the team; 2) the job requires in person face-to-face interaction with clients and other employees; or 3) the job requires the employee to work with items and equipment that are on site.

 

Happy 36th anniversary to the ADA!!!!!!!!!!!!!!!!!!!!!!!

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As I have covered previously, here, it’s a bit of the wild west as to the way forward when it comes to emotional support animals. HUD still doesn’t have anything, but if you plug in assistance animals into the search engine on their website, you get what appears as discussed below. The search engine is an AI bot. My thanks to individuals on the AHEAD (Association on Higher Education and Disabilities), listserv for alerting me to this and raising other related concerns. My thoughts are below. The cutting and pasting is mine from the inquiry I made. As for organization of this blog entry, whenever you see “My answer:,” what immediately follows after that are my thoughts. Anything else is the HUD AI bot.

 

Under the Fair Housing Act, a housing provider — including a landlord in a “no pets” building — must allow an assistance animal as a reasonable accommodation when a resident or applicant has a disability and the animal is connected to that disability.

 

My answer: I have no problem with this.

 

Here is what that means in practice.

What counts as an assistance animal

An assistance animal is not a pet. It includes trained service animals (such as a guide dog) and also emotional support animals, therapy animals, and companion animals — any animal that provides disability-related assistance or emotional support. There is no requirement that the animal be professionally trained or certified.

 

My answer: This is an AI Bot. Even with specific legal focused Generative AI, I have seen the AI get the law wrong or stretch cited authority to mean things they simply can’t mean. An AI response is not the same thing as a final regulation. It is also not the same thing as a guidance or circular, or even an internal memorandum, or a technical assistance memorandum for that matter. You definitely want to be getting legal advice when it comes to ESAs (emotional support animals), in housing and how you want to proceed going forward. I agree that there is no requirement that the animal be professionally trained, service animal or otherwise. There is also no certification for service animals in the United States. Finally, assuming “assistance animal,” is the term being used, it is not accurate to say that the various kinds of animals falling within the category of “assistance animal,” get the same legal protections.

 

What you can be asked

A housing provider may ask two questions: Does the person have a disability? Is there a disability-related need for the animal? They cannot require documentation if the disability and need are obvious. They cannot impose a pet deposit or pet fee for an assistance animal.

 

My answer: If the HUD bot is utilizing the DOJ approach, it gets it wrong. The DOJ regulations specifically talk about two inquiries and not two questions. See here and here. With respect to documentation, if it is a service animal, and you get positive answers to both inquiries, you can’t even request documentation. The “obvious,” reference is a suggestion the EEOC regulations might be in play. The EEOC regulations do talk about getting documentation for reasonable accommodation requests, with the amount of documentation that can be requested depending on how obvious the disability is.

 

How to request the accommodation

Ask your housing provider in writing. State that you have a disability, that the animal is needed because of that disability, and that you are requesting a reasonable accommodation. You do not need to disclose your specific diagnosis.

 

My answer: Nothing in either the EEOC or DOJ final regulations dealing with reasonable accommodations (EEOC), for reasonable modifications (DOJ), or for service animals (DOJ), talk about how you have to make the request in writing. For that matter, HUD and DOJ have never insisted on this, at least going back to 2004. The request can be in writing or oral. Also, the next question becomes as to when the request is sufficient. Preventive law demands a request is sufficient the instant the housing provider knows an accommodation might be necessary regardless of how it is phrased or whether it is in writing.

If a request is denied

A denial may be a Fair Housing Act violation. To file a complaint, contact HUD’s Office of Fair Housing and Equal Opportunity at 1-800-669-9777 or file online at https://www.hud.gov/reporthousingdiscrimination.

 

My answer: A denial of what? Are we talking about service animals, emotional support animals, therapy animals, etc. The particular kind of animal involved might make all the difference in the world as to whether there is a violation of the FHA are not.

What types of assistance animals are covered under HUD’s rules?

This is an important area where HUD’s policy has recently changed. Here is what you need to know as of May 2026.

What changed

On May 22, 2026, HUD rescinded its prior assistance animal guidance (including the 2020 guidance, FHEO-2020-01) and issued a new enforcement memorandum.

 

My answer: The AI bot is just wrong that the recent HUD action is a new enforcement memorandum. Instead, it is an internal memorandum put out by HUD. Two very different concepts with very different treatment by courts.

 

Under the new policy, HUD’s Office of Fair Housing and Equal Opportunity (FHEO) will generally find a Fair Housing Act violation only when a housing provider denies an animal that has been individually trained to perform work or tasks related to a person’s disability — that is, a trained service animal.

My answer: I agree.

 

What this means for emotional support animals

Under the previous framework, untrained emotional support animals (ESAs) — animals that provide comfort or companionship but are not trained to perform specific tasks — were treated as assistance animals requiring reasonable accommodation. The new guidance removes that presumption. FHEO will generally not find a Fair Housing Act violation when a housing provider denies an untrained ESA. New complaints involving ESAs will generally receive a no-cause finding, and open cases are being reviewed individually.

 

My answer: This is consistent with HUD’s internal memorandum.

 

What has not changed

This is an enforcement policy shift, not a change in the Fair Housing Act itself.

 

My answer: The FHA says nothing about animals in the statute. It does have two final regulations specifically related to animals. For private housing, HUD uses the example of a guide dog for the blind. In that regulation, it specifically uses the term “example,” here. For public housing, the terminology is very different, here. If you look at the history behind the public housing regulation discussed in some cases, such as this one, you will find that particular regulation was meant to include emotional support animals. How a court will interpret the public housing regulation after the pulling of the guidances and in light of Loper Bright, is unclear. With respect to private housing, it is quite a reach to argue emotional support animals fall within the scope of a regulation that gives an example of a service animal.

 

The law remains in place, and private lawsuits under the FHA are still possible. More importantly, many states and localities have their own fair housing laws that provide broader protections for ESAs — those protections are unaffected by HUD’s federal enforcement guidance.

 

My Answer: This is absolutely the case. Many states have incorporated emotional support animals into their statutes. Some states even essentially adopted prior HUD guidances and put them into their statutes. I know of several states with emotional support animals specifically in their statutes. Illinois even has a statutory scheme dealing with it, which we discussed here. So, state laws are super important when it comes to emotional support animals.

 

Three things worth knowing going forward

  1. HUD has indicated it intends to pursue formal rulemaking to codify these standards. Watch the Federal Register at https://www.federalregister.gov for proposed rules.

 

My answer: See this blog entry. It is going to be very interesting whether HUD adopts the DOJ approach or the EEOC approach or some combination of the two. The combination approach is what this AI bot is doing.

 

  1. If your state has a fair housing law covering ESAs, your state’s civil rights or housing agency is the right contact.

 

My Answer: I completely agree with this. If your state has specific emotional support animal statutes and/or regulations, those are going to be the controlling authority when it comes to emotional support animals.

 

Can a landlord ask for documentation proving I need an assistance animal?

The answer depends on whether your disability and need for the animal are readily apparent — and on the type of animal involved.

 

My answer: There is nothing in the FHA, or its final implementing regulations, suggesting this is the way it works. The “readily apparent,” is clearly being borrowed from DOJ service animal regulations.

 

 

 

Here is how it works under current rules.

When no documentation can be required

A landlord cannot ask for documentation if both your disability and your disability-related need for the animal are obvious. A person using a trained guide dog, for example, does not owe any explanation.

My answer: This answer is borrowing from the EEOC approach. It is possible that HUD will take this approach or combine it with the DOJ approach.

 

When documentation can be requested

If either the disability or the connection between the animal and the disability is not apparent, a landlord may ask for reliable documentation from a licensed healthcare provider — a doctor, therapist, or similar professional — confirming that you have a disability and that the animal is needed because of it.

 

My answer: This is sort of an EEOC approach. Interesting that the term used is “reliable,” and not “reasonable.” If you are going to go with the EEOC approach, do not go on fishing expeditions. Only seek enough information to confirm the request is what is seems to be.

 

What a landlord may NOT require:

  • Formal certification or registration of the animal (no such official registry exists)
  • Proof of specialized training for the animal

 

My answer: I completely agree.

  • Documentation purchased from an internet “ESA letter” website — HUD has specifically cautioned that these are not reliable

 

My answer: This is absolutely strange. Why would a landlord require documentation purchased from an unreliable website?

 

What this means under HUD’s current enforcement policy

As noted in our earlier exchange, HUD’s May 2026 guidance limits federal Fair Housing Act enforcement to trained service animals. For a trained service animal, a landlord may ask only two things: is this person disabled, and is this animal trained to perform a task related to that disability.

My answer: As mentioned above, it looks like this is adopting the DOJ approach. The DOJ approach is focused on two inquiries and not on two questions. The confusion comes from looking at the DOJ final implementing regulations v. a DOJ frequently asked questions document. Of course, the final implementing regulations (two inquiries), are going to prevail over any frequently asked questions document suggesting otherwise.

 

They cannot demand detailed medical records or a specific diagnosis.

For untrained emotional support animals, FHEO will generally not pursue a federal complaint if a landlord denies the animal — though state and local fair housing laws may still apply and offer broader protections.

My answer: Agreed.

What documentation is generally acceptable to support an assistance animal request?

Based on what we have already covered in this conversation, here is a clear picture of what documentation generally holds up.

What works

The standard that has consistently applied under HUD’s framework is a letter or written statement from a licensed healthcare provider who has personal knowledge of your condition. That includes:

  • A physician, psychiatrist, or psychologist
  • A licensed clinical social worker or therapist
  • A licensed counselor or other mental health professional

The letter should confirm three things: that you have a disability, that you have a disability-related need for the animal, and that there is a connection between the two. It does not need to disclose your specific diagnosis, and it does not need to describe the animal’s training in detail.

 

My answer: All kinds of problems here. First, it talks about documentation supporting an assistance animal. However, an assistance animal is being defined by the AI bot as it was in past HUD guidances where it could refer to both a service animal and an emotional support animal. Especially with the pulling of the guidances, you now get two very different places with respect to the kind of documentation you can request. The kind of documentation you can request will also depend upon whether the DOJ approach or the EEOC approach is being used. The AI bot is combining both approaches without any authority to do so. Second, if the EEOC approach is being used, then I agree that this kind of documentation would be helpful.

 

What does not work

HUD has specifically warned that the following are not considered reliable documentation:

  • Certificates, registrations, or “official” ID cards purchased from internet websites
  • Generic letters sold by online services with no genuine provider-patient relationship behind them
  • Any document that simply declares an animal to be a “certified” or “registered” service animal — no such official federal registry exists

 

My answer: I agree.

 

A few practical points

The documentation should come from a provider who actually knows you and your situation, not one who issued a letter after a brief online questionnaire. A landlord may verify that the provider is licensed but cannot demand your full medical records or require you to use a specific form.

 

My answer: See the above discussion about the EEOC approach v. the DOJ approach.

 

Given HUD’s May 2026 policy shift, documentation is most protective today when it supports a request for a trained service animal. For that animal type, the bar is straightforward: confirm the disability and the trained task that addresses it.

 

My answer: What does the bot mean by confirming the disability and the trained task. Is it just talking about just making the two inquiries when the disability is not readily apparent? Is it talking about making the two inquiries automatically, such as what the Air Carrier Access Act allows for regardless of whether the disability is readily apparent? See this blog entry.

If you have questions about whether your documentation is sufficient, a HUD-approved housing counselor can review your situation with you — reach one at 1-800-569-4287.

 

My answer: This area is now so incredibly uncertain, knowledgeable legal counsel would be my first choice rather than HUD counselors.

 

AI-Generated Responses

Responses may be incomplete, outdated, or incorrect. HUD AI may summarize public sources, generate explanations, or provide links that require further review.

Use of the service does not create an attorney-client, fiduciary, counselor-client, applicant-agency, or other professional relationship.

Informational Use Only

HUD AI provides general information about public housing, HUD programs, and related government resources. It is not a substitute for official HUD guidance, legal advice, financial advice, or a final eligibility determination.

Program rules, forms, deadlines, and local availability can change. You should confirm important information with the relevant agency, public housing authority, lender, counselor, or official HUD source before taking action.

 

 

My Answer: There is an awful lot out there about how generative AI can make up things completely out of whole cloth so to speak. In the law, there are certainly some tools that can be used where you can reliably say that an authority will not be made up out of whole cloth. However, even there, the AI will stretch authority beyond recognition. It will also completely get it wrong as to what the various authority means when you add it all up. Generative AI also uses cut off dates, and so what you see may or may not be timely (a cut off date problem does not seem to be an issue here). Generative AI does not, at least as of yet in my experience, get nuances in the law. Law can get very complicated and can turn on very subtle things. For example, I have seen AI miss the distinction entirely between the interactive process and an individualized analysis. They are two very related concepts but also quite different from each other. Finally, AI can have its own implicit biases depending upon whose bot is being used, and it may also give you different answers depending upon the prompts used.

 

Conclusions:

 

  1. In short, AI is NOT!!!!! a substitute for legal counsel.
  2. Very concerning that the government is relying on an AI bot this way as an awful lot of people, hopefully not many lawyers but I’m sure there will be some, are going to rely on this as authority with the bot being on the HUD website. People will just presume it is accurate. It also isn’t clear to me whether the bot being used on HUD’s website has any HUD oversight associated with it.
  3. As to what authority the HUD bot (assuming it is not a third party bot, which it very well may be), is relying on, we don’t know. One possibility is a joint statement from DOJ and HUD issued in 2004. That statement while perhaps still in effect, is of questionable validity today for a couple of reasons. First, it specifically says it is for providing technical assistance. As such, the latest HUD internal memorandum on service animals and emotional support animals clearly supersedes it. Second, even if this technical assistance from 2004 were still in effect, it’s of no help to ESA advocates because the examples used in that document are clearly service animals and not emotional support animals.
  4. I get the benefit of AI, and it is certainly disrupting law in a big way. However, AI cannot be a substitute for the exercise of independent legal discretion by those licensed to do so.