I hope everyone had a fantastic Thanksgiving weekend. Today’s blog entry goes to the dogs literally. The blog entry talks about two different cases involving service animals and how the court system deals with them. My thanks to Prof. Leonard Sandler, clinical law professor at the University of Iowa Law School for sending along the cases. In the first case, Cohen v. Sinnot, from the United States District Court of Colorado decided on November 9, 2023 (unfortunately, I could not figure out a way to link to the decision as it is not in Google scholar yet or on casetext),  a state court discriminates against a person with a service animal by not allowing his service animal to accompany the litigant. In the second case, Hayer v. Liverant, from the Northern District of California decided on September 17, 2023, here, the court allows a Rule 35 exam of a dog’s owner in order to figure out whether the person with the disability/owner really needs the animal to allow them to benefit from enjoying their housing unit. As usual, the blog entry is divided into categories and they are: Cohen Facts; good things for Cohen and persons with disabilities with service animals; turns out Rooker-Feldman is a problem for Cohen; thoughts/takeaways Cohen; Hayer facts; Hayer’s reasoning to permit medical exam; and thought/takeaways Hayer. Of course, the reader is free to focus on any or all of the categories.



Cohen Facts (taken directly from the opinion).


Plaintiff’s Complaint alleges that she is facing numerous charges brought by the Boulder District Attorney. (ECF No. 5 at 4). She has attended numerous court hearings with her service dog, James, who is an adult male Golden Retriever. (Id.). According to Plaintiff, she has PTSD and dyslexia, which constitute disabilities under the ADA. (Id.). Her service dog is specifically trained for her PTSD disability. (Id.). The dog alerts Plaintiff to PTSD tachycardia and tachypnea so that she can take appropriate [*2] medicine and prevent a heart attack. (Id.). Plaintiff alleges that in May 2023 all of the Defendants told her that she could no longer bring her dog to Court. (Id. at 4-5). Her criminal defense attorney, Defendant Sinnott, told Plaintiff that the District Attorneys, Defendants Dougherty and Kendall, did not like the “optics” of her having a dog during trial. (Id. at 5). Plaintiff alleges that the Judge, Defendant Howard, made an oral ruling in court that the dog was no longer allowed, and told Plaintiff she would have to get permission from court disability services if she wanted to bring the dog. (Id.). Plaintiff states that there is no “court disability services” office. (Id.). She brings claims based on access to the Court and failure to provide reasonable accommodations for her disability under Title II of the Americans with Disabilities Act.

Plaintiff requested an injunction or other declaratory relief stating her dog is allowed and damages. (Id. at 9).



Good Things for Cohen and Persons with Disabilities with Service Animals


  1. Title II requires public entities to permit service animal to accompany people with disabilities in all areas where members of the public are allowed. 28 C.F.R. §35.136(g).
  2. Service animals are defined as dogs individually trained to do work or perform tasks for people with disabilities.
  3. Emotional support animals are not considered service animals under title II.
  4. To determine if a dog is a service animal, employees of a public entity are permitted to ask if the dog is a service animal required because of a disability, and what work or task the dog has been trained to perform. 28 C.F.R. §35.136(f).
  5. Employees of the public entity are not permitted to request documentation for the dog, require the dog to demonstrate a task, or inquire about the nature of the person’s disability.
  6. Per Tennessee v. Lane, sovereign immunity is not an issue because accessibility to the courtroom is involved.



Turns Out Rooker-Feldman is a Problem for Cohen


  1. Plaintiff’s claim of exclusion from the courthouse stems from a judicial order and not from a courthouse policy or practice.
  2. Rooker-Feldman doctrine provides that federal courts, other than the United States Supreme Court, lack jurisdiction to adjudicate claims seeking review of state court judgments.
  3. Since Rooker-Feldman itself arose from a constitutional challenge to the state court’s use of procedures, the Rooker-Feldman doctrine applies to procedural state court rulings as well as to substantive ones.
  4. Interlocutory orders enacted prior to the final disposition of state court lawsuits are not immune from the jurisdiction stripping powers of Rooker-Feldman.
  5. For Rooker-Feldman to apply, the state court judgment must be inextricably intertwined with the federal court lawsuit. That is, there must be no way for the injury complained of by a plaintiff to be separated from a state court judgment.
  6. The proper way to challenge the court order was through state court avenues as there is no conceivable way to address the wrong without overturning the order of the state court.
  7. Plaintiff can file an amended complaint asserting claims not barred by the Rooker-Feldman doctrine and the court encouraged the plaintiff to contact a pro se clinic to accomplish that.




Thoughts/Takeaways Cohen


  1. What happened after this decision is unclear. I can say that the case was dropped after an appeal of the magistrate decision was filed. I am not sure why as it is hard to tell from looking at the docket.
  2. There is another doctrine, Younger, that prohibits federal courts from interfering with state courts during the course of state court proceedings. Thus, this means that the best option a person has in order to challenge proceedings in state court that discriminate on the basis of disability, is to bring up those claims in state court while that proceeding is going on. You could under Rooker-Feldman, bring up a challenge to how the court went about deciding what it did so long as you don’t actually challenge the decision itself. Take a look at this blog entry for example.
  3. The decision certainly gives courts incentive to have judges decide the reasonable accommodation request rather than administrative personnel so as to come within the protection of a judicial order per Rooker-Feldman.
  4. Be aware, as we have previously discussed in the blog, that courts are pushing back on the wide applicability of Rooker-Feldman. See this blog entry for example.
  5. Unfortunately, pleading to get around Rooker-Feldman probably requires advanced legal knowledge and an attorney to figure that out. In this situation, the plaintiff was pro se as many are.
  6. It is not two questions but two inquiries. The two inquiries are whether the animal is required because of a disability and what work or task the animal has been trained to perform. 28 C.F.R. §35.136(f)
  7. On the positive side, the court does say that service animals must be allowed in the courtroom and that courts must follow the two inquiry paradigm.
  8. One wonders if there might not be interference claims available against the prosecutor and the defense attorney for discouraging the use of the service animal and in their advocacy and advice to discourage such use.
  9. One wonders if it is not malpractice for the defense attorney to not bring the ADA into their advocacy with respect to the client’s service animal.



Hayer Facts


Plaintiff rents a basement apartment in an approximately 12 unit building. She has a mental health condition that substantially impairs the major life activities of sleeping and coping with stress. She has been receiving treatment, including psychological therapy, for her mental health condition since January 2022. To better manage the symptoms of her disability and with the advice of her therapist, plaintiff decided to get a dog that would serve as an emotional support animal. On or about August 19, 2022, plaintiff emailed her property manager to request an emotional support animal in her home as a reasonable accommodation, attaching a letter from her therapist explaining the basis for her request.


The property manager never responded, but a week later, plaintiff received the first of a series of letters from the attorney representing the building owner to her and her therapist attacking her request on various grounds. In response, on September 5, 2022, plaintiff provided an updated letter to the property manager where she asked to be allowed to have a service dog in training in her home. On or about September 15, 2022, plaintiff received a 10 day warning of a possible eviction notice.


Among the allegations in her complaint was a claim for the intentional infliction of emotional distress.


Plaintiff did not plan to prove disability, mental condition, or emotional distress through expert testimony. Defendant designated Dr. John Fielder, a forensic psychologist, as an expert, and also sought to have him conduct a mental examination of Plaintiff pursuant to Rule 35. Defendant deposed Plaintiff, her treating psychiatrist, Dr. Kim, as well as her treating psychologist, Dr. Rosenberg, and will depose her second treating psychologist, Dr. Koshkarian. Defendant also received Plaintiff’s psychiatry records, relating to her psychiatry care and visits, and her therapist records. Both the therapist and psychiatrist records list Plaintiff’s disability diagnosis.



Hayer’s Reasoning to Permit Medical Exam


  1. Under Rule 35, a court may order a party whose mental or physical condition is in controversy to submit to a physical or mental examination upon a showing of good cause. So, to justify a mental examination under Rule 35, a defendant has to demonstrate that the plaintiff has placed their mental condition in controversy, and that there is good cause for the examination.
  2. Defendant has to show that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination.
  3. Deciding to mandate a Rule 35 exam, requires a discriminating application by the trial judge. After all, suffering a legal wrong is often emotionally distressing, but if that qualified as putting a mental condition in controversy, then the courts would be ordering mental exams all the time, which would be inconsistent with the discriminating application required by Rule 35.
  4. The intentional infliction for emotional distress claim puts plaintiff’s mental condition in controversy.
  5. Plaintiff also alleges discrimination based on her mental health condition. A claim based on a mental disability is sufficient to place the plaintiff’s mental state in controversy.
  6. In deciding whether good cause exists, a court considers several factors, including: 1) the possibility of obtaining desired information by other means; 2) whether plaintiff plan to prove her claim through testimony of expert witnesses; 3) whether the desired materials are relevant; and 4) whether plaintiff is claiming ongoing emotional distress.
  7. Defendant has not specified facts justifying an invasive mental examination because there are multiple other sources of relevant information. However, the court was persuaded that a mental examination is warranted in order to evaluate plaintiff’s mental disability and whether a dog is a reasonable accommodation for her condition. Defendant has specified the tool to be used to evaluate the plaintiff, a two-hour test called the Minnesota Multiphasic Personality Inventory-2. So, a mental examination is not superfluous as good cause exists to assess the plaintiff’s condition and whether the dog is a reasonable accommodation.



Thoughts/Takeaways Hayer


  1. There is absolutely no indication that this case involved filing a claim with HUD. If a claim would have been filed with HUD, then the circular, which we discussed here, would have driven matters. The issue of whether the circular is entitled to deference, which we discussed here, may have also come up considering how this case was litigated.
  2. Very worrisome that a claim alleging discrimination based upon a mental condition comes pretty close to automatically being subject to a Rule 35 exam. If a Rule 35 exam is required every time someone alleging a Fair Housing Act violation brings a mental health condition into the equation because of disability discrimination, then HUD’s Fair Housing Act circular might as well not exist. It also certainly discourages individuals from making a request to have a service animal or an emotional support animal so that they can enjoy their housing.
  3. The decision most definitely encourages people to file with HUD rather than first file with a court when it comes to contesting the exclusion of their service animal or emotional support animal from housing subject to the Fair Housing Act.
  4. Remember, the HUD circular talks about three different kind of animals: emotional support animals, assistance animals, and service animals. They are different from each other, though assistance animals per HUD can either be service animals that are not dogs or can be a broad category including support animals and service animals.
  5. One does wonder whether the decision would be the same without the intentional infliction of emotional distress claim.
  6. One also wonders if this case would have gone differently if HUD was the first option for the plaintiff.
  7. This is not the first time that I have seen a reference to the Minnesota Multiphasic Personality Inventory Test. There is a very well-known employment discrimination case, here, involving this test, which I have mentioned in my books.
  8. If a housing provider has sufficient resources and wants to ignore the HUD circular, this decision gives the landlord a roadmap for doing so. Utilizing the roadmap would mean the plaintiff electing to proceed with court proceedings instead of HUD and the landlord having substantial resources.
  9. I have seen persons with disabilities not understand the very important and significant distinction between emotional support animals and service animals. To be fair, the line between the two can be incredibly small for psychiatric service animals in particular.
  10. One wonders if a retaliation claim under the FHA or possibly even under the ADA does not exist against the landlord’s/landlord attorney for aggressively pursuing eviction despite being given substantial medical information.


Next week, should be my last substantive blog entry of the year. The week after I plan to post my annual most visited understanding the ADA blog entries for the year. I will, as I have done in years past, also include in that list some blog entries that are not the most visited but are super important as well.

Happy thanksgiving week everyone!!!


Today’s blog entry is the complaint, here, and consent decree, here, in U.S. v. City of Blaine, MN. The case has incredible parallels to what is going on in the world of health care professionals and Physician Health Programs (substance abuse programs such as discussed in this case, physician recovery programs are all very similar), which we discussed here. As usual, the blog entry is divided into categories and they are: key highlights of complaint; key highlights of the consent decree; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.



Key Highlights of Complaint


  1. At all times relevant to this action, Complainant was a person with a disability because he had alcohol use disorder, an impairment that substantially limited one or more of his major life activities, including the operation of major bodily functions, and he had a record of such impairments.
  2. Alcohol use disorder substantially limited the operation of Complainant’s major bodily functions, such as neurological and brain functions, and substantially limited him in major life activities, including concentrating, thinking, performing manual tasks, and communicating.
  3. At all times relevant to this action, Complainant was a qualified individual with a disability because he satisfied the requisite skill, experience, education, and other job-related requirements of the position he held with Defendant and, with or without reasonable accommodation, could perform the essential functions of the position.
  4. Defendant has a policy that, for employees who test positive for alcohol misuse or controlled substances use, Defendant is not responsible for any costs associated with an employee’s positive test results, including any substance abuse professional (“SAP”) evaluations, follow-ups, education, and treatment, and return-to-duty or follow-up testing required by Defendant.
  5. Despite the above policy, Defendant pays for testing costs in various contexts, including as part of pre-employment medical exams, after work-related accidents, and random testing of employees.
  6. In May 2020, Complainant voluntarily informed Defendant that he intended to take a 28-day leave in order to attend an alcohol treatment program.
  7. Shortly after Defendant learned that Complainant planned to attend an alcohol treatment program, Defendant advised Complainant by email that he must undergo a SAP evaluation within five working days, and provided Complainant with the name of Jerry Peters, Defendant’s recommended SAP.
  8. Defendant further advised Complainant that he must be removed from all safetysensitive duties until completing all recommendations from the SAP, pass an observed returnto-duty test with the results being negative for controlled substances and alcohol, and be subject to repeated follow-up testing upon his return to work.
  9. Defendant further advised Complainant that he must pay for Defendant’s required testing and evaluation, and that Defendant was not financially responsible for any costs associated with Complainant’s SAP evaluations, SAP follow-ups, treatment, education, and return-to-duty or follow-up testing
  10. Although Complainant never had a positive test result for alcohol or substance use of which Defendant was aware, Defendant nevertheless required Complainant to pay for his SAP evaluation and testing, even though Defendant’s policy states that it is not responsible for such costs when associated with a positive test result, and despite Defendant’s practice of paying testing costs associated with an employee’s positive test results in various contexts, including as part of pre-employment medical exams, after work-related accidents, and random testing of employees.
  11. In June 2020, Complainant successfully completed an alcohol treatment program and was discharged.
  12. Defendant then told Complainant that he could not return to work until he received a formal evaluation and recommendation from SAP Mr. Peters, to be provided to Defendant.
  13. SAP Mr. Peters then spoke with Complainant, and told Complainant to follow the recommendations made by the alcohol treatment program Complainant had attended.
  14. SAP Mr. Peters completed a SAP Evaluation and Recommendation Form regarding Complainant that he provided to Defendant, describing that Complainant successfully completed an inpatient alcohol treatment program, was an active participant, and was committed to abstinence.
  15. SAP Mr. Peters recommended that Complainant undergo repeated drug and alcohol testing over the course of the next four years, follow the recommendations made by the alcohol treatment program he participated in, and attend weekly Alcoholics Anonymous meetings.
  16. In early July 2020, Complainant returned to work for Defendant, on Defendant’s condition that he participate in repeated alcohol and drug testing over the course of the next four years at his own expense to document his health condition.
  17. After returning to work, Complainant underwent repeated alcohol and controlled substances tests at Defendant’s direction, all of which were negative.
  18. Complainant incurred substantial expenses in undergoing repeated testing and evaluation.
  19. Complainant found the testing experience to be extremely humiliating, including because it was conducted in a very unprofessional and degrading manner.
  20. Complainant was anxious and distressed that he was required to pay for testing that he understood his colleagues were not required to pay for, when he simply chose to be honest with Defendant about his choice to attend an alcohol treatment program.
  21. Defendant’s actions caused Complainant to suffer emotional distress.
  22. On or about August 27, 2020, Complainant filed a timely charge of discrimination with the United States Equal Employment Opportunity Commission (EEOC) alleging that Defendant discriminated against him on the basis of disability.
  23. Pursuant to 42 U.S.C. § 2000e-5, incorporated by reference in 42 U.S.C. § 12117(a), the EEOC investigated Complainant’s charge and found reasonable cause to believe that Defendant discriminated against him in violation of the ADA.
  24. After the EEOC’s conciliation efforts failed, the EEOC referred the matter to the United States Department of Justice.
  25. By requiring Complainant, and any other similarly situated employees, to pay for alcohol and drug testing and evaluation based on their disability, Defendant’s conduct as described in this Complaint constitutes discrimination on the basis of disability in violation of Title I of ADA, 42 U.S.C. §§ 12111−12117, and its implementing regulation, 29 C.F.R. Part 1630.
  26. Defendant’s policies and practices deprive Complainant, and any other similarly situated employees with disabilities, of equal employment opportunities, and otherwise adversely affect their status as employees because of their disabilities.



Key Highlights of Consent Decree


  1. Defendant denies the allegations and denies any ADA violations.
  2. General Nondiscrimination Obligation: Defendant, by and through its officials, agents, legal representatives, employees, and contractors, shall not engage in any act or practice that discriminates against any applicant or employee on the basis of disability in violation of Title I of the ADA and its implementing regulation.
  3. Written Policies, Practices, and Procedures: Defendant shall revise its policies, practices, and procedures to ensure that it does not discriminate on the basis of disability in its employment practices, including with respect to medical testing, services, and examinations, in violation of the ADA. Specifically, Defendant will revise its policies, practices, and procedures to provide that it will pay for services of a Substance Abuse Professional (“SAP”) and testing required by a SAP where: (1) an employee either voluntarily discloses alcohol use disorder, discloses other information indicating a disability, and/or participates in a drug or alcohol educational or treatment program; (2) the employee possesses a commercial driver’s license (CDL) and is subject to U.S. Department of Transportation (“DOT”) laws and regulations; and (3) A CDL driver does not self-identify as misusing alcohol or controlled substances in order to avoid testing under the requirements of the applicable DOT regulation.
    1. Within ninety (90) days of the entry of the Decree, Defendant shall send its revised policies, practices, and procedures to the United States for approval, which shall not be unreasonably withheld.
    2. Within thirty (30) days of the United States’ final approval of the revised policies, practices, and procedures, Defendant shall implement the revised policies, practices, and procedures, including by distributing copies of these policies to all employees whose work may be affected by such policies, practices, or procedures.
  4. Training: Within ninety (90) days of the United States’ final approval of all policies, practices, and procedures revised pursuant to Paragraph 8, Defendant shall submit to the United States for approval, which shall not be unreasonably withheld, the name of the trainer or trainers it seeks to use, including their Curriculum Vitae or resume, as well as an outline of the training content. Within six (6) months of the United States’ final approval of all policies, practices, and procedures revised pursuant to Paragraph 8, and annually throughout the term of this Decree, Defendant shall provide training on Title I of the ADA, and its implementing regulations, and Defendant’s revised policies, practices, and procedures, to employees who are involved in personnel decisions. The training shall also be provided to such applicable employees who are hired or promoted during the term of this Decree, within sixty (60) days of the start of their positions with Defendant. All trainings shall be conducted by trainers knowledgeable about Title I of the ADA, who Defendant has selected and the United States has approved. Trainings may be in-person, remote, and/or pre-recorded.
  5. Within fifteen (15) days of the entry of the Decree, Defendant shall offer Complainant a total monetary amount of $13,229.07, which includes:
    1. A monetary amount of $1,979.07, which is designated as out-of-pocket costs.
    2. A monetary amount of $11,250.00, which is designated as compensatory damages.
  6. The decree lasts for 30 months.





  1. The first question y’all might be asking is how does DOJ get involved in a title I lawsuit? Isn’t that the problem of the EEOC? Common question. The answer is the EEOC only has authority to prosecute title I lawsuits against private entities and not against nonfederal governmental entities. Prosecution of title I lawsuits against nonfederal governmental entities is the responsibility of DOJ. The way it works in those cases (I recently finished the representation of an individual working for a nonfederal governmental entity), is that: you should file with the EEOC within the applicable time frames; the EEOC then investigates and it may take some time for it to do so (you can expect at least six months and probably much longer); once the investigation is complete, the EEOC decides whether it will issue a right to sue or will issue a cause finding; if it issues a cause finding, which it must have done so in this case, the parties can agree to conciliation; if conciliation fails (the EEOC in its discretion decides that), then they either will issue a right to sue or will refer it to DOJ for prosecution.
  2. Alcoholism is a disability.
  3. Bad idea to say that costs will be paid for dealing with certain disabilities but not others.
  4. Bad idea to force an employee to pay the costs of an employer mandated action when that action turns on the disability of the employee.
  5. In the professional health program world, it is the healthcare professional that pays on a cash basis thousands of dollars to monitor their disabilities the PHP’s has decided the professional has.
  6. Whether a person is qualified in the employment context, depends upon whether they can do the essential functions of the job with or without reasonable accommodations without being a direct threat to self or others.
  7. Direct threat, as we discussed here, must be based upon an individualized analysis of whether the person has the present ability to safely perform the essential functions of the job with or without reasonable accommodations using the most current medical knowledge and/or the best available objective evidence.
  8. The DOJ has gone after the Pennsylvania courts and the Indiana Board of Nursing with respect to their insistence that the only way a person can qualify for their programs is by way of abstinence. So, be careful of requiring abstinence as a condition of participation with respect to returning to employment or with respect to a nonfederal governmental entity’s programs and activities. Also, be careful about mandating AA type participation as a condition of employment, as I am aware of case law saying such a requirement infringes upon freedom of religion. Individualized analysis always rules.
  9. This is a title I case but it strongly suggests that the DOJ may be very receptive to similar claims with respect to licensed professionals and the associated professional recovery programs, which are very much hooked into licensure.
  10. The consent decree requires revisions of the policies and procedures as well as training (training is a large part of my practice). With respect to DOJ consent decrees/settlements, I have seen outside trainers, including myself, utilized. On the EEOC side, it isn’t unusual for the EEOC itself to do the training.
  11. This consent decree goes for 2 ½ years.
  12. Anybody representing professionals in licensing matters whom have gotten referred to some kind of recovery program associated with the licensure system needs to be aware of this complaint and consent decree.
  13. Keep in mind in these licensure situations, you will virtually always have title II and title III going on simultaneously. You also may have title I going on as well. While the definitional terms are the same and the reasonable accommodation/modification paradigm is the same, the actual statutes, regulations, guidances, etc., can vary considerably. So, be sure to get help (for example, I work across all of the titles), if you are getting into an area of the ADA you are not terribly familiar with. I have seen far too many attorneys assume they can do a title of the ADA they don’t normally do because the definitional terms and the paradigm are similar. It simply doesn’t work that way.

Have a safe and happy Thanksgiving everyone!!!!

Previously, I have blogged on the inaccessibility of kiosks. Both of those blog entries, here and here, discussed whether the kiosk was a place of public accommodation. The case of the day, Vargas v. Quest Diagnostics Clinical Laboratories, here, is a bit different. In this case, you have a place that operates to draw blood and have their laboratories run the result when a doctor wants testing done. Quest uses a kiosk as part of the check in process. What happens when the kiosk is not accessible so that people with disabilities cannot check in with the same efficiencies as people without disabilities? By way of full disclosure, I am on the accessibility committee for the Kiosk Manufacturers Association. The facts are incredibly complicated and nuanced as well as a lot of them, so my usual categories for the blog entry do not make a lot of sense. So, after trying to do the blog entry my usual way for 90 minutes and getting nowhere, I have decided to adopt a different approach. The categories for this blog entry are: facts 30,000 feet overview; question/answers as a means of illustrating the court’s reasoning; and thoughts/takeaways. As usual, the reader is free to focus on any or all of the categories. Again, for all the relevant facts, the reader is strongly encouraged to dive into the opinion itself.



Facts 30,000 feet overview


If it is easy to summarize the facts, I will do that. Many times, I find it more efficient and more accurate to cut-and-paste the facts. Unfortunately, this particular case is one where the critical facts are many and quite long. So, summarizing the facts or cutting and pasting them is either very difficult or makes the blog entry too long. Basically, what you have here is that Quest Diagnostics is in the business of providing diagnostic information services, which includes collecting blood and urine specimens from patients that it then tests in accordance with physician orders. Quest Diagnostics and its subsidiaries receive the specimens for testing from hospitals and medical practices, but also collect specimens for testing through patient service centers (“PSCs”) located throughout the United States. It was never a part of the model to staff the place where people go to have their blood drawn with receptionists. So, electronic systems, which Quest Diagnostics calls kiosks (they are actually iPads), were put in place.


A blind individual shows up at Quest Diagnostics to have his blood drawn and simply cannot check in effectively. The whole experience was embarrassing and humiliating. The specific facts can be found in the opinion itself. There is a lot more to it than what is listed here. He also went back a second time as well and things weren’t quite right then either but he knew how the system worked. Again, take a look at the opinion, here, for a detailed recitation of the facts.


Additionally, the Department of Justice (“DOJ”) has issued an Advance Notice of Proposed Rulemaking (“ANPRM”) seeking comments on a proposal to promulgate regulations regarding accessibility of self-service kiosks. See Self-Service Transaction Machines and Self-Service Kiosks, 87 Fed. Reg. 57662 (proposed Sep. 7, 2022). In the ANPRM, the DOJ indicates that it intends to supplement the existing ADA Guidelines to require self-service kiosks to meet requirements currently applicable only to ATMs and fare machines. Id. at 57663. DOJ indicates that it will evaluate a number of potential questions, including what kiosks the new rule should cover, what technical requirements should be incorporated, and how many accessible kiosks a location should be required to provide.


Questions/Answers as a Way of Illustrating the Court’s Reasoning

  1. Why didn’t you go into more detail as to the facts of this case as you usually do? Answer: as mentioned above, there are just too many of the relevant facts to cover without making the blog entry incredibly long. Also, some of the facts pertain to very granular details of the ADA and it might make some heads swims so to speak.
  2. Why is this case different from all other kiosk cases that have been discussed previously? Answer: the difference is that the kiosks are part of the integrated system of services rather than a standalone entity.
  3. If a person has the ability to use a service, does that mean there can be no disability discrimination under title III? Answer: no. Places of public accommodations have to start by considering how their facility is used by non-disabled guests and then take reasonable steps to provide disabled guests with a like experience. Further, the Ninth Circuit has held that necessary modifications can include modifications required to ensure enjoyment or minimize discomfort, rather than merely those required to ensure access.
  4. How was the experience of the plaintiff qualitatively different than those without vision impairments? Answer: a person with vision could have checked in immediately using the kiosk but the plaintiff was unable to do so. In fact, the plaintiff had no way of communicating that he had arrived at all. Such uncertainty is a dignitary injury that plaintiff incurred solely because he was unable to see well enough to use the kiosk. Patients with vision could also immediately signal to a phlebotomist behind a closed door that the patient had arrived while blind and visually impaired patients could not do so. Finally, patients with vision received several advantages, including information about their place in line and their expected wait times as well with the ability to share personal information privately, that blind or visually impaired people did not receive.
  5. Is dignitary harm something subject to the ADA’s title III? Answer: an experience resulting in embarrassment and humiliation is exactly the type of harm among the type of injuries that the ADA requires place of the public accommodation to minimize if they can do so without fundamentally altering their goods or services or without incurring an undue burden.
  6. Must a person explicitly request an accommodation in order to have the duty to accommodate activated? Answer: no. In a footnote, the court noted that the duty to look into and provide a reasonable accommodation may be triggered when the need for accommodation is obvious even if no request has been made. The request performs a signaling function that puts public accommodations on notice that an accommodation or modification is necessary. In this case, Quest was aware or should have been aware that the original kiosks were not accessible to blind users.
  7. What is the significance of phlebotomists being able to turn off a function that alerts them by sound that a blind or visually impaired user wanted to check in? Answer: extremely significant because by turning off the sound it essentially negated the ability of a blind or visually impaired user to notify a phlebotomist that someone was outside needing assistance.
  8. What is the significance of the insurance and card scanner being added to the check-in process? Answer: extremely significant because if you are blind or visually impaired and cannot use the kiosk, you cannot use the insurance card scanner either. That is not a like experience.
  9. Is it an affirmative defense to say that the ADA standards do not prohibit the approach taken by the defendant? Answer: yes but the ADA standard has to be related to the facts at hand, which is not the case here. Nothing in the ADA standards deals with kiosks as of yet.
  10. Can an undue burden be an undue administrative burden? Answer: yes. Given the proposed rulemaking currently pending, requiring the defendant to revamp its kiosks twice in a relatively short period of time is an undue administrative burden.
  11. Would plaintiff’s requested modification require the defendant to fundamentally alter its kiosk program? Answer: yes. The defendant would be required to either forgo a scanning function or to obtain entirely new kiosks to accommodate plaintiff requested modifications. Also, courts have held that where a place of public accommodation firmly offers assistance from a sales associate, independent touchscreens are not required. That said, there has to be a reliable method of quickly and easily summoning a phlebotomist to provide assistance in order to satisfy their ADA obligation.
  12. What is the significance of when plaintiff returned for a second time and things didn’t go quite right? Answer: not much because the plaintiff already knew the drill so to speak in terms of how everything operates. So, even though things didn’t go exactly according to plan, the plaintiff still knew how to access the services if he had to.
  13. What remedies did the court order? Answer: the court first ruled that title III of the ADA was violated because the plaintiff did not have the full and equal enjoyment of the defendant’s services and facilities due to their blindness/visual impairment. The court then ruled that the permanent injunction would include the following: A) Quest Diagnostics has to make reasonable efforts to ensure that the swipe system is available on all kiosks where the kiosk is the primary method of check-in. All such kiosks should provide any necessary audio notification at a reasonable audible volume; B) Quest Diagnostics has to ensure that the staff are trained so where a patient using the swipe system is not seen as soon as a phlebotomist is available, the staff will make affirmative offers of reassurance and assistance as early as practicable to such patients. Defendant has to ensure staff are trained so personal information that would otherwise be entered using the kiosk system should not be requested in the waiting room in front of other patients; C) defendant shall make reasonable effort to ensure that the audio message describing how to use the kiosk system plays no less than every five minutes at a reasonably audible volume in each place where the kiosk is the primary method of check-in. Defendant also has to provide reasonably prominent directions describing how to use the kiosk and its system on its website in a manner accessible to blind and visually impaired individuals using screen reading technology. Defendant, where possible, must provide braille instruction regarding how to use the system at each of its facilities; D) defendant has to revise its policies and software so that the bell audio notification to which staff cannot be turned off until they have implemented modifications such as screen readers or other technology that make the kiosks independently accessible to class members; E) plaintiff’s representative may monitor the defendant’s facilities to ensure injunctive relief has been implemented as ordered for the next two years. A dispute resolution mechanism is set up in the event of any problems; F) the court retains jurisdiction for a period of three years to ensure that the defendant has complied with the remedies ordered.



  1. Both parties have appealed the case to the Ninth Circuit.
  2. In a way, this case resembles the primary jurisdiction cases we have talked about in some of our blog entries, such as here. In a primary jurisdiction case, the argument goes that nobody has to do anything until the federal government gives guidance. That defense generally goes nowhere. However, that defendant did go somewhere here because rulemaking is pending. However, just because rulemaking is pending, doesn’t mean the rules will actually get done. We also don’t know what will happen in the 2024 elections. Finally, the United States Supreme Court is considering cases raising the question of whether Chevron deference will continue to be a thing. Therefore, it isn’t a slam dunk that this line of reasoning will be all that persuasive on appeal. In other words, an argument can be created that you cannot have a primary jurisdiction doctrine if Chevron deference is no longer a thing.
  3. The case is an example of how a kiosk can be so integrated into the way a place of public accommodation operates that the kiosk inaccessibility can create ADA liability issues for the place using the kiosk.
  4. Inability to utilize a service is not required under title III. Title III of the ADA requires places of public accommodation to ensure enjoyment or minimize discomfort for persons with disabilities attempting to use their service.
  5. Magic words are not required to request an accommodation.
  6. Interesting that §504 of the Rehabilitation Act was not involved as the facility undoubtedly takes federal funds. I don’t think causation, i.e. solely by reason of, would have been a barrier. For that matter, the lack of emotional distress damages being available under the Rehabilitation Act per Cummings, here, would not be a barrier either because this is an injunctive relief case. The reason §504 could have been a useful tool to go with is that §504 requires all of the operations of the entity to be meaningfully accessible to a person with a disability when it comes to an entity principally engaged in the business of providing healthcare, which arguably Quest Diagnostics is.
  7. Generally speaking, I think of undue burden as being financial and fundamental alteration/undue administrative burden as turning the operations of the business upside down. Here, the court seems to create three categories. Undue financial burden, undue administrative burden, and fundamental alteration. I haven’t seen that before. It will be interesting to see if this comes up on appeal.
  8. With respect to tester standing, we are waiting on the decision in the Laufer case, which we discussed here.
  9. There are some notable gaps in the remedies as certain people with disabilities do not benefit from the remedies proposed by the court even if they have vision loss. That is, the whole system doesn’t work if you are both deaf and blind and such individuals do exist. The most notable deaf/blind individual is perhaps Haben Girma, a Harvard educated lawyer and motivational speaker. Even with the remedies ordered in this case, I don’t see how she uses the Quest Diagnostics system. Also, the swipe system doesn’t work terribly well if you have motor issues, such as hand tremors or Parkinson’s.
  10. It has been true for decades that only 10% of the blind know braille and those figures have not changed much over time.
  11. In the remedies section, there are all kinds of words that are hard to figure out what they mean and those phrases don’t appear to be terms of art, such as: 1) “reasonable effort;” 2) “reasonable audible volume;”3) “as early as practicable;” 4) “where possible;” and 5) “reasonably prominent directions.” None of these terms are ADA terms of art and are susceptible to a wide range of interpretations.
  12. Expert testimony can be critical in these kinds of cases. In the interest of full disclosure, I am a member of the Kiosk Manufacturers Association Accessibility Committee and from what I have learned, it isn’t entirely clear to me that the costs to change out these kiosks would be an undue burden to Quest Diagnostics. Remember, you look to the entire resources of the place of public accommodation in deciding whether an undue burden exists. As mentioned above, the court seems a bit confused about what an undue burden is. This could be another issue that we see on appeal.
  13. The moral of the story is to get people with disabilities involved early in any kind of processes so that you can ensure that the process is meaningfully accessible to people with disabilities.
  14. When it comes to using an iPad (iPads have to be replaced frequently as consumer models change yearly), make sure your business has more than one data port.
  15. Whether dignitary injury is a thing under title III, is the subject of much litigation and jurisdictions may vary on how they handle that.
  16. Is the kiosk really a separate program of Quest Diagnostics? An argument can be made that it isn’t (the intake process is the program). Also, program accessibility is not the issue under title III of the ADA nor is it under §504 to Rehabilitation Act (for reasons unknown, §504 was not a part of this case). It will be interesting to see if this comes up on appeal.

One of the hot areas in title I of the ADA is the question of whether an employer has a mandatory duty of reassignment to a vacant position where the employee is no longer qualified per the ADA for that position. The circuits are split on that, so it is just a matter of time before the United States Supreme Court deals with the issue. The blog entry of the day is EEOC v. Methodist Hospitals of Dallas, a published decision from the Fifth Circuit decided on March 17, 2023, here. As usual, the blog entry is divided into categories and they are: Facts; Barnett framework; interactive process breakdown; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the sections.





Methodist is a regional network of hospitals with over 7,500 full-time employees. In 2012, Methodist had no detailed policy concerning the ADA, nor did Methodist provide ADA training to its employees. Accordingly, there was no formalized process for assisting disabled employees. If injured employees could not return to work, they could request short-term disability benefits and leave under the Family Medical Leave Act (FMLA), administered by third parties Lincoln Financial Group and the Reed Group, respectively. If an employee’s disability required permanent reassignment, the employee was to compete for job openings pursuant to Methodist’s policy to hire “the most qualified applicant available” for every vacancy.

For vacant positions, Methodist’s human resources department (HR) reviewed all applications, eliminated those that did not meet the requisite qualifications, and forwarded the remaining applications to the hiring manager. The hiring manager made the final selection, but generally did not input any notes regarding the applicants, simply writing the word “[o]ffer” beside the name of the candidate he or she found most qualified.

In 2008, Methodist hired the plaintiff as a patient care technician. I March 7, 2012, plaintiff injured her back on the job while turning a patient. From there, everything went downhill. She applied for FMLA leave and repeatedly asked her supervisor for accommodations or assistance with the more strenuous task required. Her supervisor set up a call between plaintiff and an HR employee who offered to guide the plaintiff in seeking other work. That led to a conversation with the HR director and plaintiff’s supervisor whereby the HR director informed plaintiff’s supervisor the plaintiff should just resign.

She then began applying for other jobs that were vacant but was not selected. Eventually, the employer gave the plaintiff to opportunities to apply for personal leave but plaintiff never responded to those letters. When she was terminated, plaintiff filed with the EEOC and the EEOC brought suit.


Barnett Framework

  1. In U.S. Airways v. Barnett, here, the Supreme Court dealt with the question of the reasonable accommodation of reassigning a person to a vacant position when faced with a seniority system. In analyzing that question, the approach the Supreme Court took was to first evaluate whether the plaintiff could show that an accommodation was reasonable on its face, i.e. ordinarily or in the run of cases. Second, if the plaintiff could show that requested accommodation is reasonable in the run of cases, then the defendant has to show that special circumstances demonstrating undue hardship in the particular circumstances exist so as to justify not going through with the reassignment. Third, if the plaintiff cannot demonstrate the requested accommodation is reasonable in the run of cases, the plaintiff remains free to show that special circumstances warrant a finding that the requested accommodation is reasonable on the particular facts even though the ADA does not trump the reassignment request in the run of cases.
  2. In Barnett, the Supreme Court held at step one that it would not be reasonable in the run of cases for the reassignment in question to overrule the rules of a seniority system. However, at step two, the Supreme Court remanded for a determination as to whether the employee could show special circumstances so as to justify an exception to the employer’s seniority policy.
  3. The court agrees that mandatory reassignment in violation of the defendant’s most qualified applicant policy is not reasonable in the run of cases because it would compromise the hospital’s interest in providing excellent and affordable care to patients. It would also be unfair to the hospital’s other employees.
  4. The majority of circuits dealing with the issue of mandatory reassignment and an employer’s policy of hiring the most qualified applicant have decided that the most qualified applicant policy prevails. Those circuits include the Eighth Circuit (but see thoughts/takeaways section), 11th Circuit, and the Fourth Circuit. The 10th Circuit and the Seventh Circuit have come down in favor of mandating reassignment to a vacant position for which the person with a disability is qualified for.
  5. The majority of circuits use various reasons to support their position, including: 1) the ADA is not an affirmative action statute; 2) the ADA does not require reassignment without competition for, or preferential treatment of, persons with disabilities and does not require affirmative action; 3) the ADA only requires that an employer allow a person with a disability to compete equally with the rest of the world for a vacant position; 4) in the case of hospitals, the well-being and even the lives of patients can depend on having the best-qualified personnel; 6) undermining a hospital’s best qualified hiring or transfer policy imposes substantial costs on the hospital and potentially on patients; 7) preferential treatment for persons with disabilities under the ADA must be extended only as necessary to provide employees with disabilities with the same opportunities at their nondisabled colleagues; and 8) preferential reassignment improperly sets up the ADA as a sword that upends entirely reasonable, disability-neutral hiring policies and the equally reasonable expectations of other workers.
  6. Defendant’s disability-neutral policy stabilizes employee expectations by inviting, rewarding, and protecting the formation of settled expectations regarding hiring decisions. Such discretion is fundamental to the employer’s freedom to run a business in an economically viable way. Finally, a most qualified applicant policy in a nonprofit, acute care hospital promotes the prevention of infection, illness, and medical error. It also advances the safety of hospital employees and the health of the patients and communities they serve.
  7. The 10th Circuit view of viewing a most qualified applicant policy as something significantly different from a seniority system as something being necessary because it otherwise reads the reassignment to a vacant position out of the ADA’s definition of reasonable accommodation, just doesn’t wash. The reason it doesn’t fly is that step two of the Barnett analysis still permits a plaintiff to prevail even if they do not get past step 1.
  8. The District Court erred by not addressing the second step of Barnett. That is, the District Court on remand must focus on whether the EEOC can raise a genuine dispute of material fact as to whether there are special circumstances warranting an exception to the most qualified hiring policy.


Interactive Process Breakdown

  1. Once an employee presents a request for an accommodation, the employer must engage in the interactive process to determine what reasonable accommodations are available. That process must identify the precise limitations resulting from the disability and the potential reasonable accommodations that can overcome those limitations. Both parties have to exchange information to craft a reasonable accommodation. Finally, where the employee causes the breakdown in the interactive process, the employer has not violated the ADA.
  2. While the defendant was required to engage in the interactive process and did so, the plaintiff caused a subsequent breakdown in the interactive process by failing to respond to the defendant’s letters offering her additional leave.
  3. Lots of evidence exists that the hospital engaged in the interactive process over a six-month period and only terminated the plaintiff following her failure to respond to two letters, two months apart, regarding the hospital’s offer of additional unpaid leave.
  4. While it is true that the hospital was not always immediately responsive to plaintiff’s inquiries during her FMLA leave, none of those actions terminated the interactive process.
  5. An employer ends the interactive process when it creates an objectively reasonable perception that the process is clearly at an end. While it is true that the hospital should not have told the plaintiff to resign, that statement was made prior to the hospital’s offer of additional personal leave and there was no indication that the statement was a final and unreviewable decision regarding plaintiff’s disability. In fact, plaintiff continued to send medical reports and apply for vacant positions after the conversation occurred.
  6. The court does not need to determine if the hospital’s offer of unpaid leave was itself a reasonable accommodation because the plaintiff withdrew from the process before the ultimate accommodation could be offered by the hospital.



  1. The case settled on August 30, 2023.
  2. The Eighth Circuit may be split within itself. Compare Cravens v. Blue Cross and Blue Shield, 214 F.3d 1011 (8th Cir. 2000) with Huber v. Wal-Mart Stores, 486 F.3d 480 (8th Cir. 2007). The various circuits vary on what to do in this kind of eventuality. It seems that both cases are still good law as Huber cites to Cravens favorably. Also, Cravens requires employers to affirmatively respond to plaintiff’s request for assistance to help find other jobs in the company.
  3. I don’t agree with the Fifth Circuit that the Seventh Circuit view on mandatory reassignment is dicta. The statement of the Seventh Circuit referred to by the Fifth Circuit seems to me very much a part of the Seventh Circuit’s decision.
  4. I have no idea what “the run of cases,” actually means, though I see it all the time in the case law.
  5. It is hard to believe that the current configuration of the Supreme Court would say that the ADA would trump a most qualified policy. Even so, I would expect this issue to reach the Supreme Court eventually.
  6. Magic words are not required to begin the interactive process.
  7. When the interactive process ends is governed by an objective standard.
  8. It is absolutely mind-boggling to me that the hospital in this case had: 1) no formalized process for assisting employees with disabilities; 2) no detailed policy concerning the ADA; and 3) no ADA training provided to its employees.
  9. Accommodations compensate for limitations but they rarely overcome them.
  10. I have seen case law recently saying that an ADA violation occurs where an employer forces a person onto a leave rather than reasonably accommodates the person with the disability when that person with a disability desires to be reasonably accommodated per the ADA.

At least once a month, I get a phone call where a judge is treating a person with a disability in their courtroom in a hostile way. The person always wants to know what can be done about it and whether judges are allowed to do that. I have talked before going after the judiciary for disability discrimination, such as here, and it isn’t an easy thing to do, see here, though it is possible. This case, Mergl v. Wallace, Mergl v. Wallace-Judge wrongful treatment of pwd attorney (how I named the file),  decided by the United States District Court for the Western District of Pennsylvania on September 29, 2023, is worth looking at. As usual, the blog entry is divided into categories and they are: facts; separate individual categories discussing the court’s reasoning as to why each incident did not support an ADA or Rehabilitation Act claim; court’s reasoning that sufficient facts not alleged to support a claim of general harassment; court’s reasoning that even if an ADA title II claim existed, plaintiff could not show deliberate indifference; court’s reasoning that the plaintiff stated a standalone equal protection claim; court’s reasoning that no relief exists under the equal protection clause; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the sections.





  1. Incident 1: February 11, 2020 The first incident at issue stems from Plaintiff’s in-court appearance before Wallace on February 11, 2020. Plaintiff had triple booked his own calendar and was scheduled to appear in three state court courtrooms at the same time. Plaintiff was scheduled to appear before Judge Ronald D. Amrhein, also of the Court of Common Pleas of Mercer County, and when Plaintiff reached out to Judge Amrhein to rectify this conflict, Plaintiff was given permission to appear late. Plaintiff pleads that he was under the impression that Judge Amrhein’s staff would inform Wallace 2 Whether claims may be brought against government officers in their individual capacities under Title II of the ADA remains an open question. Durham, 2023 WL 6108591, at *2 n.12. The claims here as to Wallace are against him only in his official capacity. (ECF No. 30, ¶ 19). Case 2:21-cv-01335-MRH Document 40 Filed 09/29/23 Page 7 of 31 8 that he would be appearing late. But when Plaintiff proceeded to Defendant’s courtroom, he was scolded by Wallace. Wallace went so far as to threaten him with a contempt hearing if Plaintiff were late in the future. (ECF No. 30, ¶ 41).


  1. Incident 2: March 11, 2020 On March 11, 2020, Plaintiff had double booked his own calendar once again. Plaintiff requested a continuance as to a judicial proceeding before Wallace, but Wallace denied this motion. Plaintiff then arranged for what he described to be a “qualified attorney” to represent his client before Wallace because of the conflict rather than appearing himself, but Wallace responded by ordering a Rule to Show Cause why Plaintiff should not be held in contempt for his failure to Case 2:21-cv-01335-MRH Document 40 Filed 09/29/23 Page 8 of 31 9 appear personally. Wallace later dismissed the Rule to Show Cause without taking any adverse action against Plaintiff.


  1. Incident 3: August 3, 2020 Plaintiff was involved in a car accident on July 9, 2020. This accident left Plaintiff with a variety of injuries, including blurred vision, memory problems, and headaches. Because of these ailments, he was advised to limit himself to a maximum of three hours of cognitive activity per day. Case 2:21-cv-01335-MRH Document 40 Filed 09/29/23 Page 9 of 31 10 On August 3, 2020, Plaintiff had a status conference in a pending case before Wallace, and Wallace allegedly stated during the conference that he (Wallace) had received a “disturbing email” notifying Wallace that Plaintiff had requested a continuance of a hearing in front of another judge. In response to learning about this email, Wallace allegedly scolded Plaintiff, suggesting that Plaintiff should be held in contempt for requesting the continuance. When Plaintiff tried to explain the car accident and its aftereffects, Wallace stated, “I don’t care” and left the room. (Id. ¶ 62)


  1. Incident 4: August 10, 2020 Plaintiff appeared in front of Wallace on August 10, 2020 for a pretrial status conference in a pending court case. Plaintiff requested a thirty-day continuance for a trial, which was scheduled to begin the very next day. Wallace initially denied the request, and an oral back and forth between Plaintiff and Wallace ensued. Wallace allegedly scolded Plaintiff, stating that (1) Plaintiff’s medical documentation was not sufficient because it had not been signed by “a real doctor;” (2) Plaintiff appeared “fine” to Wallace; (3) Plaintiff was “milking” his disability; (4) Plaintiff’s client should get his money back; and (5) Wallace would not provide an accommodation until Plaintiff provided medical documentation that Wallace personally deemed satisfactory. (Id. Case 2:21-cv-01335-MRH Document 40 Filed 09/29/23 Page 10 of 31 11 ¶¶ 75.1–75.14). Wallace also asked Plaintiff “[w]hy [he wasn’t] treating around here like the rest of us?” (Id. ¶ 74.6). Plaintiff’s Amended Complaint adds that Plaintiff’s client was next to him during this exchange and asserts in conclusory fashion that Wallace generally does not treat other attorneys under similar circumstances in the same manner. (Id. ¶ 78–81)


  1. Incident 5: August 24, 2020 On August 24, 2020, Plaintiff filed a Complaint against Wallace with the United States Department of Justice (“DOJ”). On September 2, 2020, Plaintiff filed a motion asking Wallace to recuse himself from all of Plaintiff’s cases because of the pending Complaint with the DOJ. Case 2:21-cv-01335-MRH Document 40 Filed 09/29/23 Page 11 of 31 12 Wallace refused to recuse himself from these cases and issued an Order of Court without a hearing. (ECF No. 30, ¶ 85). The Amended Complaint fails to set out the topic or content of that Order.


  1. Incident 6: Events Post-filing of the Original Complaint in this Court, New to Plaintiff’s Amended Complaint is Incident 6. Plaintiff’s allegations here are, generously described, very barebones, noting without elaboration only that Wallace allegedly told Case 2:21-cv-01335-MRH Document 40 Filed 09/29/23 Page 13 of 31 14 Plaintiff’s clients and other professionals that Plaintiff “is not allowed in [his] courtroom.” (ECF No. 30, ¶ 94). Plaintiff, in spite of plainly being in a position to know, sets forth no details as to such matters, including the identity of those involved.


Plaintiff sued alleging violations of title II of the ADA and the Rehabilitation Act, including retaliation. The court originally dismissed the claims with leave to amend. When the complaint was amended, plaintiff added an equal protection claim.




Court’s Reasoning That Incident 1 Did Not Violate the ADA or the Rehabilitation Act


  1. The complaint admits that the entire episode has its origins in plaintiff triple booking his own calendar and states no connection between that scheduling choice and any disability. Plaintiff does not plead any facts plausibly showing that he was denied access to the courts through this incident. Further, the judge’s comment about potential future events cannot be fairly read to allege either deliberate indifference to ADA rights, nor can it be considered severe and pervasive.



Court’s Reasoning That Incident 2 Did Not Violate the ADA or the Rehabilitation Act


  1. Plaintiff adds in the amended complaint that the judge did not treat non-disabled attorneys in similar circumstances in the way that he treated the plaintiff.
  2. Plaintiff was not denied access to the courts and the asserted disability was wholly unrelated to plaintiff’s self-generated conflict in his own schedule.
  3. There was no connection stated between any disability and plaintiff’s scheduling choices.
  4. The judge dismissed the rule to show cause without utilizing that proceeding to take any adverse action against the plaintiff.



Court’s Reasoning That Incident 3 Did Not Violate the ADA or the Rehabilitation Act


  1. While the judge’s remarks were not kind, there is no connection between the unfriendly dialogue and plaintiff’s ability to accept the courts. Plaintiff’s amended complaint shows that he was not denied access to the courts in the case before the judge nor in the case before a different judge. There is also no indication in the amended complaint that the judge actually denied plaintiff any requested accommodation.
  2. The judge’s unfriendly behavior, resulting in no limitation on the plaintiff appearing as a lawyer in any court, does not rise to a level supporting a plausible claim under the ADA.



Court’s Reasoning That Incident 4 Did Not Violate the ADA or the Rehabilitation Act


  1. The judge granted the very continuance that the plaintiff was seeking.
  2. For an ADA claim to exist, there has to be a denial of an accommodation or an underlying service.
  3. The granting of the continuance ensured that the plaintiff was not denied a benefit or service of the courts based on the disability, and despite the comments plaintiff says that he had to endure, his disability was actually accommodated. So, despite the judge’s allegedly confrontational language, there was no harm stemming from the incident connected to plaintiff’s ability to accept the courts or receive a service or benefit from the courts. In fact, plaintiff asked for a 30 day continuance and received it.



Court’s Reasoning That Incident 5 Did Not Violate the ADA or the Rehabilitation Act


  1. The claim is a straightforward attack on the judge’s alleged refusal to recuse in cases involving the plaintiff and therefore, is barred by the Rooker Feldman doctrine.
  2. The Rooker Feldman doctrine applies where: 1) the federal plaintiff lost in state court; 2) the plaintiff complains of injury caused by the state court’s judgment; 3) though judgment rendered before the federal suit was filed; and 4) the plaintiff is invited the district court to review and reject the state judgments. All of these elements are satisfied.



Court’s Reasoning That Incident 6 Did Not Violate the ADA or the Rehabilitation Act


  1. Plaintiff does not allege an actual denial of a service or benefit of the courts.
  2. Retaliation won’t fly either because there was no indication that: 1) the judge actually prevented the plaintiff from entering his courtroom; 2) any potential client declined to retain the plaintiff; or 3) any client discharge the plaintiff based on this incident.



Court’s Reasoning That Sufficient Facts Were Not Alleged to Support a Claim of General Harassment


  1. To state a claim under title II of the ADA, the plaintiff must plead that: 1) he is a qualified individual; 2) with a disability; 3) who was excluded from participation in or denied the benefit of the services, programs, or activities of a public entity, or who was subjected to discrimination by such an entity; 4) by reason of his disability. Under 3), a plaintiff must sufficiently allege that he was either denied the benefits of the services, program, or activities of a public entity OR falls within a catchall clause of being subjected to discrimination by such an entity. The catchall clause prohibits all discrimination by a public entity regardless of context.
  2. It is possible that title II’s catch-all provision could allow for a general harassment claim. For such an inquiry, the courts would look to the totality of the circumstances, which includes: 1) the frequency of the discriminatory conduct; 2) its severity; 3) whether it is physically threatening or humiliating or a mere offensive utterance; and 4) whether it unreasonably interferes with the underlying right at issue.
  3. Courts cannot turn anti-discrimination statutes into civility codes. Accordingly, courts are reluctant to hold defendants liable for discrimination unless the claimed discrimination leads to the actual denial of a statutory or constitutional right or benefit.
  4. The amended complaint fails to plausibly show that plaintiff’s interactions with the judge fundamentally altered the nature of plaintiff’s relationship with the Pennsylvania judicial system. Many of the incidents had to do with multiple booking by the plaintiff simultaneously and in the other incidents, plaintiff did not actually suffer any adverse procedural outcome.



Court’s Reasoning That Even If a Title II Claim of the ADA Existed, Plaintiff Could Not Show Deliberate Indifference


  1. Showing deliberate indifference means a plaintiff has to show: 1) knowledge that a federally protected right is substantially likely to be violated; and 2) failure to act despite that knowledge.
  2. The amended complaint does not plausibly demonstrate that the judge actually knew that a federally protected right was likely to be violated by his statements or actions.
  3. Nothing in the amended complaint plausibly shows that the judge engaged in a pattern of endangering federally protected rights of others or that the risk of harm was so great and so obvious that failing to provide the plaintiff an accommodation constituted deliberate indifference.
  4. The judge’s dismissal of the rule to show cause and his decision to grant all of the plaintiff’s continuances show that the plaintiff was not ultimately harmed in any tangible fashion.



Court’s Reasoning That the Plaintiff Stated a Standalone Equal Protection Claim


  1. When a classification is made based upon an individual’s disability, the differential treatment associated with that classification is subject to rational basis review.
  2. The Third Circuit has been cautious about upholding dismissals prior to discovery. That means the plaintiff only has to plausibly demonstrate that he was treating differently from those similarly situated and that the relationship between the differential treatment and the underlying governmental purpose plausibly appears irrational. The proper inquiry at the motion to dismiss stage is whether the amended complaint construed liberally alleges a plausible claim under the equal protection clause.
  3. Plaintiff at the motion to dismiss stage, does not need to negate all possible basis for the offending conduct as he must do at summary judgment or at trial when the plaintiff has been classified in the rational basis category.
  4. Plaintiff has alleged repeated instances of differential treatment from the judge in the form of verbal abuse and the imposition of what is arguably a separate set of rules applicable to him in the form of requiring the plaintiff to attend effectively the start of contempt proceedings, and to provide rather complex explanation for any anticipated absences.
  5. Plaintiff repeatedly asserted in his amended complaint that the judge did not treat attorneys without disabilities in the same manner. Accordingly, the judge’s treatment of the plaintiff could plausibly constitute a differential classification.
  6. The judge’s treatment of the plaintiff plausibly illustrates a bare desire to demean, belittle, and harass plaintiff. There is also absolutely no indication of any of that advancing the efficiency of the judge’s judicial proceedings. Therefore, the factual circumstances underlying the equal protection claim could demonstrate that the judge’s conduct was not rationally related to a legitimate governmental purpose for purposes of stating an equal protection claim.
  7. An equal protection clause claim does not need to be tied to the actual denial of the service or benefit of a governmental entity.
  8. While verbal harassment alone failed to state a claim under the equal protection clause, when there is an associate threat of injury a plaintiff does state a plausible claim for relief.
  9. Plaintiff’s amended complaint plausibly demonstrates a violation of the equal protection clause because the judge applied a different set of procedures to the plaintiff because of his disability.
  10. Plaintiff has adequately stated that he qualifies as an equal protection class of one because: 1) the judge treated him differently from other similarly situated; 2) the defendant allegedly did so intentionally; and 3) there was no rational basis for the difference in treatment.




Court’s Reasoning That No Relief Exists under the Equal Protection Clause


  1. While plaintiff did not sue the judge in his personal capacity, a claim in the judge’s personal capacity would be subject to judicial immunity which is an absolute bar to a suit for money damages. Further, such immunity applies even in the face of malicious or erroneous actions.
  2. Plaintiff cannot overcome judicial immunity because the underlying action at issue was judicial and the lack of jurisdiction is not an issue. The action was judicial because it related to the nature of the act itself (a function normally performed by a judge), and to the expectation of the parties (whether they dealt with the judge in his judicial capacity).
  3. Action subject to judicial immunity can be thrown out at the motion to dismiss stage based upon allegations in the complaint.
  4. Pennsylvania has not waived its sovereign immunity for equal protection claims. Any such waiver has to be explicit and Pennsylvania has not done that in any of their statutes.
  5. Issuing an injunction against the judge is generally prohibited. That is, a state judicial officer cannot be enjoined by a federal court as to acts taken or to be taken into judicial capacity.
  6. The 11th amendment also bars injunctive actions against the State without its consent.





  1. The case is being appealed.
  2. Pleadings that approach fact based pleadings are always preferred in ADA and Rehabilitation Act cases. That is, you want to give the defense enough notice as to what is involved and more facts are better than less.
  3. It is inaccurate to say that people with disabilities are always in the rational basis class. It is curious that Tennessee v. Lane was not cited by the court. Tennessee v. Lane, here, holds that people with disabilities vary their equal protection status depending upon the facts of the case. Further, when it comes to accessing the courts, people with disabilities are at least in the intermediate scrutiny class.
  4. There are many many cases saying that sovereign immunity does not bar injunctive relief against a State entity. This case goes against that trend.
  5. Title II of the ADA does apply to everything that a public entity does.
  6. With respect to the Rooker Feldman doctrine, that is a very narrow doctrine as we discussed here.
  7. Interesting discussion about title II having a catch-all provision. That is not something I see a lot of in the case law and presents an opportunity for plaintiff lawyers.
  8. The equal protection class of persons with disabilities matters because the ADA permits a forced waiver of sovereign immunity should that particular title be proportionate to the harm that the ADA is redressing. That is, a forced waiver is out with respect to employment matters, see here, but with respect to nonemployment matters, a forced waiver may very much be in play depending upon the particular facts, see here.
  9. In many cases, it shouldn’t be that hard for a person with the disability to show that he or she or they is an equal protection class of one. Again, a critical underlying consideration is to figure out what equal protection class a person with a disability falls in.
  10. Is discrimination based upon a protected characteristic, a judicial action, see this blog entry for example. One has to wonder, especially in 2023.
  11. How the case is ultimately resolved on appeal bears watching. We do know from this blog entry, the federal courts are not afraid to look over state courts, see here, if they engage in disability discrimination.
  12. It is a different question if a federal court engages in disability discrimination because outside of hearing loss covered in the Administrative Office of the Courts rules, the federal courts (article III courts I am referring to here), are not subject to the ADA nor are they subject to the Rehabilitation Act. They would be subject to the equal protection clause through the due process clause of the Fifth Amendment. Whether any remedy access is another story.
  13. On the plaintiff side, you have to show that the actions were by reason of a disability with respect to the ADA and solely by reason of disability with respect to Rehabilitation Act. In other words, causation always has to be shown.
  14. What is deliberate indifference varies from jurisdiction to jurisdiction. The leading case on this we discussed here.
  15. Since the equal protection classification of persons with disability varies depending upon the particular facts of the case, plaintiff attorneys in particular should not assume that a person with a disability automatically falls into the rational basis class.
  16. Case law is just about unanimous that the ADA does not allow for individual liability. The exception that I am aware of is here in the 11th Circuit where individual liability is allowed in a retaliation matter where the person doing the retaliation is employed by a nonfederal governmental entity. See here.
  17. There may be room to argue over what is a judicial act, especially if protected characteristic discrimination is involved. An even better argument that a judicial act does not exist occurs if the judge denies a reasonable accommodation/modification request.
  18. I’ve seen many cases saying that sovereign immunity does not apply to injunctive relief, so the case discussed in this blog entry is an outlier that way.
  19. Mergl appears to limit remedies against state judges discriminating against a person by reason of their disability to filing a complaint with the end of the overseeing judicial conduct. Procedural due process might be another possibility.
  20. One has to wonder if this case goes the same way if a protected characteristic other than disability was involved.
  21. Recently, the EEOC issued a guideline on harassment in the workplace, which we discussed here. One of the important things from that guideline is that harassment must be viewed from the person with the protected characteristic point of view.
  22. The whole concept of severe and pervasive can be a bit of a headache as we discussed here.

Today’s blog entry is not on an issue that I have blogged on previously. It deals with the question of what happens when a person leaves employment and was otherwise qualified during that employment, but after the employment ends, some discriminatory action occurs. Does title I apply since the person is no longer otherwise qualified/qualified? The circuit courts are split on this. This blog entry will discuss how this kind of case could go either way. As usual, the blog entry is divided into categories and they are: plaintiff loses: Stanley v. City of Sanford, Florida-facts; plaintiff loses: Stanley-11th Circuit’s reasoning; plaintiff could win: Castellano v. City of New York-facts; plaintiff could win: Castellano-Second Circuit’s reasoning; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.



Plaintiff Loses: Stanley- 11th Circuit’s Facts


When Stanley retired, she continued to receive free health insurance through the City. Under a policy in effect when Stanley first joined the fire department, employees retiring for qualifying disability reasons, such as Stanley’s Parkinson’s disease, received free health insurance until the age of 65. But, unbeknownst to Stanley, the City changed its benefits plan in 2003. Under the new plan, disability retirees such as Stanley are entitled to the health insurance subsidy for only twenty-four months after retiring. Stanley was thus set to become responsible for her own health insurance premiums beginning on December 1, 2020. She filed this suit in April 2020, seeking to establish her entitlement to the long-term healthcare subsidy.



Plaintiff Loses: Stanley v. City of Sanford, Florida-Court’s Reasoning


  1. Title I of the ADA applies to qualified individuals with a disability. As such, it has a temporal qualification. That is, a qualified individual under title I of the ADA, 29 C.F.R. §1630.2(m), is a person who satisfies the requisite skill, experience, and education requirements of the position and can, with or without reasonable accommodation, perform the essential functions of the job. See also, 42 U.S.C. §12111(8)
  2. in 1997, the Supreme Court held that an individual could sue his or her former employer under title VII for a post-employment retaliatory act. That decision doesn’t affect the question before the court because the statutory language of title I of the ADA is different.
  3. Under title I, only someone who with or without reasonable accommodation can perform the essential functions of the employment position that an individual holds or desires is protected from disability discrimination.
  4. “Holds,” and “desires,” are in the present tense. So, a victim of unlawful disability discrimination desires or already has a job with the defendant at the time the defendant commits the discriminatory act.
  5. Title I consistently uses the term “qualified individual,” to refer to active employees or current applicants.
  6. The court recognizes a circuit court split with the Sixth, Seventh, Ninth, and now Eleventh Circuits finding the temporal qualifier dispositive. The Second and Third Circuits (we will discuss the Second Circuit case below), have held to the contrary.
  7. Policy arguments do not empower a court to ignore unambiguous text and the Second and Third Circuits are policy driven decisions.
  8. The amendments to the ADA did not impact the qualified language of title I at all even if it otherwise expanded coverage of who has a disability and changed the causation language.
  9. The Fair Pay Act is of no help either because it doesn’t affect the requirement that a qualified individual be involved when it comes to title I of the ADA.
  10. The court need not address the argument as to when the disability discrimination claim accrued (an argument could have been made that the disability discrimination claim accrued while she was still employed because the handwriting was on the wall), because plaintiff waited too long to make the argument as it only came up in an amicus brief.
  11. Equal protection claim fails because persons with disabilities are in a rational basis class.



Plaintiff Could Win: Castellano v. City of New York-Facts


Various classes of police and fire officers in New York City who retired with disability pensions claimed that the City and applicable pension funds discriminated against them by denying them benefits for more lucrative variable supplement funds available only to retirees who retired after 20 years of service and who did not already receive disability pensions. One of the plaintiffs had an option to make a choice that would have qualified him for the variable supplement funds, but he was never told of that option when he made the choice. The other plaintiffs claimed that the set up itself was discriminatory.



Plaintiff Could Win Too: Castellano v. City of New York Second Circuit’s Reasoning


  1. Title I of the ADA, 42 U.S.C. §12112(a), prohibits an employer or labor organization from discriminating against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment, including the provision of fringe benefits. See 42 U.S.C. §12112(b)(2).
  2. A qualified individual with a disability is defined as an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. 42 U.S.C. §12111(8).
  3. Title I of the ADA failed to specify when a potential plaintiff must have been a qualified individual with a disability when it comes to a claim that the provision of retirement or fringe benefits is discriminatory.
  4. A literal reading of the committee report suggesting that the phrase “at the time of the employment action,” refers to the actual moment when the employer performed the discriminatory act would permit employers to discriminate freely against disabled retirees who had been qualified individuals up to the point of retirement, but who no longer held employment positions and or were no longer able to perform the essential functions of their former employment due to their health condition.
  5. A literal reading would allow an employer to terminate an employee in violation of the ADA and then deny that person fringe benefits because an employee could not bring an ADA claim for the latter violation as a result of not being a qualified employee at the time the action is brought. Such a reading would permit an employer to deny post-employment fringe benefits on the basis of disability to any retiree the day after but not the day before his retirement, which is completely irrational.
  6. The fact is that many fringe benefits are earned during years of service before the employment has terminated but are provided in years after the employment relationship has ended.
  7. Since retired employees who receive fringe benefits no longer work or seek to work for their former employers, they do not need to be able to perform the essential functions or any functions of their former employment. So, provided that retired employees were qualified while employed and on that basis became entitled to post-employment benefits, the purpose of the essential functions requirement is satisfied.
  8. Since fringe benefits are earned for actual service of employment, it is irrelevant whether former employees otherwise eligible for fringe benefits, could also perform the essential functions at or after termination of the employment.
  9. An employee’s entitlement to post-employment fringe benefits arises (as much or more so than does his interest in not facing post-employment retaliation), during the period of his employment.
  10. An interpretation preventing former employees who are no longer qualified individuals from bringing claims of discrimination in the provision of post-employment fringe benefits undermines the plain purpose of ADA §12112(a), (b)(2). Many fringe benefits are paid out to those who no longer work and who are no longer able to work, and some friend benefits are paid out to individuals precisely because they can no longer work. An expansive reading of the dispositive nature of “qualified individual,” would undermine the ADA’s broad remedial purpose to prohibit disability discrimination in all aspects of the employment relationship and leave disabled retirees unprotected from discrimination in the provision of pension, health and life insurance, and other post-employment benefits.
  11. The Second Circuit mentioned the Supreme Court retaliation decision and says that the policies underlying the Supreme Court decision applies with equal force to the fringe benefits situation.
  12. The EEOC has taken the position that qualified individuals include former employees who can no longer perform the essential functions of their former employment when it comes to fringe benefits situations.
  13. The language of the ADA and its legislative history makes it inconceivable that Congress in the same breath would expressly prohibit discrimination fringe benefits, yet allow employers to discriminatorily deny or limit employment benefits to former employees who ceased to be otherwise qualified/qualified at their retirement even though they had earned those fringe benefits through years of service in which they perform the essential functions of their employment.
  14. It is illogical to come up with a decision that excludes a large body of retirees from ADA coverage in light of the ADA’s broad remedial purpose.





  1. This question undoubtedly headed to the Supreme Court, perhaps even with this case.
  2. Stanley is a published decision as is Castellano.
  3. Very hard to say what the Supreme Court would do when faced with this question, even with the configuration of the current Supreme Court being what it is. While it is true that people with disabilities do not fare well when it comes to employment matters at the Supreme Court, they do fare well outside of the employment context. Furthermore, the policy arguments set forth in Castellano and how a literal reading of the ADA makes a shambles of the ADA’s purpose is, to my mind, quite persuasive. It will be interesting to see if a majority of the Supreme Court feels the same way. Also, pretty safe to say that three Justices will find Castellano persuasive rather than Stanley. Where the other votes will come from is not clear. Also, the fact that the many of the Justices are on the older side makes this kind of case a wildcard.
  4. As we have mentioned previously, such as here, persons with disabilities are the only group of people whose equal protection classification changes depending upon the facts of the particular case. People with disabilities may be in the rational basis class but they also may be in a class as high as intermediate scrutiny depending upon the facts. No other group of people changes their classification that way.
St. Louis arch in the springtime against a blue sky.
St. Louis Arch

The blog entry for the week is getting posted a bit later than usual because my daughter came home for a short fall break and went back yesterday. Today’s blog entry is a published decision from the Court of Appeals of the State of California, Fourth Appellate District, in Martin v. Thi E-Commerce LLC, here. The case discusses the question of whether absent a gateway to a physical place, an Internet site is subject to title III of the ADA. The majority holds that it is not. The dissent argues that it is. The case gives an excellent rundown of the arguments for and against, and I thought it would be worth addressing. The facts are really straightforward. As is typical in these cases, you have blind individuals using screen readers claiming that the website is inaccessible. There are no physical stores involved whatsoever. All of the business occurs on the website. As usual, the blog entry is divided into categories and they are: majority opinion holding that absent a gateway, an entity must be a physical place to be subject to title III of the ADA (statutory and regulatory text); majority opinion holding that absent a gateway, an entity must be a physical place to be subject to Title III of the ADA (legislative history and public policy); dissenting opinion; and thoughts/takeaways. All the judges agreed that intentional discrimination was not involved in this case (the Unruh Act can apply by either intentional discrimination or by an ADA violation), and so I am not going to focus on that piece of it. Of course, the reader is free to focus on any or all of the categories. As far as the picture is concerned, the St. Louis Arch is often referred to as the gateway to the West. So, I thought that picture would be appropriate since the gateway concept always comes up in these cases.



Majority Opinion Holding That Absent A Gateway, An Entity Must Be A Physical Place To Be Subject To Title III Of The ADA (Statutory and Regulatory Text).


  1. The ADA, at 42 U.S.C. §12181(7), defines the phrase place of public accommodation in terms of a list of 12 categories, each of which has specific examples.
  2. The relevant federal regulation, 28 C.F.R. §36.104, defines a place of public accommodation and adds that a place of public accommodation is a “facility.” It goes on to define facility as, “all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where a building, property, structure, or equipment is located.” A website is not in any of those categories, which isn’t surprising since the ADA was enacted in 1990 before the Internet took off.
  3. In the 30 years since, websites have become central to American life.
  4. Broad agreement exists that a website is subject to the ADA if it operates as a gateway or nexus to a physical location. However, the federal courts differ considerably on whether a standalone website is subject to the ADA.
  5. Several Circuits have held that title III of the ADA does not require a physical place. Those, circuits include: First Circuit (Carparts Distribution Center v. Automotive Wholesaler’s Association); Second Circuit (Pallozi v. Allstate Life Insurance Company); and the Seventh Circuit in dicta (Doe v. Mutual of Omaha Insurance Company). Those decisions relied on travel services and insurance company being contained within the list of categories with neither of those places necessarily being physical places at the time the ADA was enacted.
  6. The Circuit Courts holding that a physical place is required include: Sixth Circuit (Parker v. Metropolitan Life Insurance Company); Ninth Circuit (Weyer v. 20th Century Fox Film Corporation); Fifth Circuit (Magee v. Coca-Cola Refreshments USA, Inc., which we discussed here); and the Third Circuit (Ford v. Schering-Plough Corporation).
  7. Citing to a case we discussed here, Martinez v. Cot’n Wash, Inc., the court noted: 1) plain meaning of the term “place,” weighs against saying that a place of public accommodation is something other than a physical place; 2) dictionaries overwhelmingly define place as involving a physical location; 3) neither title III nor any implementing regulations provide a different definition of the word; 4) technology when the ADA was passed in 1990, suggests that Congress was unaware that the term carries a connotation of beyond a physical space and therefore could include certain sales and retail establishments from the scope of title III based upon a lack of connection to a physical space; 5) there were many businesses operating outside of brick-and-mortar premises in 1990, including some that have been in operation for decades, such as mail order catalogs. Nevertheless, Congress decided to use the term “place,” the plain meaning of which involved a physical space and can easily be understood as an intentional inclusion of businesses without any physical presence; 6) the United States Supreme Court recently noted that “place,” connotes a physical space with respect to a New Jersey law protecting against discrimination in places of public accommodation.
  8. Carparts is not persuasive because if the legislature meant to radically depart from the overall thrust of including solely physical locations, a legislature would not do so by burying examples in the list with the hope that judicial explorers would find it someday. Instead they would make it much more explicit. Furthermore, the travel agency is and often is a physical space open to the public.
  9. To the extent modern usage has evolved to allow the word “place,” to refer to a website, it would be strained to say that that is what Congress knew when the law was enacted in 1990.



Majority Opinion Holding That Absent A Gateway, An Entity Must Be A Physical Place To Be Subject To Title III Of The ADA (Legislative History and Public Policy).


  1. The Internet did not exist at the time the ADA was passed. So, the legislators who voted on the ADA had no conception of the digital revolution coming.
  2. The line about the ADA evolving with technology is just one line buried in the committee report written at a time when the Internet revolution had not yet occurred.
  3. At the federal level, the history of the Internet is a hands-off treatment. That can be seen in the Telecommunications Act of 1996 and the Internet Tax Freedom Act of 1998.
  4. When Congress amended the ADA in 2008, it took no legislative action to clarify just what is a place of public accommodation.
  5. While the Department of Justice has said that the ADA applies to Internet sites, it has not come up with regulations despite filing numerous amicus briefs [and I note for that matter, even settling many cases].
  6. No later than 2010, Congress and DOJ both recognized the need to clarify whether and under what circumstances a website constitutes a place of public accommodation. They also agreed that such clarification should take a broad and inclusive approach. Yet they failed in the 12 years that followed to provide any such clarification through regulation or statute.
  7. The ADA just does not address Internet accessibility in the context of title III, though §508 of the Rehabilitation Act certainly does.
  8. The FCC has taken a similar, hands-off approach to regulating the Internet.
  9. Congress, across multiple administrations and both political parties, has maintained a consistent publicly stated policy of avoiding passing laws interfering with the free market based development of the Internet. Also, relevant regulatory agencies have either avoided regulating the Internet or have deliberately chosen not to act. Therefore, the only reasonable conclusion is that Congress intended for the ADA not to apply to websites.
  10. Subjecting standalone website to title III of the ADA would impose costs on businesses and society generally. The weighing of those costs and benefits is better left to legislature and regulatory entities rather than the judiciary.


Dissenting Opinion (Judge Delaney)


  1. Today, dictionaries are now realizing that the term “place,” can include something beyond a physical space.
  2. Just because a meaning of a statute may be more “natural,” or more commonly used, does not render that statute unambiguous.
  3. At least some of the types of businesses listed in 42 U.S.C. §12181(7) operated exclusively by telephone or by written correspondence at the time the ADA was enacted. Today, numerous businesses listed in those categories are quite capable of existing without operating in a physical space. So, their inclusion in the statute at a minimum leaves room to reasonably infer that Congress did not intend a physical limitation.
  4. Another indicator that Congress did not intend a physical limitation, is the open ended language at the end of each enumerated category that begins with, “or other….”
  5. While Congress chose to limit the categories of private entities to which title III of the ADA was applied, it expressly allowed for its application to types of entities not specifically listed so long as they fell within the scope of one of the enumerated categories.
  6. Regulations are not a definitive indicator of congressional intent. After all, it is not unusual for regulations to misinterpret or run counter to statutory language and congressional intent.
  7. A court must choose the construction of the statute that comports most closely with the apparent intent of the lawmakers, with a view to promoting rather than defeating the general purpose of the statute.
  8. The clear, sweeping, comprehensive purpose and intent of the ADA is furthered by an interpretation that does not limit the ADA’s application to brick-and-mortar public accommodations. In fact, it would be defeated by an interpretation that persons wishing to access goods and services of a public accommodation with a physical location open to the public are protected by the ADA while those attempting access identical goods and services from an identical public accommodation lacking a physical location open to the public are not.
  9. Applying the ADA only to public accommodation with a physical location is effectively a determination that Congress intended to freeze the legislation in time, applying it only to life as it existed when it was enacted. Such a course of thinking, is problematic and curtails the envisioned integration of people with disabilities into all aspects of everyday life.
  10. Congress made clear that technological advances would impact a public accommodation’s responsibilities. For example, while auxiliary aids and services was defined in the legislation, the definition was intended to provide examples only. To the extent technological advances rendered affordable or readily available auxiliary aids or services previously unaffordable or unavailable, Congress explained that the change would require covered entities to provide it.
  11. To conclude that Congress intended the legislation to evolve with technological and other advancements regarding the provision of auxiliary aids and services by public accommodations, but not with the same types of advancements regarding public accommodation themselves is unsound. Indeed, the ADA was intended to be future driven.
  12. Any statutory interpretation leading to absurd consequences must be avoided.
  13. Post enactment occurrences noted in the majority opinion have little if any value. The Supreme Court has said that the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.
  14. Expanding the ADA to require accessibility of websites would not work against innovation and a naturally competitive free market because it would further expand the market through additional consumers who have been so far effectively excluded from the ever-expanding aspect of the economic and social mainstream of American life.
  15. DOJ did issue propose regulations dealing with Internet accessibility, though it did withdraw the regulations to study the matter further.
  16. Legislative silence is a poor beacon to follow when construing a statute
  17. Citing to South Dakota v. Wayfair, the dissent noted that the Internet’s prevalence and power have changed the dynamics of the national economy.
  18. E-commerce is not the only way in which the Internet and other factors have revolutionized everyday life. The Internet also provides one of the central means of information gathering and communication in our culture. The Internet is now practically unavoidable in daily life. While some physical locations ultimately reopened after the pandemic, many others remain as online only offerings. Adding to those offerings, is an ever-growing presence of exclusively Internet-based goods and services and industries such as education, health, professional services, transportation, travel services, and entertainment.
  19. There can be no denying that in today’s world that the Internet is central to every aspect of the economic and social mainstream of American life. While Congress could not have understood that at the time of the ADA, it did understand that the world around us would change and believed that the nondiscrimination mandate contained in the ADA should be broad and flexible enough to keep pace.
  20. Interpreting the ADA to have no physical location restriction and applying it to any qualifying public accommodation irrespective of its chosen method to transact with customers and clients, is the only interpretation of the legislation that promotes and effectuate the law’s purpose and avoids (citing to a case that we discussed here– Scribd), severely frustrating congressional intent that individuals with disabilities fully enjoy the goods, services, probative, and advantages available indiscriminately to other members of the public.





  1. I don’t know how long the process is for an opinion to become certified for publication. I can tell you that just within the last couple of months that there have been lots of developments with respect to Internet accessibility in the regulatory environment. For example, several federal agencies have said in guidances that they are serious about Internet accessibility for people with disabilities. Also, DOJ did issue propose regulations dealing with Internet accessibility for title II entities, which we discussed here.
  2. It is about time that someone cited South Dakota v. Wayfair in an Internet accessibility case. We predicted that possibility over five years ago, here. What I do find strange is that while the dissent cited the opinion, the opinion badly missed an opportunity to cite from the nearly two dozen instances in the opinion making clear that public accommodation is not limited to a physical space. The dissent should have availed itself of that opportunity.
  3. One of the strongest arguments against a standalone website not being subject to title III of the ADA is that Congress passed up a chance to add that in the 2009 amendments to the ADA.
  4. The majority opinion does note the trend is overwhelming that an Internet site acting as a gateway to a brick-and-mortar location is subject to title III of the ADA. The problem is that what is a gateway or nexus varies from jurisdiction to jurisdiction and from court to court.
  5. There is a Circuit Court split on the issue of whether standalone websites are subject to title III of the ADA, so it will have to be decided by the United States Supreme Court. Now that South Dakota v. Wayfair has been explicitly raised by the dissenting opinion, attorneys on the plaintiff side should take advantage of that and dive into the opinion to show that a place of public accommodation need not be a physical space. I suppose they could just cite my blog for their proposition:-)
  6. The dissenting opinion discussion of auxiliary aids and services specifically being subject to the evolution of technology is not something I have seen before, but it is something that plaintiff’s attorneys should add to their arguments.
  7. I would expect an appeal to the California Supreme Court. The majority and dissenting opinions are an excellent preview of the arguments that will also be made ultimately to the United States Supreme Court. It is only a matter of time before the United States Supreme Court gets a case like this. I am not going to predict what they are going to do. As I have mentioned before, plaintiff side attorneys would have to be out of their minds not to utilize in a big way South Dakota v. Wayfair in their arguments before the Supreme Court, especially since it now has been explicitly brought up in a dissenting opinion.
  8. The Supreme Court decision in Laufer, the oral argument we discussed here, will not necessarily affect the arguments made by the majority and dissenting opinions in this case, but it might.

Today’s blog entry will discuss the oral argument in Acheson Hotels v. Laufer, which took place on October 4, 2023. We previously mentioned the appellate case here (links to the blog entries therein). The two categories of this blog entry are questions from the Justices and thoughts/takeaways. Of course, the reader is free to focus on either category.



Questions from the Justices


  1. Justice Thomas and Justice Jackson both wanted to know why the case should be decided by the Supreme Court at all since both parties agree that the case is moot.
  2. Justice Sotomayor wanted to know if an advisory opinion wasn’t being requested. She also wanted to know if mootness needs to be decided before standing or the other way around.
  3. Chief Justice Roberts was of the opinion that standing should be decided before mootness as a purely logical matter.
  4. Justice Jackson wanted to know what would happen if they found the case moot and then therefore vacated the opinion below under a doctrine called Munsingwear.
  5. Chief Justice Roberts pointed out that the Supreme Court can decide on its own whether to deal with the standing issue or with the mootness issue first.
  6. Justice Barrett wondered if deciding the case on the merits might not help solve things now because it is a no doubter that a serial Internet filer case will reach the Supreme Court at some point. So, why not get ahead of it.
  7. Justice Alito referred to the case as being dead as a doornail and was worried about the Supreme Court issuing an advisory opinion. Justice Kagan had a similar concern.
  8. Justice Kagan wondered if the Supreme Court could even decide the case in the first place because the case is moot.
  9. Justice Kagan noted that the hotel had a new owner and that the website was now in compliance with the ADA reservation rule.
  10. Justice Jackson wondered if foreseeability of a future case, which was entirely likely, was a sufficient reason to issue an advisory opinion.
  11. Justice Gorsuch wanted to know what kind of allegations with respect to a case like this would be sufficient to give a plaintiff standing. That is, is it an intent to visit the hotel or something else?
  12. Justice Sotomayor wondered if there was a stigmatic harm to an individual seeking information so as to enable an individual to make a subsequent purchase/reservation. She also wondered if a website was the same thing as a sign on a physical property saying that a person is not welcome.
  13. Chief Justice Roberts noted that any intent to return allegations in the complaint could have its veracity assessed during the course of litigation.
  14. Justice Kagan pointed out that the defense was not challenging tester standing as a general principle.
  15. Justice Kagan wondered if you could have standing if the individual is not interested in the service of the facility. For physical facilities the answer is quite clearly yes, so why not the answer the same for websites?
  16. Justice Barrett inquired whether this was a situation where an individual could not sue at all or whether this was a situation that the individual does not get to first base because injunctive relief is the remedy and requires an intent to return.
  17. Justice Jackson wanted to know how a tester with respect to websites was any different than a person testing whether a lunch counter would serve an African-American during the civil rights movement of the 1960s.
  18. Justice Jackson inquired as to whether the intent to return requirement of injunctive relief is with respect to the website or whether it is with respect to the hotel itself.
  19. Chief Justice Roberts pointed out that serial filers are everywhere, so why not decide the issue now because this kind of lawsuit will inevitably reach the United States Supreme Court.
  20. Justice Barrett wondered whether the Supreme Court will ever get a say on tester standing because serial filers are very strategic. Chief Justice Roberts had similar concerns.
  21. Justice Alito inquired as to whether the distinction between the merits of the case v. standing mattered.
  22. Justice Sotomayor wondered whether an ADA tester could ever have standing. She was also not buying the distinction between standing with respect to the Internet v. standing with respect to a physical place.
  23. Justice Kagan inquired whether if making a reservation is the key, why couldn’t a plaintiff make a reservation, then cancel the reservation, and then claim standing?
  24. Justice Kavanaugh pointed out that you could have standing without a cause of action and a cause of action without standing.
  25. Justice Barrett wanted to know whether you needed to make a reservation and be disabled or was it just enough to suffer discrimination of the kind prohibited by the ADA.
  26. Justice Jackson wanted to know whether an online user v. trying to use the service was the proper distinction to make.
  27. Justice Thomas wanted to know what is the difference between a stigmatic and an informational injury.
  28. Justice Kavanaugh wanted to know what to make of the fact that the information given was not discriminatory but it is at the hotel where the discrimination would have occurred. He also wanted to know whether this case was a situation of a person in one state complaining about the goings-on in another state or whether this case was more like Havens Realty.
  29. Justice Kagan wanted to know how a plaintiff could be discriminated against if the individual is not planning to use any of the services.
  30. Justice Gorsuch wanted to better understand how Laufer’s view differs, if at all, from the view advocated by DOJ. He also wanted to know whether Internet surfing by itself was sufficient to confer standing.
  31. Chief Justice Roberts wanted to know if Havens Realty was actually distinguishable.
  32. Justice Jackson wanted to know whether dignitary harm required an intent to return when seeking injunctive relief.
  33. Justice Kavanaugh was trying to figure out when an online tester would ever have standing. He also wanted to know if the information on a website was the discrimination or whether what would likely happen at the hotel was the discrimination.
  34. Justice Sotomayor wanted to know if the litigation was all about screen readers and the reservation rule and whether any litigation regarding Internet accessibility was about any other topic. She also wanted to know how any decision would impact screen reader cases.





  1. The best result for the plaintiff is for the court to say that the case is moot and then per Munsingwear vacate the lower court opinion.
  2. It seems that there are three votes (Jackson, Kagan, and Sotomayor), in favor of saying that the case is moot and that is the end of the matter. Justice Thomas and Justice Alito clearly believe that the case is moot. Not clear whether Justice Thomas and Justice Alito would leave it at that or also go on to the standing argument as well.
  3. The Supreme Court can either attack mootness or standing in whatever order it wants to do so.
  4. Chief Justice Roberts and Justice Barrett clearly want to decide the case on other grounds besides mootness. That is, they clearly want to discuss the standing issue.
  5. Interesting how both parties to the case presume that tester standing is a thing under title III of the ADA. Based upon the statutory language differences between the Fair Housing Act and title III of the ADA, that is certainly not a given as Justice Sotomayor pointed out.
  6. Lots of debate over what intent to return means when it comes to an Internet focused situation. That is, is it the intent to return to the web or is it an intent to take advantage of the services that the website is advertising.
  7. Several Justices were concerned about the strategic moves that serial filers, such as Laufer, made during this case and might make in the future.
  8. As I point out in my writings, I believe Chief Justice Roberts is right to point out that Havens Realty is certainly distinguishable from the title III of the ADA tester situation because of the differences in the statutory language of the Fair Housing Act and the ADA’s title III.
  9. Justice Kavanaugh fairly points out that there is a question as to whether an online tester could ever have standing. That generated a very interesting response from Laufer’s attorney where he said that if there is an intent to travel requirement no one is going to ever have standing to bring the suit in any meaningful [way]. Justice Kavanaugh immediately agreed with that and then Laufer’s attorney went on to say that was because the trip would have already taken place before the person could get their relief.
  10. I don’t see the issue with this case impacting screen readers because in that situation it is the person using the screen reader that is suffering a very specific kind of harm if the Internet site is not accessible to him or her or them. Same analysis for a voice dictation user, such as myself.
  11. If the Supreme Court does not decide the case as moot and leaves it at that (that was very well could depend on Justice Thomas and Justice Alito), Laufer undoubtedly loses. The only question is what that decision look like.
  12. Regarding advisory opinions, I have seen scholars argue that the Supreme Court does issue advisory opinions on occasion. I saw a lot of that discussion subsequent to the Supreme Court’s decision in the 303 Creative case. Some scholars argued that to their mind 303 Creative was not the first time the Supreme Court issued an advisory opinion, assuming that 303 Creative was an advisory opinion.
  13. Curious why no one is talking about South Dakota v. Wayfair, which we discussed here. In that case, the Supreme Court made clear that the Internet could be a physical place or at least have every feature of a physical place.

This week’s blog entry is super short. I am actually traveling all week. The first half of the week is Minneapolis to speak at the Minnesota CLE Bankruptcy Institute. The second half of the week is parents weekend at my daughter’s college.

The blog entry for the week is the updated EEOC harassment guideline, which can be found here. As you know, I am not particularly a fan of guidances in general, though there are a few that I like, such as here. In general, I find guidances are not all that informative and are often used as a crutch by attorneys. The updated EEOC harassment guideline, the public has 30 days from publication in the Federal Register to comment on them, is quite good. The guideline is a treatise discussing 30 years of harassment law and is written in a very understandable language. The two takeaways I take from the EEOC updated harassment guidance are: 1) harassment based on disability is a thing; and 2) the objective standard for harassment means looking at it from the reasonable person with the protected characteristic, i.e. disability. Will a judge actually be able to apply that standard properly? Will the EEOC? My experience is that people get disabilities regardless of partisan affiliation, if they have a disability themselves, have a family member with a disability, or associate with a person with a disability. If none of those are true, then the person may very well not get disability. Considering the typical profile of a federal judge, the odds are that a federal judge does not automatically get disability. What the standard sets up is that a plaintiff side attorney might consider having an expert to discuss just how a “reasonable person with a disability,” would perceive the work environment. For example, in the blog entry from last week, just about everybody with a disability would perceive that environment as hostile.

Have a great week y’all.

Before getting started on the blog entry of the day, I wanted to point out that the White House issued a memorandum detailing how agencies should go about Internet accessibility. The document, which can be found here, is basically a best practices guide for executive agencies with respect to their Internet sites. Of particular note, is a reiteration of §508 and also a mention that WCAG 2.1 must be looked at as well. Also, next week I will be traveling all week (in the first part of the week, I will be speaking at the Minnesota Continuing Legal Education Bankruptcy Institute in Minneapolis, Minnesota on working with disabled clients and disabled attorneys. In the second part of the week and through the weekend, it’s parents weekend at my daughter’s college. So, I will try to get a blog entry done over the weekend for next week. If not, I will skip blogging next week and be back the following week).


The blog entry of the day is EEOC v. Army Sustainment, LLC, a decision from the Middle District of Alabama decided on September 26, 2023, here. The case involves an Army contractor that had a policy prohibiting the use of certain prescription drugs regardless of whether those drugs were properly prescribed and were compensating for people’s disabilities. There is a lot to unpack in this decision, and I wouldn’t be surprised if it gets appealed to the 11th Circuit. The 11th Circuit is very friendly to persons with disabilities. As usual, the blog entry is divided into categories and they are: facts; just when does the statute of limitations begin to run; whether an adverse action exists; whether the regarded as claims can go forward; pretextual; whether the failure to accommodate claims can go forward; disparate impact or disparate treatment; whether the interference claims can go forward; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories. As a way of attacking the blog entry, you would probably be perfectly okay if you focused on the categories outside of the facts section and then referred back to the facts section as needed. Of course, you could also go in order as well if you prefer that. You definitely will want to read the thoughts/takeaways section for sure.



Facts (a bit lengthy but unavoidable; taken directly from opinion)


AFS was the primary helicopter maintenance contractor at Fort Rucker (now known as Fort Novosel) from 2003 to 2018 and employed thousands of aircraft mechanics, technicians, and other aviation specialists at that location. In 2012, AFS implemented an “Alcohol and Drug Free Workplace Procedural Guide 2501” that set forth policies and procedures related to employee drug use. Under this policy, AFS drug tested employees in safety-sensitive positions1 for a variety of drugs, 2 including opioids, amphetamines, and benzodiazepines.3 (See Doc. 169-7 at 8, 12.) Under the February 2016 version of the policy, with respect to prescription medications, employees were required to “report medications to the AFS Office of Occupational Health [OHD] when these prescriptions may affect their ability to safely perform their duties.” (Doc. 169-37 at 7.) AFS’s drug policy stated that “[c]ertain prescription medications may be unsafe for use during work hours but are acceptable for use during off duty hours while other prescription medications have been deemed inappropriate for use at all for employees in a safety sensitive 1 According to AFS, the determination of which positions were classified as “safety-sensitive” was based on an “interactive process with the Government Flight Representative (GFR), who represented Army’s interests regarding flight operations at Ft. Rucker.” (Doc. 153 at 19 (citing Doc. 153-56).) 2 This is referred to as the “9-Panel.” 3 It is undisputed that these substances have both illegal and prescription applications. 4 environment” such as “pain killers with narcotics, anti-depressants, and prescription diet medications.” (Id.)


In February 2016, AFS made two major changes to its drug policy that are the subject of the current dispute. First, prior to 2016, AFS employed a “6-to-8 Hour Rule” for employees in safety-sensitive positions who were legally prescribed 9- Panel medications. Under this rule, AFS’s in-house OHD could independently clear an employee with a prescription 9-Panel medication to return to work so long as the employee agreed in writing that they would not take their medication within 6-to-8 hours before their shift. According to AFS, employees who submitted to this written agreement were rarely required to be cleared for work by outside medical professionals. In February 2016, AFS eliminated the 6-to-8-hour rule and instead required employees to undergo a medical evaluation with an outside Occupational Medical Provider (OMP) to determine whether an employee’s prescription medication was appropriate for use during work hours. (Id.)


Second, as part of the medical evaluation process, employees prescribed medications “that may affect [their] ability to safely perform their job duties”— including 9-Panel medications—were sent to an OMP to discuss alternative medications “for any medication deemed to be a risk to the employee and/or the workplace.” (Id. at 12.) As part of this prescription medication review process, AFS directed the OMPs to send a “Safety Sensitive Letter” to the employee’s prescribing 5 doctor to confirm whether the employee was stable on their safety-sensitive medication or whether alternative medications were available that were as effective. If the prescribing doctor indicated that no alternative medications were available, the OMPs had to determine whether the employee could safely work while taking the medication in question. The policy additionally provided that “[e]mployees determined unable to work within the parameters of the Alcohol and Drug Free Workplace Policy will be deemed disabled and therefore eligible to apply for benefits IAW the short-term disability plan.” (Id. at 10.)


In November 2016, two AFS employees—Paul Nolin and Winston Mervin Simmons—filed charges of discrimination with the EEOC alleging that AFS’s revised prescription drug policy discriminated against them because of their disabilities.


After receiving Simmons’s and Nolin’s charges of discrimination, the EEOC launched an investigation to determine whether AFS engaged in unlawful 8 discrimination in violation of the ADA. As a result of its investigation, the EEOC found reasonable cause to conclude that AFS violated the ADA by not allowing the charging parties and a class of individuals “to continue to work or return to work while taking their disability-related medications” that were prohibited under AFS’s alcohol and drug policy, and by failing to engage in the interactive process. (Doc. 153-49 at 23.) Furthermore, the EEOC determined that AFS’s alcohol and drug policy constituted a blanket policy using impermissible qualification standards that “have the effect of discrimination on the basis of disability” in violation of the ADA. (Id.) On April 6, 2020, the EEOC filed suit after conciliation efforts with AFS failed


Due to the revised AFS policy, approximately 72 AFS employees underwent medical evaluations regarding their prescription medications. Of those 72 employees, the EEOC brought this action on behalf of 17, including: Amber Ficquette Cottrell, Azeala Hutchinson, Heath McElveen, Marcus Rich, Mark Blinn, Matthew Black, Winston Mervin Simmons, Michael Sanders, Paul Nolin, Richard Johannes, Rick Skinner, Rickey Helmes, Rickey Sego, Sabra Distasio Kelley, Tammy Bright Hudson, Tammie Johannes, and Timothy Murray. The group’s disabilities include conditions such as chronic pain, anxiety, post-traumatic stress disorder (PTSD), and attention-deficit/hyperactivity disorder (ADHD). (See 9 generally Docs. 169-1 through 169-17.) All of these individuals were legally prescribed 9-Panel medications and were required to undergo medical evaluations with OMPs to be cleared to return to work. According to the EEOC, these individuals were prescribed medications to treat or manage their underlying disabilities yet were told by the OMPs that their prescription medications were prohibited under AFS’s drug policy, and thus, they could not return to work while using these medications.


Despite expressing their desire to continue using their prescription medications, some of these individuals agreed to stop taking them because they feared they would face forced unpaid leave or employment termination. (See, e.g., Doc. 169-4 at 3; Doc. 169-5 at 5; Doc. 169-7 at 3–4; Doc. 169-8 at 5; Doc. 169-11 at 4; Doc. 169-14 at 5; Doc. 169-17 at 6–8.) Some of them were also forcibly placed on unpaid leave, including Matthew Black, Mark Blinn, Heath McElveen, and Marcus Rich.


The OMPs ultimately cleared Matthew Black, Heath McElveen, and Paul Nolin to return to work while using their prescription medications for ADHD, but they were not permitted to continue using other prescription medications. (See Doc. 155-9 at 12, 15; Doc. 155-10 at 1–2, 11; Doc. 155-26 at 9.) Mark Blinn was allowed to continue taking his prescription medication (Vicoprofen) to treat his chronic pain 10 condition so long as he took FMLA leave when using it during work hours. (See Doc. 155-12 at 51.)


In some instances, when an employee was not cleared to return to work while using certain prescription medications, before AFS’s in-house OHD would clear the employee to return to work, the employee was required to sign a “Results of Rx Medication Review” form acknowledging that their prescription medication was “deemed inappropriate for use in a safety sensitive work environment” and that they could be subject to disciplinary action, including termination, if found to be taking their prohibited medications in the future. (See Doc. 155-10 at 2; Doc. 155-26 at 12; Doc. 155-19 at 1; Doc. 155-21 at 10; Doc. 155-25 at 3; Doc. 155-26 at 12.)



Just When Does the Statute of Limitations Begin to Run


  1. In non-deferral states, which includes Alabama (Georgia too for that matter), the claimant has to file a charge with the EEOC within 180 days of the date of the alleged discrimination.
  2. The general trend among district court decisions is that the EEOC cannot pursue claims arising outside the charging period even when those untimely claims are related to otherwise timely claims.
  3. Each person the EEOC brings a claim on behalf of has to fall within that 180 day timeframe. To hold otherwise, would permit the EEOC to destroy all principles that go along with a statute of limitations and force employers to defend against zombie like claims from the distant past.
  4. The statutory plain language requires a charge to be filed with 180 days of when the alleged unlawful employment practice occurred. It also talks about damages for back pay not accruing from the date more than two years prior to the filing of a charge.
  5. Failure to accommodate claims are discrete acts, and so the continuing violation doctrine is not applicable. Same can be said, i.e. discrete acts, for the placing of employees on unpaid leave until they were cleared to return to work.
  6. Either of the two claims filed by the lead plaintiffs activates the statute of limitations.


Whether An Adverse Action Exists


  1. An adverse employment action is one that impacts the terms, conditions, or privileges of a plaintiff’s job in a real and demonstrable way.
  2. In other words, an employment action must have a serious and material change in the terms, condition, or privileges of employment in order to be actionable.
  3. Whether the employer’s conduct constitutes an actionable adverse employment action under the ADA is determined by whether a reasonable person in the plaintiff’s position would view the employment action in question as adverse.
  4. The EEOC has not shown how merely being required to cease use of certain prescription medications, without more, is sufficiently adverse to be actionable.
  5. The EEOC has shown that the people placed on involuntary unpaid leave did suffer an actionable adverse employment action.
  6. The EEOC has not shown how the directive to cease using certain prescription medications had a tangible adverse effect on the claimants employment. After all, several people continued working in the same positions even after agreeing to no longer take the prescription medications, and there is no evidence that any of those were terminated, demoted, disciplined, or missed out on advancement opportunities as a result of that action.
  7. Neither signing a form nor fear of termination are sufficient to constitute an adverse employment action.
  8. The impact of stopping prescription medications is insufficient to support a discrimination claim.
  9. Unpaid leave does constitute an adverse employment action since it directly impacts an employee’s compensation.



Whether the Regarded As Claims Can Go Forward


  1. The regarded as prong of the ADA is dispositive in this case. Under that prong, a person is regarded as having a disability when that individual has been subjected to an action because of an actual or perceived physical or mental impairment regardless of whether or not the impairment limits or is perceived to limit a major life activity. In other words, the question is whether the employer took adverse action against an individual because of an actual or perceived physical or mental impairment.
  2. Forcing people on unpaid leave based on a belief that the prescription medications could (emphasis in opinion), interfere with their ability to safely perform their work duties satisfies the regarded as prong.
  3. The evidence is sufficient to meet the regarded as definition especially considering the policy that provided employees deemed unable to work on the policy are disabled and therefore able to apply for short-term disability benefits.
  4. In a footnote, the court notes that the employer treated prescription medication as a proxy for unsafe work performance without any evidence that any of those individuals could actually perform their job duties while taking their prescribed medications.
  5. The weight of persuasive authority clearly leans in the EEOC’s favor with respect to cases concluding that plaintiff can show they were regarded as having a disability when their employers restricted or prohibited them from working based upon the employer’s perception that their prescription medications limited their ability to work.




  1. By the employer claiming it was accommodating claimants because of the prescription medication use, they implicitly concede that its actions were motivated by the claimants disabilities.
  2. While it is true that prescription medication usage does not mean necessarily that a person is a person with a disability, it is not disputed that these particular claimants took the medication because of their disabilities and that the employer’s forced leave was necessarily and inextricably tied to their respective conditions.





Whether The Failure to Accommodate Claims Can Go Forward


  1. According to the district court judge, the 11th Circuit in Beasley, which we discussed here, holds that discrimination in the form of a failure to reasonably accommodate is actionable only if that failure negatively impacts the employee’s hiring, advancement, discharge, compensation, training, and other terms, condition, and privileges of employment. So, the EEOC has to show that a person suffered an adverse employment action as a result of the failure to accommodate. The EEOC has not done that, with the exception of those put on unpaid leave.
  2. Triggering an employer’s duty to provide a reasonable accommodation means the employee makes a specific demand for an accommodation and demonstrates that such an accommodation is reasonable.
  3. In failure to accommodate cases, the burden is on the employee to: 1) identify, at least in broad strokes, the limitations their mental or physical condition imposes; and 2) link their disability to their requested accommodation by explaining how the requested accommodation alleviates the workplace challenges posed by his specific disability.
  4. Employees must give employers enough information to respond effectively to an accommodation request.
  5. At a minimum, an employee must request some change or adjustment in the workplace and must link that request to his disability, rather than simply presenting the request in a vacuum.
  6. A person telling the employer that they have to speak to their doctor before agreeing to stopping the medication is not an accommodation request, absent a generous interpretation, and even so there was no evidence how the accommodation request would address the limitation presented by his disabilities.
  7. The EEOC has failed to sufficiently show that the four remaining claimants made specific demands for an accommodation and demonstrated that such accommodations were reasonable to alleviate the workplace challenges posed by their specific disabilities.



Disparate Impact or Disparate Treatment


  1. The EEOC’s screen out claims are disparate impact claims.
  2. Both disparate impact and disparate treatment are permissible theories under the ADA.
  3. Courts must carefully distinguish between disparate treatment claims and disparate impact claims because the factual issues and the character of the evidence presented differ when the claims are based upon a facially neutral employment policy having a discriminatory impact on protected classes.
  4. The EEOC specifically alleges that the policies have the effect of discrimination on the basis of disability and the effect of depriving a class of qualified individuals with disabilities from equal employment opportunities, etc. So, it appears that the EEOC is alleging that the employer’s impermissible screening standard claims are disparate impact claims given its emphasis on the effect of the employer’s policy on people with disabilities.
  5. In order to succeed on a disparate impact claim, a plaintiff has to show that a facially neutral employment practice has a significant discriminatory impact on a single group of people.
  6. Further, establishing a prima facie case of disparate impact means a plaintiff have to provide comparative evidence showing that a policy has a disparate impact on people with disabilities.
  7. The EEOC did not present any statistical evidence that the drug policy had a disparate impact on people with disabilities.
  8. The EEOC cannot show that anybody was actually screened out from their job because it is undisputed that none of the claimants were terminated or that the employer failed to hire any of them as a result of the drug policy.
  9. To the extent that the EEOC argued that an ultimate employment action is not required in order to sustain a screen out claim, it did not like the fact cite any binding authority to support that argument or any factually similar persuasive authority.



Whether The Interference Claims Can Go Forward


  1. Employer failed to acknowledge that an ADA interference claim is a separate cause of action distinct from an ADA discrimination claim.
  2. The 11th Circuit has not had the occasion yet to explain the proper standard for evaluating ADA interference claim. Some courts have looked to the Fair Housing Act. The court also mentions Frakes, which we discussed here, as another possibility for how to prove up interference claims. The employer’s attorneys had ample time to address the interference claim and simply did not do it, so summary judgment is not warranted.






  1. The DOJ has made it quite clear that forcing people to stop taking their medication in order to participate in programs and activities of governmental entities violates the ADA. See this blog entry. I see no reasons why those same arguments would not hold in the title I context. Of course, the EEOC is a different thing than the DOJ. However, the DOJ does have the authority over cases involving employees of nonfederal governmental entities, which means that non federal governmental entities would be wise not to emulate the policies of Army Sustainment. The EEOC’s authority is only over private entities. Still, if you are representing an employee of a nonfederal governmental entity, you would still be wise to file with the EEOC first even though it would be DOJ that would ultimately prosecute the claim down the road if it comes to that.
  2. Not every state is a deferral state. For example, I know Alabama, Georgia, and Missouri are not deferral states. In those states, the amount of time to bring in EEOC charge is going to be shorter.
  3. Underlying this case is just how significant the question of whether the disability is what is being accommodated v. the essential functions of the job being accommodated. Those two concepts lead you to very different places in a case like this. Those two concepts always lead you to different places with respect to service animals in the workplace. The 11th Circuit, as we discussed here, is making it pretty clear that it is the disability being accommodated and not the job’s essential functions. If the EEOC appeals this case, they may want to bring up this distinction more explicitly.
  4. The trend is most definitely that failure to accommodate claims are discrete acts. That said, we did discuss a case talking about a repeated violation doctrine. See this blog entry.
  5. A hot debate, as we have previously discussed, exists as to whether failure to accommodate claims require an adverse action. There are cases saying that failure to accommodate claims do not need an adverse action, such as we discussed here. There are also cases saying that a failure to accommodate it by itself an adverse action. This case seems to demand an adverse employment action on top of the failure to accommodate. There is a split among the Circuits on the question of whether a failure to accommodate claim requires an adverse action. The Supreme Court will have to step in eventually to figure that out. I am not going to hazard a guess as to what the Supreme Court will do on that.
  6. Interesting, that the court postulates that the test for an adverse employment action is whether a reasonable person in the plaintiff’s position would view the employment action and question as adverse. That raises two points. First, we need more judges with disabilities on the bench. Second, if you are a trial attorney, especially on the plaintiff’s side, trying to get jurors with a disability or who associate with a person with a disability is very important. I would postulate that just about everybody with a disability who is taking these medications would view the request to stop taking their medications, which they absolutely need to take in order to mitigate the effects of their disability, as an adverse action. So, adverse action is very much in the eyes of the beholder. Finally, one wonders if saying that an adverse action does not exist by requesting a person to stop taking medication that they use to compensate for their disability does not violate the amendments to the ADA itself, which specifically says that mitigating measures, excepting eyeglasses, are not to be considered with respect to whether the person has a disability. In essence, the employer is saying that it gets to decide what mitigating measures a person with a disability can use. It simply doesn’t work that way. Someone else deciding on what mitigating measures work best for the person with the disability and not the person with the disability deciding that is ableism.
  7. This case nicely illustrates how a regarded as claim can be use without having to rely on the other prongs even where a person would satisfy the other two prongs.
  8. An absolutely horrible idea for an employer to treat prescription medications as a proxy for unsafe work performance. You are much better off doing an individualized analysis to figure out whether the person can perform the essential functions of the job with or without their medication and without being a direct threat to self or others (direct threat and safety are not the same concepts at all. See this blog entry for discussion of direct threat, which we have discussed many multiples of times.
  9. In a case we discussed here, the Fifth Circuit overturned decades of decisions and held that an ultimate employment action is not necessary in a title VII case. The court does not mention this decision perhaps because the Fifth Circuit decision and the “printing,” of this decision crossed in terms of their time frames. The arguments made by the Fifth Circuit certainly carry over to failure to accommodate claims.
  10. The Supreme Court has a couple of cases before it this term that will be assessing just what is an adverse action in the title VII arena. Those decisions may have wide carryover to failure to accommodate claims and bear watching.
  11. Very unclear as to how it shakes out with respect to the burden of proof in failure to accommodate claims as it blurs into the affirmative defense of undue hardship.
  12. We have discussed before it just how much notice a person have to get with respect to that notice being considered a reasonable accommodation request. See this blog entry for example. Clearly, how much notice is required is going to vary from jurisdiction to jurisdiction and even among judge to judge.
  13. If you are alleging a screen out claim, be prepared for the court thinking that it is a disparate impact claim. Accordingly, be prepared to present evidence of how that policy screens out people with disabilities. In a case such as this one, I don’t think it would be that hard because by definition anybody that is screened out is a person with a disability. Further, the people who are not on prescriptions are not screened out by the policy.
  14. Interference is simply something that is underutilized. Both plaintiff side and defense side lawyers should get familiar with it. It appears that the employer’s lawyers unfamiliarity with interference claims cost the employer the ability to get summary judgment on that issue in this case.
  15. It is absolutely correct that Beasley says that the failure to accommodate claim requires an adverse action. However, a close reading of that case reveals that it come very close to the proposition that the failure to accommodate by itself is an adverse action. This case seems to take a much more narrow view of that. If this decision is appealed, I would expect the EEOC to address this issue of just what kind of an adverse action, if any, is required in failure to accommodate cases.