Before getting started on the blog entry of the week, an update/supplemental information on a couple of prior cases that we have discussed previously. First, EEOC v. William Beaumont Hospital, which we discussed here, resulted in a consent decree. The hospital has to pay the plaintiff $30,000 in noneconomic and compensatory damages. Also, within 90 days after the decree and thereafter on an annual basis, the hospital must provide mandatory training on disability discrimination under the ADA to its Human Resources team members and its Talent Attraction staff. The training must be interactive and in person or through Microsoft Teams (Why Teams and not Zoom or something else, I have no idea). The consent decree expires in 18 months. I always wonder in these settlements mandating training as to who is doing the training that follows. I just don’t understand why the same problems keep coming up over and over again. That shouldn’t be happening with qualified trainers and if the training is being done regularly, at least not as often as it does (in the interest of full disclosure, training is a large part of my practice). The other preliminary matter is a concurring opinion, which can be found here, by Judge Abudu in a published case from the 11th Circuit decided on February 6, 2026, where she talks about how the hostile environment severe or pervasive standard is completely broken. Her reasoning very closely tracks the reasoning of the Minnesota Supreme Court in a case we discussed here. It will definitely be worth following whether the Minnesota Supreme Court and now Judge Abudu of the 11th Circuit are starting a new trend.

 

Turning to the case of the day, it is something that is being discussed quite a bit among attorneys in their blogs and on LinkedIn. The case of the day is U.S. v. Heppner, here, decided by Judge Rakoff of the United States District Court for the Southern District of New York on February 17, 2026. It deals with the question of whether a person under indictment who uses AI to help piece together their situation after being indicted loses their ability to claim the inputs as part of the attorney-client or work product privilege. The blog entry is divided into categories and they are: how a person with a disability who has executive functioning weaknesses might plan for an important meeting; facts; court’s reasoning that the attorney-client privilege was waived; court’s reasoning that the work product privilege was waived; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

How a Person with a Disability Who Has Executive Functioning Weaknesses Might Plan for an Important Meeting

 

There are a variety of disabilities that frequently have executive functioning deficits associated with them, such as for example: ADHD; people with learning disabilities; people with traumatic brain injury; and autistic individuals. It is perfectly reasonable to think, especially today, that such an individual might use AI to help them prepare for an important meeting, such as when they are in need of attorney representation. I did an AI search into the Google AI, and it came up with the below as to how a person lacking executive functioning skills might prepare for an important meeting.

 

 

AI Overview

Organize thoughts for meetings by

using a “brain dump” to list all ideas, then prioritize them using the 3-minute rule or a traffic light system (red/yellow/green). Structure preparation with checklists, visual aids, and breaking down tasks into 25-minute Pomodoro sessions. Use tools like Trello, Cozi, or Notability for structure.

ADDA – Attention Deficit Disorder Association +5

Key Strategies for Meeting Preparation:

  • Brain Dump & Prioritize: Before a meeting, write down everything in your head, then highlight the top 3 critical points.
  • Use Checklists/Templates: Create a standardized agenda template to fill in for every meeting to reduce cognitive load.
  • Visual Aids: Use sticky notes for brainstorming and mapping out ideas visually.
  • Time Management: Use a timer for preparation steps to avoid getting stuck on one detail.
  • Body Doubling: Work alongside a colleague (in-person or virtually) to improve focus and accountability.
  • Reduce Distractions: Clear your workspace, use noise-canceling headphones, and turn off notifications.
  • Review Ahead: Spend 5-10 minutes reviewing materials beforehand, and allow for a mental break afterward.

ADDA – Attention Deficit Disorder Association +10

Tools to Consider:

  • Digital: Cozi, Trello, Tiimo.
  • Physical: Whiteboards, sticky notes, color-coded notebooks.

Job Accommodation Network (JAN) +4

 

 

 

 

Almost all of this can be more efficiently done with using AI tools, such as ChatGPT, Claude, etc. Please note, that I am emphatically not saying that the defendant in this case had any of these disabilities. Rather, I am saying that it is perfectly logical that a person with any of the disabilities mentioned earlier above might use AI in the manner used by the defendant in this case for similar purposes with respect to being able to make the most out of their attorney’s representation.

 

II

Facts

 

Heppner (defendant) was indicted for security fraud, wire fraud, conspiracy to commit security fraud and wire fraud, making false statements to auditors, and falsifying corporate records. The indictment charged that the defendant defrauded investors out of more than $150 million by making false representations and causing the company to enter into undisclosed self-serving transactions concerning two privately held companies that the defendant controlled. Among the materials seized in a search warrant executed by the FBI were approximately 31 documents memorializing communications that the defendant had with the generative AI platform Claude. Those documents represent communications between the defendant and Claude taking place in 2025 after the defendant has received a grand jury subpoena and after it was clear with discussions with the government that the defendant was the target of the investigation. Without any suggestion from counsel that the defendant do so, the defendant prepared reports: 1) outlining defense strategy; and 2) outlining what he might argue with respect to the facts and the law that was anticipated that the government might be charging. He also asserted that the reports were prepared in anticipation of a potential indictment.

 

 

II

Court’s Reasoning That The Attorney-Client Privilege Was Waived

 

  1. In order for the attorney-client privilege to apply, there must be a communication: 1) between a client and their attorney; 2) that is intended to be, and in fact was, kept confidential; and 3) for the purpose of obtaining or providing legal advice.
  2. The attorney-client privilege is narrowly construed because it operates as an exception to the rule that all relevant proof is essential for a complete record and for competence in the fair administration of justice.
  3. The AI documents are not communications between the defendant and his counsel.
  4. The defendant does not maintain nor could not maintain that Claude is an attorney.
  5. In the absence of an attorney-client relationship, the discussion of legal issues between two non-attorneys is not protected by attorney-client privilege.
  6. The written privacy policy to which users of Claude consent provides that Anthropic (the makers of Claude), collect data on both users inputs and Claude’s outputs. The agreement also provides that it uses such data to “train,” Claude. Finally, the agreement says that Anthropic reserve the right to disclose such data to a host of third parties, including governmental regulatory authorities.
  7. The policy clearly put Claude’s users on notice that even in the absence of a subpoena compelling it to do so, personal data may be disclosed to third parties in connection with claims, disputes, or litigation.
  8. AI users do not have substantial privacy interest in their conversation with another publicly accessible AI platform that users voluntarily disclosed to the platform and which the platform retains as a normal course of business.
  9. The documents are not like confidential notes prepared by a client with the intent of sharing them with an attorney because the defendant first shared the equivalent of his notes with a third-party.
  10. The defendant did not communicate with Claude for the purpose of obtaining legal advice even if he did so for the express purpose of talking to counsel. The defendant did not communicate with Claude at the suggestion or direction of counsel. However, had counsel directed the defendant to use Claude, Claude might arguably be said to function in a manner similar to a highly trained professional acting as a lawyer’s agent within the protection of the attorney-client privilege.
  11. Since the defendant communicated with Claude on his own volition, the question is whether the defendant intended to obtain legal advice from Claude and not whether he later shared Claude’s outputs with counsel. Claude specifically disclaims providing legal advice when prompted to do so.
  12. Even assuming the defendant intended to share these communications with his counsel and eventually did so, it is black letter law that nonprivileged communications are not somehow magically changed into privileged communications upon being shared with counsel.
  13. In a footnote, the court noted that even if information put into Claude by the defendant incorporated information that his attorneys had conveyed to him over the course of the representation, that didn’t change the outcome at all because the defendant waived the privilege by sharing the information with Claude just as if he had shared the information with any other third party. Further, in light of Claude’s privacy policy, the defendant has no reasonable expectation that the inputs would not be shared with other third parties.

 

 

III

Court’s Reasoning That The Work Product Privilege Was Waived

 

  1. The AI documents do not merit protection under the work product doctrine because even assuming for the sake of argument that they were prepared in anticipation of litigation, they were nevertheless not prepared by or at the behest of counsel, nor did they reflect defense counsel’s strategy.
  2. Defendant’s counsel confirmed that the AI documents were prepared by defendant on his own volition. That means that the defendant was not acting as his counsel’s agent when he communicated with Claude.
  3. Counsel conceded that while the AI document did affect counsel’s strategy going forward, they did not reflect counsel’s strategy at the time defendant created them.
  4. While it is true that the work product doctrine applies to material generated by non-lawyers, the Second Circuit has repeatedly stressed that the purpose of the doctrine is to protect lawyers” mental processes.
  5. No dispute that defendants acted on his own when he created the AI documents.
  6. Since the AI document were not prepared at the behest of counsel and did not disclose counsel’s strategy, the AI document do not merit protection as work product.

IV

Thoughts/Takeaways

 

  1. Welcome to the brave new world of AI.
  2. An absolutely critical fact here is that the defendant prepared the documents without notifying counsel that he would doing so or at the direction of counsel.
  3. It is perfectly reasonable to expect individuals with weaknesses in executive function to use AI in the way the defendant used AI in this case.
  4. It is also perfectly reasonable for a client to suggest to their attorney that they want to use AI to accommodate their weaknesses in executive functioning as a result of their disability.
  5. Jennifer Ellis, Esq., is an attorney in Pennsylvania whom I have been fortunate to co-present with and is extremely involved in the AI user space. One of the suggestions that she had in a presentation that we recently made together, is to be sure to turn off the option where AI allows anything you put into it to be used to train other users.
  6. An attorney has the obligation under Title III of the ADA to reasonably modify their practices absent an undue burden or fundamental alteration.
  7. Executive functioning deficits also raise the issue that the DOJ’s effective communication rules might be involved, which applies to anyone with a disability having issues with communication. That rule, here, requires attorneys in private practice dealing with persons with disabilities with communication issues to engage in a back-and-forth (we can call it the “interactive process,”), to figure out a way where the client and the attorney can both win with respect to the client’s disability being accommodated. For an attorney working for a nonfederal governmental entity, the effective communication rule, here, requires primary consideration be given to how the person with a disability prefers to communicate.
  8. It would be wise for the attorney and the prospective client to discuss as part of their engagement how the use of AI by the client might negatively affect the representation. Not a bad idea to put such language in the retainer agreement as well.
  9. If the client mentions to the attorney that they have weaknesses in executive function and use AI to compensate for those executive functions, it would make sense for the attorney to document that as a reasonable modification request. If the firm has AI tools in a closed system that the client might be able to use, the attorney could consider letting the client use those systems. If not, definitely wants to tell the client to turn off the training option on the AI. It would also make sense for the attorney to document that the client is using AI to accommodate for their disability, that the attorney is fully aware of this happening, and that all of this is necessary to help ensure the best representation of a client with a disability.
  10. Lawyers need to get on top of things in a hurry to figure out how client’s use of AI will be dealt with by their firms. This whole issue very much affects people with disabilities as people with disability are using AI in all kinds of ways to accommodate their disabilities. For that matter, everybody is using AI now.
  11. This case may be even more broad than attorneys and their clients. For example, do journalists now waive their rights to protect their sources when AI is a part of their discussion with their sources?
  12. It’s a brave new world and this is not the last of it.

Previously, we had blogged on the Supreme Court decision that set forth the major questions doctrine, here. In reviewing that blog entry, there really wasn’t much meat on the bone so to speak in terms of just when the major question doctrine would be employed. That decision suggested that it could be employed any time desired since just about everything is a major question. That said, on February 20, 2026, the Supreme Court decided Learning Resources, Inc. v. Trump, here. From that majority opinion as well with the concurrences, we now have some idea as to how the major question doctrine might work going forward. As usual, the blog entry is divided into categories and they are: facts; sections of Chief Justice Roberts majority opinion joined by Justice Sotomayor, Justice Kagan, Justice Gorsuch, Justice Barrett, and Justice Jackson; sections of Chief Justice Roberts majority opinion joined by Justice Gorsuch and Justice Barrett; Justice Kagan’s concurring opinion; Justice Gorsuch concurring opinion; Justice Barrett’s concurring opinion; Justice Jackson concurring opinion; and thoughts/takeaways. Since the blog entry is focused on what shape the major question doctrine might take going forward, the blog entry does not discuss Justice Kavanagh’s dissent (view that the statute allowed for the presidential powers), and it also does not discuss Justice Thomas’s dissent as well since his focus was also not on the major questions doctrine.

 

I

Facts

 

The facts are really simple. As we all know President Trump used the International Emergency Economic Powers Act to initiate a series of tariffs and to increase or reduce them at his will. Learning Resources Inc. challenged that authority as being unconstitutional.

 

II

Sections of Chief Justice Roberts Majority Opinion joined by Justice Sotomayor, Justice Kagan, Justice Gorsuch, Justice Barrett, and Justice Jackson

 

 

  1. Since imposing a set of tariffs, the President issued several increases, reduction, and other modifications.
  2. The first clause of Article I, §8 of the U.S. Constitution states Congress has the power to lay and collect taxes, duties, imposts and excises. It isn’t an accident that the power appears first because the power to tax is the most important of the authorities proposed to be conferred upon the union. It is also a power to destroy and a power necessary to the existence and prosperity of the nation.
  3. The power to impose tariffs very clearly is a branch of the taxing power as it is a tax levied on imported goods and services.
  4. The framers gave Congress alone access to the pockets of the people by requiring all bills for raising revenue to originate in the House of Representatives. As such, the framers did not vest any part of the taxing power in the executive branch. The whole power of taxation rests with Congress.
  5. Absent from the lengthy list of powers in the law that President Trump used for his authority is any mention of tariffs or duties even though Congress did name a bunch of other things that the President can do. Accordingly, it stands to reason that had Congress intended to convey the distinct and extraordinary power of imposing tariffs to the President, it would have done so expressly as it has done in other tariff
  6. The power to regulate is not a grant of such authority, as the power to regulate ordinarily means, “to fix, establish, or control; to adjust by rule, method, or establish mode; to direct by rule or restriction; is subject to governing principles or laws.” Such a definition captures much of what the government does on a day-to-day basis but to argue anything broader than that suggest that the other eight verbs are simply wasted ink.
  7. The plain meaning of the term “regulate,” places in stark relief what the term is not usually thought of as including, which is the power of taxation.
  8. The United States Code has all kinds of statutes granting the executive the authority to regulate someone or something, but it does not contain any statute where the power to regulate includes the power to tax.
  9. When Congress addresses both the power to regulate and the power to tax, it does so separately and expressly.
  10. Since the power to regulate commerce is entirely distinct from the right to levy taxes, that Congress did not grant both of those powers separately in this case is strong evidence that the power to regulate in the law President Trump exercised the authority over does not include the power of taxation.
  11. The neighboring words that regulate is associated within the statute at issue also suggests that Congress did not intend “to regulate,” to include the revenue raising power and past presidential action is consistent with that.
  12. None of the authority listed in the statute at issue in this case includes the distinct extraordinary power to raise revenue, and no President is ever found such power in this statute before. As such, that is strong evidence that the power does not exist.
  13. When Congress granted the power to impose tariffs, it does so clearly and with careful constraints.
  14. Everyone agrees that the President has no inherent peace time authority to impose tariffs.

 

 

 

III

 

Chief Justice Roberts Majority Opinion Joined By Justice Gorsuch And Justice Barrett

 

  1. The Supreme Court has long expressed reluctance to read into ambiguous statutory text extraordinarily delegations of Congress’s powers.
  2. Separation of powers principles and a practical understanding of legislative intent suggest that Congress would not delegate highly consequential power through ambiguous language.
  3. Congress would likely intend for itself the basic and consequential trade-offs inherent in the use of imposing taxes.
  4. When Congress has delegated tariff powers it has done so in explicit terms and subject to strict time limits.
  5. To say that the President would have the extraordinary power simply by issuing a presidential declaration of emergency and then only by having it overwritten by a veto proof majority in Congress, would represent a transformative expansion of the President’s authority over tariff policy. It would also replace long-standing executive legislative collaboration over trade policy with unchecked presidential policymaking.
  6. In the half-century of the law that President Trump exercise the authority over, no President has ever invoked the statute to impose any tariffs, let alone tariffs of the magnitude and scope at issue here. Instead, Presidents have regularly invoked this law for other purposes. They have also invoked other statutes but never the one at issue here, in order to impose tariffs.
  7. The economic and political significance of the authority the President has asserted provides another reason to hesitate before concluding that Congress meant to confer such authority on the President.
  8. The President’s assertion of broad statutory power over the national economy is extravagant by any measure. Even the government admitted and boasted that the economic and political consequences of the tariffs are astonishing.
  9. The stakes involved here are much higher than those of other major question cases that have previously arisen before the court.
  10. A reasonable interpreter would not expect Congress to find such a big-time policy call off to another branch.
  11. The emergency argument as a justification for the authority doesn’t work because emergency powers tend to kindle emergencies and afford a ready pretext for the usurpation of congressional power.
  12. Where Congress has reason to be worried about its power slipping through its fingers, the Court has every reason to expect Congress to use clear language to effectuate unbounded delegations, particularly in the case of Congress’s one great power.
  13. The government admits that the President and Congress do not enjoy any concurrent constitutional authority to impose tariffs during peacetime. The framers gave the power to Congress alone notwithstanding any obvious foreign affairs implications of tariffs.
  14. There is no major questions exception to the major question doctrine.
  15. A president must point to clear congressional authorization in order to justify his extraordinary assertion of the power to impose tariffs and he cannot do so.
  16. When a president asserts the extraordinary power to unilaterally impose tariffs of unlimited amount, duration, and scope, he must identify clear congressional authorization to exercise it.
  17. The government points to no statute in which Congress uses the word “regulate,” to authorize taxation, and no President before this one has ever read into this law the ability to have such power.

 

IV

Justice Gorsuch Concurring Opinion

 

  1. As a preliminary matter, it is an interesting read. Much of the opinion is spent trying to convince the reader why Justice Gorsuch’s analysis of the situation is correct and literally all of the other Justices are just not analyzing the situation properly.
  2. Under the major question doctrine, the President must identify clear statutory authority for the extraordinary delegated power he claims.
  3. The statute did not clearly surrender to the President the authority he seeks to utilize.
  4. The authority the President granted to himself is broad and extensive.
  5. The statute at issue is also major legislation designed to address big problems in crises.
  6. When an executive branch official claims Congress has granted them an extraordinary power, as the President did in this case, they must identify clear statutory authority for it.
  7. The major question doctrine teaches that to sustain a claim that Congress has granted them an extraordinary power, executive officials must identify clear authority for that power.
  8. The major question doctrine is really nothing more than a derivation on the traditional clear statement rule. That is, early corporations often functioned much in the way today’s executive branch does, and when interpreting the scope of that authority, the common law has a clear statement rule that looked very much like the major question doctrine. Same can be said for what state and federal courts did when modern administrative agencies started claiming extraordinary delegated powers
  9. When it comes to legislative power, Congress is principal and executive officials are the agents.
  10. The major question doctrine is pro-Congress by allowing for maximum flexibility when drafting statutes but yet limiting resourceful members of the executive branch to act on their strong incentives to exploit any doubt and Congress’s past work to assume new power for themselves.
  11. The founders understood that men are not angels and we disregard that insight when it is allowed for someone to expand their power based on loose or uncertain authority. It is also delusional to think that power will accumulate safely and only in the hands of dispassionate people found in agencies.
  12. Once the Supreme Court reads a doubtful statute to grant the executive branch a given power, it becomes almost impossible for Congress to retrieve it. Further, any President interested in his own authority, and all presidents are, has a strong incentive to veto legislation aimed at returning power to Congress. For example, no president ould willingly give up the power to not have his emergency declarations reviewed or to have his ability to impose tariffs on nearly any goods he wishes, in any amount he wishes, based on emergencies he himself has declared.
  13. All major question cases can be easily explained by reference to a rule requiring the executive branch to identify clear statutory authority when it claims Congress has granted an extraordinary power.
  14. Some clues to look at when deciding whether a major question is involved include: is the president seeking to exercise an unheralded or newfound power based upon a statute long in existence; how has the executive branch interpreted the statute at issue in the past; if there is a mismatch between the action the executive officials seek to take and his expertise; is the President relying on oblique, elliptical, or cryptic language. As helpful as the clues can be in helping court spot when a claimed power is not (emphasis in opinion), supported by clear statutory authority, they do not represent an exhaustive checklist, nor does satisfying one of the clues guarantee a claim will succeed. Additional clues in this case include the way is used elsewhere in federal statutes, neighboring language in the statute at issue itself, and how Congress has delegated tariff authority in the past.
  15. The central question in any major question case remains whether the executive branch’s claim to an extraordinary power is supported by clear statutory authority.
  16. The major question doctrine does not contain a foreign affairs exception as that would swallow the entire doctrine.
  17. Justice Gorsuch opinion ends with the following statement that will certainly be much quoted from here on out:

 

“All I can offer them is that most major decisions affecting the rights and responsibilities of the American people (including the duty to pay taxes and tariffs) are funneled through the legislative process for a reason. Yes, legislating can be hard and take time. And, yes, it can be tempting to bypass Congress when some pressing problem arises. But the deliberative nature of the legislative process was the whole point of its design. Through that process, the Nation can tap the combined wisdom of the people’s elected representatives, not just that of one faction or man. There, deliberation tempers impulse, and compromise hammers disagreements into workable solutions. And because laws must earn such broad support to survive the legislative process, they tend to endure, allowing ordinary people to plan their lives in ways they cannot when the rules shift from day to day. In all, the legislative process helps ensure each of us has a stake in the laws that govern us and in the Nation’s future. For some today, the weight of those virtues is apparent. For others, it may not seem so obvious. But if history is any guide, the tables will turn and the day will come when those disappointed by today’s result will appreciate the legislative process for the bulwark of liberty it is.”

 

V

Justice Barrett’s Concurring Opinion

 

  1. Justice Barrett’s opinion specifically goes out of the way to take on Justice Gorsuch claims that she is not analyzing the major question doctrine properly and that he is the better textualist.
  2. The major question doctrine situates text in context. As such, it is perfectly permissible to use background legal conventions, common sense, and constitutional structure to ascertain a text’s most natural meaning
  3. Since Article I grants all legislative power to Congress, the reasonable interpreter would expect Congress to make the big time policy calls itself rather than pawn them off to another branch.
  4. When it comes to a power that Congress gives away, it is not necessary for Congress to always speak precisely to that major power when it does so. Less obvious clues can do the trick, but no such clues are present here.
  5. The major question doctrine does not impose a clarity tax on Congress.

 

VI

Justice Kagan Concurring Opinion

 

  1. The opinion also takes on Justice Gorsuch with respect to his view that Justice Kagan not analyzing the matter correctly.
  2. The statute is so clear as to where the authority lies and the scope of that authority, it is unnecessary to invoke the major question doctrine at all.
  3. The government not only fails to satisfy a strict test, they also failed to satisfy the normal one.
  4. Statutory construction makes clear that the President has the ability to regulate but not to impose taxes, in this case on imports.
  5. When Congress has given presidential authority to levy tariffs in the past they have used a combination of specific language and imposed tight restraints on the power given.
  6. No President in the past has ever understood this particular statute to authorize imposing tariffs.

 

VII

Justice Jackson’s Concurring Opinion

 

  1. It is perfectly sensible that when assessing a case involving the major question doctrine, legislative intent be factored in to any decision-making on the case.

 

VIII

Thoughts/Takeaways

 

  1. For those having read the actual opinion, the layout of this blog entry may be confusing as my layout doesn’t match the way the Court laid it out in terms of who joined what section of Chief Justice Roberts opinion. My layout tries to simplify the opinion’s format so that it is easy to keep track of what Justices are saying what in the majority opinion.
  2. The major questions doctrine involves extraordinary delegations of power.
  3. In many ways, the various opinions remind me of the debate over equal protection tiers. Chief Justice Roberts and Justice Gorsuch seem to suggest that when major questions are involved something akin to strict scrutiny must be satisfied before the delegation of power will be sustained. On the other hand, Justice Barrett seems to suggest something you can use intermediate scrutiny before the delegation of power will be sustained. The analogy is imperfect, but it is there nevertheless. That is, you could analogize the “clear precise,” language to strict scrutiny and the implicit language found in Justice Barrett’s concurring opinion to intermediate scrutiny.
  4. How a statute has been applied over the years matters a great deal in major question cases.
  5. The clues listed by Justice Gorsuch in his concurring opinion affords some guidance in how to go about and trying to figure out how a major question case might pan out. Those clues are not an exhaustive list nor does one clue predominate over the others.
  6. The very end of Justice Gorsuch opinion will be quoted and cited for a long time.
  7. Justice Kavanagh, Justice Thomas, and even Justice Kagan while disagreeing on the result all agree that the statute should drive interpretation in this case.
  8. This is not the first time that Justice Jackson had talked about legislative history being important. The Supreme Court until her arrival has clearly moved away from using legislative intent. My career has actually given me quite a bit of experience with the legislative intent concept, and so I find the various thoughts on how legislative intent might matter when deciding cases interesting to follow.
  9. When the major question doctrine first hit the scenes, I had concerns about how sparse the doctrine was with respect to what it might cover. It seemed that it could cover almost anything, including laws affecting those with disabilities. After reading this decision, I am much less concerned. It is clear that a majority of this court believes the major question doctrine only applies in cases of extraordinary delegation of powers. It will be interesting to see if the “intermediate scrutiny,” approach of Justice Barrett for the “strict scrutiny,” approach of Justice Roberts and Justice Gorsuch prevails in major question cases. Since the major questions doctrine is essentially a nuclear one, I can see the argument for any delegation of power in a major question situation must be authorized by clear precise language, but this debate is definitely worth following going forward.
  10. It will be interesting to see how this case affects other cases going forward. There are several cases pending before the Supreme Court reaching the issue of President Trump’s use of presidential powers. The language in the various opinions of this case strongly suggests, but you never know, that this will not be the last case where the Supreme Court limits the authority of the President.

Before getting started on the blog entry of the week, an update on the Beaumont Hospital case that we have blogged on twice before. See this blog entry. The update is a consent decree was signed requiring training and a $30,000 payment to the plaintiff. It also has a length of 18 months. I always wonder who does the training when lawsuits get resolved and how serious of an effort is made to ensure that the trainer is qualified to do the training.

 

Turning to this week’s blog entry, it discusses the latest guidance issued jointly by the EEOC and OPM on remote work. The blog is divided into two categories: general thoughts; and the guidance itself with my thoughts/takeaways appearing at the end of each question.

 

I

General Thoughts

 

  1. A person with a disability will inevitably read the tone of this document as strongly suggesting that persons with disabilities are not welcome at the federal government as employees, at least not in the way they used to be in the past.
  2. Lawyers representing federal employees can expect an increase in business.
  3. At least with respect to remote work, EEOC/OPM is making clear that they have no intention of observing the do’s and don’ts of the interactive process, here. In particular, the interactive process at least with respect to remote work, will be an adversarial one.
  4. Persons with disabilities unlikely played a significant role in drafting this document for a couple of reasons. First, there are several problematic features of this guidance with respect to ADA compliance. Second, the implicit message as well as some of the explicit language used is not something a person with a disability would typically get on board with.

 

 

II

The Guidance Itself with My Thoughts/Takeaways Contained Therein

 

Frequently Asked Questions from the Federal Sector about Telework Accommodations for Disabilities

The President has instructed executive agencies to “return to work in-person . . . on a full-time basis . . . consistent with applicable law.”[1] Many agencies have requested assistance from the EEOC and OPM to ensure their implementation of the President’s instruction remains consistent with the Rehabilitation Act of 1973. The Rehabilitation Act (the “Act”), as relevant here, provides equal employment opportunities for covered Federal employees with disabilities, including through reasonable accommodation.[2] Prior to the President’s return-to-office order (and continuing after), many Federal employees with disabilities have requested and received telework. Among other topics, this FAQ aims to assist agencies in identifying when they are required to grant or continue telework accommodations, when they are permitted to rescind, modify, or deny telework accommodations, and how they can more effectively structure their processes for telework accommodations moving forward.[3]

  1. What is telework and what are the different types of telework?Neither the Rehabilitation Act nor the Americans with Disabilities Act references or defines telework. In practical terms, “telework” refers to work performed at a location other than the employer-controlled worksite.[4] Very often telework will be performed at the employee’s home.This FAQ touches on three common types of telework: full-time telework, recurring or routine telework, and situational telework. Full-time telework, unsurprisingly, means the employee teleworks full-time (also referred to as remote work). Recurring or routine telework means the employee teleworks on a regularly scheduled (but less than full-time) basis, for example one day a week, two days a week, and so on. Situational telework refers to temporary telework in response to extenuating circumstances, for example allowing an employee with a disability to work from home for a set duration while they recover from a medical procedure. Situational telework has a foreseeable end and is by its nature infrequent and conditional.

 

My thoughts: What this guidance is calling recurring or routine telework is more often thought of as hybrid work.

  1. What is a reasonable accommodation? And when does telework constitute a reasonable accommodation?Both the Rehabilitation Act and the Americans with Disabilities Act use the phrase “reasonable accommodation.” But neither defines it. The statutes do, however, provide examples of certain reasonable accommodations, and from these it can be inferred that reasonable accommodations entail “change[s] in the work environment or in the way things are customarily done” that provide equal employment opportunity for individuals with disabilities.[5] As to when an employer is required to make these changes, the EEOC has long recognized that “[t]here are three categories of reasonable accommodations [under the Act].”[6] These are (1) accommodations that enable applicants with disabilities to participate in the application process; (2) accommodations that enable employees with disabilities to perform the essential functions of their positions; and (3) accommodations that enable employees with disabilities to enjoy equal benefits and privileges of employment as are enjoyed by employees without disabilities.[7], [8]Whether telework constitutes a possible reasonable accommodation depends on whether it serves one of these purposes. Telework that does not serve one of these purposes, such as telework that is primarily for the employee’s personal benefit, is not a recognized reasonable accommodation under the Act.[9] This FAQ focuses primarily on recurring or full-time telework as an accommodation to enable an employee to perform essential job functions.

 

My thoughts: 1) I have not seen a list of situations for when reasonable accommodations are called for before this guidance. The list appears to come from compiling of case law, at least judging by the applicable footnote. The list makes sense when you think about it. That is, reasonable accommodation situations in employment will typically come up in any of four categories: A) accommodations enabling applicant with disabilities to participate in the application process; B) accommodations enabling employees with disabilities to perform the essential functions of their positions; C) accommodations enabling employees with disabilities to enjoy equal benefits and privileges of employment; and D) accommodations enabling an employee with the disability to pursue therapy or treatment for the disability. I would caution against getting boxed in and limiting yourself to only these categories. I do agree that privileges and benefits, application process, and essential functions of the job are all on the table when it comes to employment matters.

  1. Does the Rehabilitation Act require agencies to continue all previously granted recurring or full-time telework accommodations?No. After an accommodation has been granted, agencies are allowed to “assess whether there continues to be a need for reasonable accommodation based on individualized circumstances [including] whether alternative accommodations might meet those needs.”[10] It remains the case that “the employer providing the accommodation has the ultimate discretion to choose between effective accommodations.”[11] This means an employee is not necessarily entitled to their preferred accommodation in perpetuity.[12] An agency may therefore reevaluate a previously granted telework accommodation and replace it with an effective alternative reasonable accommodation.[13]Revisiting previously granted accommodations allows agencies to adjust to changed circumstances. And it avoids disincentivizing agencies from going beyond the bare minimum required by the Act. An agency may voluntarily exceed the Act’s base-line standard for any number of reasons. We have observed agencies exceed their reasonable accommodation obligations from a desire to be a supportive employer for disabled individuals or in response to the COVID-19 pandemic. But, “[when] an employer has voluntarily provided accommodations to the employee historically, that employer is not obligated to continue providing them and can discontinue such when they exceed what is legally required under the [Act].”[14] To hold otherwise would see an agency “punished for its generosity”[15] and “discourage[d] . . . from treating disabled employees in a spirit that exceeds the mandates of federal law.”[16]

 

My thoughts: I completely agree that accommodations are not locked in forever. However, taking away reasonable accommodation that already exist is a surefire recipe for litigation. Reevaluation needs to be done thoughtfully and respectfully. If not done that way, expect litigation.

  1. Does the Presidential Memorandum require agencies to rescind all existing recurring or full-time telework accommodations?  Does it require agencies to deny all pending and future requests for telework accommodations?No. Agencies should not take a blanket approach to rescind and deny all recurring or full-time telework accommodations. Per the Presidential Memorandum itself, decisions related to telework must be “consistent with applicable law.”[17] This includes remaining consistent with the legal obligation to provide reasonable accommodation under the Rehabilitation Act which may, in some cases, still require recurring or full-time telework or an effective in-office alternative to recurring or full-time telework.The contours of an agency’s legal obligation to provide reasonable accommodation will always be fact specific. And a distinction must be made between cases where telework is the only effective reasonable accommodation for a qualified employee with a disability and cases where telework is just one of several effective options. When there are several reasonable and effective options, an agency may choose an accommodation other than telework.

    We strongly caution agencies against revoking previously granted telework without first making an individualized determination in each case. Many of the ensuing entries in this FAQ provide assistance on how to conduct such an individualized assessment.

    If an agency takes a blanket approach and revokes previously granted telework without first making an individualized assessment, it risks liability in those cases where an individualized assessment would have shown that telework was either the only possible effective accommodation or that an in-office alternative was necessary to maintain an effective accommodation in lieu of telework. Since the agency is already on notice of the employee’s need for accommodation, it would not be reasonable or effective for the agency to revoke a previously granted telework accommodation and simply tell the employee to submit a new accommodation request.

    We recognize that making individualized determinations on all previously granted telework accommodations will take time and effort. It is impracticable, and likely impossible, for a large agency to make simultaneous decisions in all cases. Decisions will likely be made on a rolling basis. This means some employees may have telework accommodations rescinded or modified earlier than others. We recommend agencies apportion this task with an eye towards minimizing disruption. An agency could reevaluate telework accommodations in tranches based on geographic location or organizational unit so that all employees in the same location or within the same unit receive decisions around the same time.

 

My thoughts: 1) Completely agree that a blanket approach is a bad idea; 2) I also agree that where there are several effective reasonable accommodations, an employer may choose an accommodation other than telework. I am a bit troubled by the term “reasonable and effective options,” as it makes it a bit adversarial. I would have preferred “accommodations,” instead of the word, “options;” 3) completely agree that revoking previously granted telework without an individualized determination is something that should not be done; 4) the final paragraph of this section makes clear that any request for remote work or for keeping remote work previously allowed generates an adversarial process.

  1. When and how may an agency reevaluate and modify a previously granted recurring or full-time telework accommodation?Reevaluation and modification of a reasonable accommodation are important steps in the on-going interactive process. An agency may, for example, find it helpful to reevaluate a significant accommodation such as recurring or full-time telework once a year to confirm the accommodation remains effective and manageable. And agencies should situationally reevaluate in response to material changes, such as a change in the employee’s condition, a change in job requirements, a change in operational needs, a change in law, etc. The President’s return-to-office instruction is a major change to agencies’ operational circumstances, and when circumstances change, agencies may wish to reevaluate previously granted recurring and full-time telework accommodations to ensure compliance with the President’s instruction.After reevaluation, and if supported by the individualized assessment, an employer may allow the employee to continue on telework if doing so is necessary to ensure continued compliance with the Rehabilitation Act. If, however, reevaluation and individualized assessment demonstrate that telework is not necessary under the Act, the agency may replace a previously granted recurring or full-time telework accommodation with a reasonable and effective in-office option (or combination of options). This can include, but is not limited to, assistive devices, modified equipment, environmental modifications (sound, smell, light, etc.), job restructuring, modified or flexible work scheduling, etc. It can also include a reduction in telework, combined with in-office accommodations, provided the net result is still reasonable and effective.

    It may happen that reevaluation demonstrates an employee is no longer, or perhaps was never, entitled to any reasonable accommodation. This can happen when intervening changes in the employee’s condition or work circumstances obviate the original need for accommodation. Or the agency previously was unaware of or misapprehended the Act’s scope. Or the agency may have voluntarily granted an over-generous accommodation even though the Act did not require it. Regardless, if an employee is not presently entitled to any reasonable accommodation, an agency may rescind a previously granted telework accommodation without offering any alternative.

 

My thoughts: 1)The clear message of this section is full-time remote work is clearly disfavored and will only be granted in exceptional circumstances; 2) a hybrid situation can be an alternative to full-time remote work; 3) the very last sentence of this section beginning with “regardless,” suggests that any reasonable accommodation requests for a person with any reasonable accommodations is subject to review, and that it is entirely possible that the federal government will not engage in the interactive process. Certainly, the language can be construed as discouraging a person with a disability from seeking reasonable accommodations. Remember, under 29 U.S.C. §791, Title I of the ADA and its final implementing regulations are the applicable rules for employees of the federal government.

  1. What medical documentation can be requested when reevaluating a previously granted telework accommodation?Accommodation decisions, whether on an original request or on revaluation, must be evidence based. Agencies are therefore entitled to sufficient information to make their decisions. Sufficiency is a flexible standard, and what amounts to sufficient information will vary from case to case. At one end of the spectrum, an agency is unlikely to need much if any additional information from an employee when the disability, functional limitations, or need for accommodation are obvious.[18] In the telework context, however, some requestors may have functional limitations or accommodation needs that are not obvious. It is foreseeable, then, that telework accommodations may entail in-depth inquiries from an agency before a sufficiently informed decision can be made.When it comes to reevaluating telework, in the best-case scenario ample information was already gathered through the original request, and this information will be sufficient to decide on reevaluation whether telework should be continued, modified, or replaced. In this case, all agencies may have to do is confirm with the employee that the previously supplied information is still accurate. But it is also possible that agencies may find that many original decisions to grant telework were made without sufficient information. In these cases, an agency likely will need to make new inquiries, including requests for updated medical documentation, to obtain sufficient information for a reevaluation decision.

    That the agency was previously satisfied with an insufficient record does not forfeit its option to revisit the issue and make a new decision based on a sufficient one. As we discussed above, there are any number of operational or policy reasons an agency may have previously gone above and beyond the statute’s requirements, including by refraining from making medical inquiries or by exempting employees from supporting their requests with sufficient information. The law does not now punish these agencies for their previous largesse.

 

My thoughts: 1) It is nice to see that the federal government recognizes that excessive documentation is problematic under the ADA. How much documentation can be justifiably requested depends on the situation. When the disability, functional limitation, or need for accommodations are obvious, not much if any additional information is needed. Of course, what is “obvious,” in many situations is in the eyes of the beholder. Your best bet, is to keep any requests for additional information narrowly focused on the essential functions of the job. In-depth inquiries are always risky and should only be done when absolutely necessary; 2) the paragraph beginning with “when it comes,” has a clear message that any interactive process will be an adversarial one; 3) the final paragraph talking about an insufficient record can also be problematic. In my practice, I have seen “insufficient record,” be very much a determination that is in the eyes of the beholder and may not be insufficient in an objective sense. So, watch out for that.

  1. May an agency ask an employee’s health care professional about mitigating measures or self-accommodations the employee could take that would permit the employee to work in the office?Yes. “Determining the need for a reasonable accommodation . . . can take into account both the positive and negative effects of a mitigating measure.”[19] An agency may ask a health care professional about such measures and whether they would permit the employee to work in the office.Reasonableness is the cornerstone of the accommodation process. And the need to consider mitigating measures is baked into the concept of reasonableness. “Reasonable” is a relational term and invites a comparison of relative costs and cost-avoidance capabilities between an employer and employee.[20] Assessing the relative costs and cost-avoidance capabilities requires considering mitigating measures. And in some cases, the comparison will show that it is unreasonable for an employer to provide a high-impact accommodation like telework when the employee could effectively and reasonably self-accommodate.

    To illustrate, in the case of an employee requesting full-time or recurring telework due to a mobility impairment, the agency may ask a health care professional whether a mobility assistance device would be suitable for the employee’s condition and whether such device would enable them to work in the office. If the health care provider agrees the device would be suitable and would enable the employee to work in the office, then a reasonable approach could be for the employee to obtain the device and for the agency to ensure that the workplace is accessible to the device.

    An agency should not, however, deny an accommodation because an employee has declined to pursue a particular medical treatment, such as medication or surgical procedure, that might mitigate their condition. The right to make personal health choices and the right to receive reasonable accommodation are not mutually exclusive.

    Agencies are further reminded that the underlying determination whether an employee’s condition constitutes a disability must be made “without regard to the ameliorative effects of mitigating measures.”[21]

 

My thoughts: 1) With respect to mitigating measures, it is important to note an important distinction. Mitigating measures, with the exception of glasses after the amendments, cannot be used to determine whether a person has a disability. However, it makes perfect sense to consider mitigating measures when it comes to determining what reasonable accommodations might be in play; 2) with respect to the very last sentence of the paragraph beginning with “to illustrate,” there is a strong suggestion that the employee is responsible for paying for their own reasonable accommodations for any device that would enable them to work in the office. That is definitely not the case. See this blog entry. The ADA is quite specific that it is the employer’s responsibility to pay for any reasonable accommodations; 3) completely agree that the right to make personal health choices and the right to receive reasonable accommodations are not mutually exclusive.

  1. What should an agency do if it is aware of evidence that appears to conflict with an employee’s need for a telework accommodation?An agency may consider conflicting or contradictory evidence. In doing so, an agency should take care to base its decisions on the best available evidence. An agency should give due weight to contradictory evidence that is reliable.[22] And it should discount contradictory evidence that is unreliable.Further, an agency may consider evidence from sources other than the employee or the employee’s health care provider. For instance, if an employee and their health care professional are unable to produce sufficient reliable information, the agency may, in limited circumstances, require a medical examination or record review by the employer’s own designated health care professional, provided the inquiry remains job related and consistent with the business necessity of making a well-informed decision on the reasonable accommodation request.[23] Agencies should be mindful of the limitations at 5 C.F.R. Part 339 when offering or requiring employees to undergo an examination.

    Though an agency is not necessarily limited in the kinds and sources of evidence it may consider, this is not a license to engage in fishing expeditions to undermine an employee’s request for accommodation. An agency’s evidence gathering must be undertaken with a reasonable purpose and through reasonable means. Evidence gathering that is unreasonably broad or invasive may unlawfully interfere with an employee’s right to seek and enjoy an accommodation.[24]

    That being said, an agency is not required to turn a blind eye to evidence tending to show that an employee is not entitled to an accommodation or that an employee acted in bad faith. Agencies have reported instances when employees assert they cannot drive to commute to work but are routinely observed doing so for personal activities. In other cases, employees assert they cannot perform work functions involving walking or other biomechanical motions, yet their public social media shows them routinely engaging in strenuous physical activity outside of work. An agency may follow-up on these incongruities. And if the follow-up persuasively shows the employee is not entitled to accommodation or acted in bad faith, the employer may deny or rescind the accommodation.

 

My thoughts: 1) The second ¶ of this section that begins with “further, an agency…,” has a couple of problems with it. First, there are restrictions as to when an employer may insist on a medical exam/disability-related inquiries of a current employee. The guidance seems to brush off the significance of that at least a little bit. Second, the cost of any medical examination should not be on the employee. See this blog entry for example. There are also statutory and/or regulatory provisions across all three titles that prohibit surcharges for reasonable accommodations/modifications; 2) I can’t believe the phrase “turn a blind eye,” appears in a document like this. People with disabilities will find this offensive.  This entire ¶ where “turn a blind eye,” appears makes it quite clear implicitly that it is just going to be assumed that any request for reasonable accommodation involves an employee acting in bad faith. This approach is inherently adversarial and a recipe for future litigation.

  1. Who within an agency should be responsible for reevaluating telework accommodations?As a general matter, we encourage flexibility in the reasonable accommodation decision making process. On the one hand, this can mean allowing for decentralized decision making by front-line supervisors when the underlying request is straightforward and low impact. But flexibility can also mean adopting a centralized model when appropriate. Agencies can choose, for example, to centralize review for high impact or other significant accommodations, including telework. A centralized review process helps ensure uniform compliance with the Presidential Memorandum. And it provides consistent results for similarly situated employees. An agency may also choose to require centralized SES-level sign-off for certain categories of accommodations, including for recurring or full-time telework or for accommodations with an anticipated cost above a certain threshold. Any centralized review and approval process should still include an individualized assessment of each accommodation request, and should not result in or excuse unreasonable delays.[25]

 

My thoughts: I can see why centralized handling of reasonable accommodation requests can make sense. Even then, it is critical to do an individualized analysis as everybody deals with disability differently and manages it differently even the same disability.

  1. What are an agency’s options when a previously granted recurring or full-time telework accommodation removed essential functions?Many newly teleworking employees stopped performing essential functions when their workplaces were closed and their jobs upended during the COVID-19 pandemic. Even in workplaces that stayed open, many employers, after considering the unique exigencies related to the pandemic, voluntarily granted telework accommodations which included removing essential functions.Even at the pandemic’s height, the EEOC anticipated that employers would eventually need to recall employees from telework and restore previously excused essential functions. We then advised, and now reiterate:

    The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. These are fact-specific determinations. The employer has no obligation under the [Act] to refrain from restoring all of an employee’s essential duties at such time as it chooses to restore the prior work arrangement, and then evaluating any requests for continued or new accommodations under the usual . . . rules.[26]

    Now that the Federal workplaces are fully re-opened—and Federal employees restored to the full range of their pre-pandemic essential functions—agencies may find that regularly attending work on-site is essential to most jobs, especially the interactive ones.”[27] This includes positions that require “supervision and teamwork.”[28]

    Still, “[d]etermining whether a specific job has essential functions that require in-person work [entails] a case-specific inquiry.”[29] Rather than generalizing from the emergency conditions of the pandemic, that inquiry must take into account the employer’s present operations and present needs.

 

My thoughts: 1) I agree that essential functions of the job can evolve. However, that includes the pandemic changing what the essential function of a job is. That is, does it make sense to revert to an essential function of a job that existed before the pandemic when a person benefited the agency equally in the essential functions of the job as it came to be during the pandemic?; 2) expect a lot of litigation over whether there is an objective basis to require a person to come in to work full time when that person has a disability; 3) I disagree in light of technology today that “regularly attending work on-site is essential to most jobs, especially the interactive ones.” This simply isn’t true anymore given the technology that exists, and courts are beginning to recognize as much. The best case for figuring out whether on-site attendance is required is the case we discussed in this blog entry. The pandemic does mean that for the first two criteria set forth in Samper that  “in person,” should be added as technology has changed since that case.

  1. How should an agency respond if an employee, previously on recurring or full-time telework accommodation, asserts a new alternative in-office accommodation is or will be ineffective?The agency should give the employee an opportunity to explain in detail why the new in-office accommodation is or will be ineffective and to provide evidence to back up the assertion. If the employee convincingly shows that the in-office accommodation is or will be ineffective, the agency should consider if different or additional in-office modifications would make it effective.A distinction can be drawn between an employee claiming prospectively that an accommodation will be ineffective, and one having tried it out. If the agency reasonable believes, and the available evidence supports, that an in-office accommodation will be effective, it is not enough for the employee to simply claim, without sufficient evidence of their own, that an in-office accommodation will be ineffective. Under these circumstances, an agency may insist that the employee report to the office and try the accommodation out first. If the employee has returned to the office, and if their experience having returned convincingly shows that all in-office accommodations are ineffective, then the agency should consider placing the employee back on recurring or full-time telework, provided doing so does not remove essential functions or result in a demonstrated undue hardship on the agency’s operations.

    As at every point in the interactive process, the focus is on evidence-based decision making. When an agency has modified a previously granted recurring or full-time telework accommodation, the employee’s first-hand account of how the modification is playing out will be highly relevant. However, an employee simply saying the accommodation is ineffective will not suffice. The employee’s account needs to show the agency how, despite the accommodation, the employee is unable to adequately perform their essential functions or enjoy a benefit or privilege of employment.

 

My thoughts: I find the answers in this particular section to be terribly problematic in many respects: 1) It makes clear that the interactive process is not much on the employer side but an awful lot on the employee side. In particular, terms use include “explain in detail,” and “employee convincingly.” Both of those make clear that in interactive process where both sides are exchanging views is not what is going on here. Rather, it seems to be more like what a plaintiff has to do to overcome in many jurisdictions a motion for summary judgment. This just is not how the interactive process works; 2) another indication that the interactive process is one sided in this document is that the document makes a distinction between prospectively believing accommodation won’t work v. having tried it out. Such a distinction ignores the world of people with disabilities. A person with a disability can often have a very good idea that a specific accommodation won’t work out in advance. This line of thinking requires what would be in many cases a futile act in order to continue with the interactive process. Again, not how the ADA works; 3) I don’t know where this “convincingly,” standard is coming from as I have not seen it in the case law; 3) the very last paragraph of this section all but states that any request for a reasonable accommodation is presumed to be gaming the system; 4) while the federal government has resources to fight off the inevitable failure to accommodate/violations of the interactive process claim that are going to follow, private employers may not be so lucky. I personally don’t recommend any employer, federal or private, taking the approach detailed in this section, unless the employer really enjoy spending lots of money on litigation counsel.

 

  1. What are an agency’s options if an employee refuses to comply with an agency’s decision to modify or rescind a telework accommodation and order for the employee to report to the office?An employee who refuses to comply with an instruction to report to the office is absent without leave. If the employee’s refusal to comply follows modification or rescission of a previously granted telework accommodation, the agency should first confirm the employee accurately understands the modification or rescission decision and its rationale, including, if applicable, why the agency concludes the employee can be reasonably and effectively accommodated with in-office measures. And the agency should invite the employee to suggest additional or alternative in-office accommodations that would be reasonable and effective under the circumstances.  If the employee thereafter still refuses to comply with the return-to-office instruction, the agency should mark them AWOL and proceed with any appropriate disciplinary action as it would for any other AWOL employee.An employee whose telework accommodation has been modified or rescinded has the right to file a complaint with the agency’s Equal Employment Opportunity office.  Filing a complaint does not entitle the employee to telework during the pendency of the complaint.

 

My thoughts: My only concern with this section is the term “reasonable and effective.” It would have created a more disability sensitive tone if the term was only “effective.”

  1. Is an agency required to provide recurring or full-time telework to employees with disabilities for reasons unrelated to work?No. We reiterate that the EEOC has long recognized that “[t]here are three categories of reasonable accommodations [under the Act].”[30] These are (1) accommodations that enable applicants with disabilities to participate in the application process; (2) accommodations that enable employees with disabilities to perform the essential functions of their positions; and (3) accommodations that enable employees with disabilities to enjoy equal benefits and privileges of employment as are enjoyed by employees without disabilities.[31] It follows that an accommodation that does not meet at least one of these categories would not be required under the Act. For instance, “th[e] obligation [to provide reasonable accommodation] does not extend to the provision of adjustments or modifications that are primarily for the personal benefit of the individual with a disability.”[32]The first category, accommodations that enable employees with disabilities to perform essential functions, is the most commonly implicated. But to say that an accommodation must enable an employee to perform essential functions does not mean that an agency is only required to provide those accommodations which are strictly necessary to perform essential functions.[33] What the law does not require, however, is accommodations that only mitigate symptoms without also enabling the performance of essential functions.

    To illustrate, some employees who request full-time or recurring telework assert that telework would help them manage their condition, mitigate their symptoms, or improve their quality of life. But these employees often do not explain how telework would also enable them to perform essential functions of their jobs. Possible symptom mitigation does not, by itself, establish an entitlement to telework as a reasonable accommodation. To say that an agency as an employer must provide accommodations that only mitigate symptoms of a disability without also enabling the performance of essential functions is indistinguishable from requiring the agency to directly treat the disability, something courts and the EEOC have repeatedly stressed it need not do.[34]

 

My thoughts: 1) It is always dangerous to get locked in when it comes to whether reasonable accommodations are in order. Preventive law demands considering reasonable accommodations whenever a person with a disability needs to get to the same starting line as a person without a disability with respect to their essential functions of the job or any other aspect of their employment, including applying for employment; 2) I have absolutely no idea what the phrase, “what the law does not require, however, is accommodations that only mitigate symptoms without also enabling the performance of essential functions,” actually means. It does make you wonder whether this phrase gives permission to federal agencies to go out of their way to not allow service animals that do not explicitly tie into the essential functions of a person with a disability particular job; 3) a clear implicit message exists that any request for remote work full-time as a reasonable accommodation will have to have overwhelming evidence behind it after being subject to an adversarial process in order to be granted. Again, not the way the ADA interactive process works.

  1. An employee asserts they experience anxiety or other disability-related symptoms when working in the office. Is the agency required to provide recurring or full-time telework as an accommodation?It is inevitable that some employees will experience disability-related symptoms in the workplace. For instance, many employees with mental health impairments assert they experience anxiety in the workplace. But the Act does not create a general right to be free from all discomfort and distress in the workplace, including anxiety.[35] Instead, the Act entitles disabled employees to a fair shot to do their jobs and enjoy the benefits and privileges of those jobs on comparable footing as their non-disabled peers. When disability-related symptoms arise in the workplace, the question is first whether the symptoms impose a material barrier to the employee’s ability to work in the office or enjoy a benefit or privilege of employment. If not, then reasonable accommodation is not at issue.[36]Simple observation can be the best approach to telework requests in this vein. If an employee requests telework due to anxiety or similar distress in the workplace, the employer should first observe the employee perform their duties in the workplace. If the employee is able to perform to the employer’s satisfaction, then anxiety is likely not a material barrier to equal employment opportunity. In the run of cases, common anxiety, without more, is unlikely to impose a material barrier.

    If there is a demonstrated material barrier, however, the employer must consider reasonable accommodation, but not necessarily telework. Many common situations can be reasonably and effectively accommodated with in-office measures.[37] Telework is mandatory under the Act only if all other options are demonstrably ineffective.

 

My thoughts: Run-of-the-mill anxiety and generalized anxiety disorder (anxiety as a mental health condition), are very different things; 2) I am not sure what “material barrier,” necessarily means. I do agree with the proposition that a person is entitled to reasonable accommodations of a barrier in the workplace, whether that be related to privileges and benefits of the workplace or a particular job; 3) whether a person is able to perform a job to an employer’s satisfaction is not relevant to whether the employee is entitled to a reasonable accommodation. The second ¶ of this section seems to suggest that if an employee is able to perform a job to an employer’s satisfaction, then they are not entitled to reasonable accommodation for anxiety. That just isn’t true; 3) this guidance says that telework is a last resort option only. In practice, that certainly may be the case. However, I am not aware of any case law saying that telework is a matter of a last resort only. Of course, that is not the same when it comes to reassignment. Lots of case law exists that reassignment is an option of last resort.
 

  1. Is an agency required to provide recurring or full-time telework to disabled employees with difficult or lengthy commutes?Generally, no. Where the length and means of the commute are outside of the employer’s control, it is unreasonable to require the employer to excuse the employee from commuting. “[I]n most cases, an employer has no duty to help an employee with a disability with the methods and means of [their] commute to and from work, assuming the employer does not offer such help to employees without disabilities.”[38] Rather, “it is the employee’s responsibility to arrange how [they] will get to and from work.”[39]While an agency may not be required to altogether eliminate a disabled employee’s commute through telework, it may need to make some workplace modifications, such as flexible work scheduling, to enable the employee to effectively accomplish their commute and access the worksite.[40] And telework of limited duration may be reasonable if used to give the employee time to relocate closer to the worksite or secure different means for their commute.

My thoughts: Whether a commute needs to be reasonably accommodated can get very complicated. See this blog entry for example. The basic proposition is true that the employee bears the responsibility for getting to and from work. However, particular facts are important. Even the guidance realizes that a blanket rule for denying accommodations with respect to the commute, is not something that would be in order.

 

  1. When can an agency offer situational telework?The Presidential Memorandum still permits agencies to consider limited situational telework even in cases where situational telework would not be the only reasonable and effective accommodation.[41] An example illustrates the point. When an employee goes through a course of treatment or a convalescence of defined duration, situational telework is often just one reasonable and effective accommodation option. In many cases, the employee’s need for accommodation could also be reasonably and effectively addressed through a leave of absence. But when the choice is between leave or situational telework, situational telework is often the superior option for the agency in efficiency terms since the employee while on telework continues contributing to the agency’s operations. A leave of absence, while perhaps not amounting to an undue hardship, may nevertheless impose meaningful costs on the agency as it either must find a replacement for the employee or else tolerate a production shortfall during the employee’s absence. Since the intent of the Presidential Memorandum is to promote efficiency in the civil service, it likely contemplates that agencies will continue to provide situational telework as a reasonable accommodation for disability when doing so promotes efficiency even if the Act would allow the agency to pursue a less efficient non-telework alternative such as leave.

 

My thoughts: I have no concerns with this particular response as set forth in the guidance.

  1. Is an agency required to offer situational telework when an employee has a periodic “flare-up” or elevated symptoms related to their disability?No, situational telework is not necessarily required. It remains the case that the agency as employe may choose between effective reasonable accommodations. For periodic flare-ups, leave can be a reasonable and effective option which the agency may choose instead of situational telework. Federal employees receive a generous allotment of paid sick leave which is meant to provide security against illness, including periodic flare-ups. Granting sick leave (or other accrued paid time off  or leave without pay) during a flare-up gives the employee time to recover without interference from work duties[42] . In some cases, it is possible that allowing an employee to telework in lieu of leave would stymie their recovery and delay the healing process.Though an agency is not required to grant situational telework during a periodic flare-up, it may still want to do so when the result is a net efficiency gain. An agency should consider whether the flare-up would materially impair the employee from performing work while teleworking and whether there is a foreseeable operational benefit to having the employee telework in lieu of leave. A net efficiency gain is unlikely for employees performing routine or fungible duties, but one may exist if the employee is performing high-impact or unique work.

 

My thoughts: 1) The phrase, “In some cases, it is possible that allowing an employee to telework in lieu of leave would stymie their recovery and delay the healing process,” is a good example of ableism, i.e. the message is that people without disabilities know what is best for a person with a disability; 2) the very last ¶ of this section sets forth a legal standard that simply doesn’t exist. For episodic disabilities, the question isn’t whether the flareup materially impairs the employee from performing work, but rather how the flareup deals with the ability of the employee to perform the essential functions of their job with or without reasonable accommodations. The amendments to the ADA makes clear that episodic conditions can be disabilities if they are such when active.

  1. Are individuals that have requested or received a telework accommodation protected from retaliation?Yes. It is “unlawful to coerce, intimidate, threaten, or interfere with any individual . . . on account of his or her having exercised or enjoyed [the right to request and receive reasonable accommodation for disability].”[43] Agencies must take a respectful and evenhanded approach when addressing new accommodation requests or reevaluating previously granted ones. And they may not target an employee for unfavorable treatment because the employee requested or previously received an accommodation.

 

My thoughts: I have no concerns with this particular section.
 

  1. Is this document binding?No. The EEOC is the agency tasked by Congress to coordinate the Federal government’s antidiscrimination efforts, and as such it may properly offer assistance to other agencies. Our assistance is not itself binding. This document is limited as a Technical Assistance designed to point agencies to pre-existing EEOC guidance, as well as Federal case law, that bears on telework accommodations.Our pre-existing guidance on this topic are only “a body of experience and informed judgment to which courts and litigants may properly resort for guidance.”[44] We remind agencies and other parties that courts might not defer to our views.[45] It also bears noting that court views can also change or evolve.

 

My thoughts: The guidance has to say this in light of Loper Bright. It is simply wrong to suggest that Loper Bright always works to the detriment of a person with a disability as that is just not the case. For the reasons discussed in the various “my thoughts,” it is entirely possible that some of these interpretations set forth in the guidance are not going to be persuasive in the courts as they contradict any of the ADA statutory provisions, existing regulations, or the common law interpreting Title I of the ADA and its final implementing regulations.

  1. Are there resources to help agencies identify and implement effective alternatives accommodations?Yes. Agencies can find additional information at:

ADA National Network (formerly Disability and Business Technical Assistance Centers – DBTACs)

Phone: 1-800-949-4232 (Voice/TTY)

The ADA National Network consists of ten federally funded regional centers that provide information, training, and technical assistance on the Americans with Disabilities Act (ADA). Each center partners with local business, disability, government, rehabilitation, and professional networks to deliver current ADA information.

My thoughts: The technical assistance centers do a lot of good work. For a deeper dive and more high level training, training is a large part of my practice.

Computer/Electronic Accommodations Program (CAP)

Website: www.cap.mil

CAP provides assistive technology and devices free of charge to participating Federal agencies. Requests must be submitted by the employing agency. CAP does not accept direct requests from individual employees or applicants.

Job Accommodation Network (JAN)

Phone: 1-800-526-7234 (Voice) | 1-877-781-9403 (TTY)

Website: http://askjan.org

JAN, funded by the U.S. Department of Labor’s Office of Disability Employment Policy (ODEP), provides free, expert, and confidential guidance on workplace accommodations and disability employment issues. JAN offers extensive resources on ADA requirements and practical accommodation options for a wide range of disabilities.

My thoughts: The job accommodation network is a must go to resource. It can be useful any time you are in need of trying to figure out what reasonable accommodations/modifications might work. It doesn’t even have to be employment related. They do tremendous work.

[1] Presidential Memorandum, Return to In-Person Work (Jan. 20, 2025).

[2] The Rehabilitation Act, as presently enacted, does not include stand-alone liability standards for employment discrimination claims brought by Federal employees. The Act instead incorporates the standards from the Americans with Disabilities Act (ADA), as amended, including the provisions related to reasonable accommodation. 29 U.S.C. § 791(g); 42 U.S.C. § 12112(b)(5). Federal court opinions and EEOC guidance discussing the ADA standards are therefore applicable to the Rehabilitation Act where appropriate we take into account Federal cases arising under state laws mirroring the ADA.

[3] Throughout this FAQ we will use the phrase “telework accommodations” to refer exclusively to accommodations related to disability. Unless specifically stated, this FAQ does not address telework given as an accommodation for reasons other than disability, such as for religion or pregnancy

[4] See 5 U.S.C. § 6501(3) (“The term ‘telework’ or ‘teleworking’ refers to a work flexibility arrangement under which an employee performs the duties and responsibilities of such employee’s position, and other authorized activities, from an approved worksite other than the location from which the employee would otherwise work.”).

[5] Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, General Principles, U.S. Equal Emp. Opportunity Comm’n (Oct. 17, 2002) (quoting 29 C.F.R. pt. 1630 app. § 1630.2(o) (1997)).

[6] Id.

[7] 29 C.F.R. § 1630.2(o); 29 C.F.R. pt. 1630 app. § 1630.9 (2024); EEOC Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act, U.S. Equal Emp. Opportunity Comm’n, Section III(3) (Jan. 1, 1992).

[8] Several circuits list a fourth category: accommodations that enable a disabled employee to pursue therapy or treatment for their disability. Sanchez v. Vilsack, 695 F.3d 1174, 1181 (10th Cir. 2012); Fedro v. Reno, 21 F.3d 1391, 1395-96 (7th Cir. 1994); Buckingham v. United States, 998 F.2d 735, 740 (9th Cir. 1993). We do not think these courts’ recognition of this additional category necessarily conflicts with our smaller enumeration. An accommodation to pursue treatment can, we think, fit under either the essential functions or benefits and privileges category, depending on the circumstances.

[9] 29 C.F.R. pt. 1630 app. § 1630.9.

[10] What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, U.S. Equal Emp. Opportunity Comm’n, Question D.20 (May 15, 2023).

[11] 29 C.F.R. pt. 1630 app. § 1630.9.

[12] See Mullin v. Sec’y, U.S. Dep’t of Veterans Affs., 149 F.4th 1244, 1255 (11th Cir. 2025); Noll v. Int’l Bus. Machines Corp., 787 F.3d 89, 95 (2d Cir. 2015); E.E.O.C. v. Agro Distribution, LLC, 555 F.3d 462, 471 (5th Cir. 2009); Emerson v. N. States Power Co., 256 F.3d 506, 515 (7th Cir. 2001).

[13] Additional resources for identifying and implementing alternative accommodations are provided at the end of this FAQ.

[14] D’Onofrio v. Costco Wholesale Corp., 964 F.3d 1014, 1022 (11th Cir. 2020).

[15] Van Zande v. State of Wis. Dept. of Admin., 44 F.3d 538, 545 (7th Cir. 1995).

[16] Myers v. Hose, 50 F.3d 278, 284 (4th Cir. 1995); see also Perdue v. Sanofi-Aventis U.S., LLC, 999 F.3d 954, 961 (4th Cir. 2021) (“We applaud [the employer] for going beyond its legal obligations under the [statute] in accommodating [the employee’s] recovery. . . . But its generosity and overall flexibility does not raise the legal standard.”).

[17] Presidential Memorandum, Return to In-Person Work (Jan. 20, 2025).

[18] Enforcement Guidance: Disability Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, U.S. Equal Emp. Opportunity Comm’n, Questions 5 and 7 (July 26, 2000).

[19] Questions and Answers on the Final Rule Implementing the ADA Amendments Act of 2008, U.S. Equal Emp. Opportunity Comm’n, Question 16 (Mar. 25, 2008) (cleaned up for grammar and clarity).

[20] See Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995) (Calabresi, J.).

[21] 42 U.S.C § 12102(4)(E)(i).

[22] Fryson v. Fla. Agency for Health Care Admin., 696 F. Supp. 3d 1123, 1130 (N.D. Fla. 2023) (employer did not fail to provide reasonable accommodation when “[it] had good reason to think that [the employee’s] request for an indefinite continuation of her work-from-home status was premised on inaccurate, if not untruthful, information”).

[23] Enforcement Guidance: Disability Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, U.S. Equal Emp. Opportunity Comm’n, question 7 (July 26, 2000) (within the reasonable accommodation process “it is job-related and consistent with business necessity for an employer to ask an employee for reasonable documentation about his/her disability and its functional limitations”); id. at question 11 (explaining that an employer may require an employee to go to a health care provider of the employer’s choice where the employee provides insufficient documentation and does not provide the missing information in a timely manner after being alerted to the insufficiency).

[24] See 42 U.S.C. § 12203(b) (making it unlawful for an employer to interfere with an employee’s exercise and enjoyment of their rights under the ADAAA).

[25] The individualized assessment does not have to be done exclusively by the centralized decision maker. The centralized decision maker may review and appropriately rely on recommendations from a subordinate’s individualized assessment.

[26] What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, U.S. Equal Emp. Opportunity Comm’n, Question D.15 (May 15, 2023).

[27] E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 761 (6th Cir. 2015) (en banc) (punctuation cleaned up).

[28] Mason v. Avaya Commc’ns, Inc., 357 F.3d 1114, 1122 (10th Cir. 2004); see also Morris-Huse v. GEICO, 748 F.App’x 264, 267 (11th Cir. 2018) (noting that physical presence is an essential function when “the job required [employee] to interact with, coach, and lead a team of associates on a daily basis”).

[29] What You Should Know About COVID-19, Question D.15.

[30] See Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, General Principles, U.S. Equal Emp. Opportunity Comm’n (Oct. 17, 2002).

[31] 29 C.F.R. §1630.2(o); 29 C.F.R. 1630 Appx. § 1630.9; EEOC Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act, U.S. Equal Emp. Opportunity Comm’n, Section III(3) (Jan. 1, 1992).

[32] 29 C.F.R. pt. 1630 appx. § 1630.9.

[33] See, e.g., Bell v. O’Reilly Auto Enters., LLC, 972 F.3d 21, 24 (1st Cir. 2020) (that employee could “with some difficultly” perform essential functions without accommodation did not preclude them from seeking accommodations that would help them perform those functions); Stokes v. Nielsen, 751 F. App’x 451, 454 (5th Cir. 2018) (“[O]ur circuit has explicitly rejected the requirement that requested modifications must be necessary to perform essential job functions to constitute a reasonable accommodation.”).

[34] Brookins v. Indianapolis Power & Light Co., 90 F. Supp. 2d 993, 1004 (S.D. Ind. 2000) (finding that employer was not obligated to facilitate disabled employee’s treatment, such as by appointment scheduling,  as a reasonable accommodation); Burnett v. W. Res., Inc., 929 F. Supp. 1349, 1358 (D. Kan. 1996) (employer not required to provide rehabilitation services to disabled employee with knee impairment); Schmidt v. Safeway Inc., 864 F.Supp. 991, 996 (D.Or.1994) (“The employer is not required to pay for the [medical] treatment …, since the medical treatment benefits the employee both on and off the job, not just in his capacity as an employee.”); Enforcement Guidance: The Americans With Disabilities Act and Psychiatric Disabilities, U.S. Equal Emp. Opportunity Comm’n, Question 28 (Mar. 25, 1997).

[35] Gaul v. Lucent Techs., Inc., 134 F.3d 576, 581 (3d Cir. 1998) (rejecting disabled employee’s claim that the ADA entitles him to stress free work environment and noting “[i]t is difficult to imagine a more amorphous standard to impose on an employer”) (quotations omitted); Gonzagowski v. Widnall, 115 F.3d 744, 747–48 (10th Cir. 1997) (“[I]t is unreasonable to require an employer to create a work environment free of stress and criticism”); Pesterfield v. Tennessee Valley Auth., 941 F.2d 437, 442 (6th Cir. 1991) (“It would be unreasonable to require that [an employer] place plaintiff in a virtually stress-free environment and immunize him from any criticism in order to accommodate his disability”).

[36] Hopman v. Union Pacific Railroad, 68 F.4th 394, 401 (8th Cir. 2023) (noting that working without pain is not a benefit or privilege of employment).

[37] Ellis v. Tennessee, 603 F. App’x 355, 360 (6th Cir. 2015) (accessible bathroom and parking space were effective accommodations for employee’s Crohn’s disease); King v. McDonough, 596 F. Supp. 3d 206, 222 (D. Mass. 2022) (noise canceling headphones were effective accommodation for workplace distractions related to employee’s ADHD); Tadder v. Bd. of Regents of Univ. of Wisconsin Sys., 15 F. Supp. 3d 868, 888 (W.D. Wis. 2014) (flexible breaks and allowing employee to keep snacks at work were effective accommodations for employee’s Type II diabetes); Chisholm v. D.C., 666 F. Supp. 2d 96, 112 (D.D.C. 2009) (periodic rest breaks were effective accommodation for employee’s tendinitis); Hawkins v. Counseling Assocs., Inc., 504 F. Supp. 2d 419, 437 (E.D. Ark. 2007) (employer reasonably accommodated employee’s allergies by, among other things, instructing employees to refrain from using scented products, changing cleaning products used by custodial staff, allowing employee to relocate office, and allowing employee to bring in air purifier).

[38] E.E.O.C. v. Charter Commc’ns, LLC, 75 F.4th 729, 738 (7th Cir. 2023).

[39] Id. (quoting EEOC Informal Discussion Letter, ADA: Reasonable Accommodation (June 20, 2001), https://www.eeoc.gov/foia/eeoc-informal-discussion-letter-47).

[40] See, e.g., id. at 738–39 (reasonable accommodation could include flexible scheduling to allow vision impaired employee to limit night-driving); Colwell v. Rite Aid Corp., 602 F.3d 495, 505-506 (3d Cir. 2010) (reasonable accommodation could include allowing vision impaired employee to transfer to day-shift to avoid driving at night); Lyons v. Legal Aid Soc., 68 F.3d 1512, 1516-1517 (2d Cir. 1995) (reasonable accommodation could include providing mobility impaired employee with closer parking spot); but see Regan v. Faurecia Automotive Seating, Inc., 679 F.3d 475, 480 (6th Cir. 2012) (narcoleptic employee not entitled to flexible schedule after she moved 79 miles away from her job); and Unrein v. PHC-Fort Morgan, Inc., 993 F.3d 873, 878 (10th Cir. 2021) (flexible schedule to accommodate commute was not reasonable when employee’s essential job duties required a set and predictable schedule).

[41] Similarly, OPM has advised agencies that they can, and should, consider limited situational telework as a religious accommodation even when the employee could be accommodated with non-telework means. See OPM Memorandum Re: Reasonable Accommodation for Religious Purposes, Office of Personnel Management, p. 3 (July 16, 2025).

[42] This document addresses the rights and obligations of agencies and employees under the Rehabilitation Act. More information on the entitlement to leave usage is available through OPM. See OPM’s guidance on leave administration. (https://www.opm.gov/policy-data-oversight/pay-leave/leave-administration/)

[43] 42 U.S.C. § 12203(b).

[44] Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).

[45] See generally Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024).

 

 

 

 

 

 

 

 

 

 

 

 

The Society of Human Resources Management is not the only employer facing litigation for denying a service animal. On January 13, 2026, the Flaming Gorge Resort saw its motion to dismiss with respect to its denial of a service animal for an employee go down in flames (pun intended). The case is O’Connor v. Colett’s Mountain Resorts, Inc., here, decided by the United States District Court for Utah. As usual, the blog entry is divided into categories and they are: facts; O’Connor’s ADA failure to accommodate claim survives a motion to dismiss; O’Connor’s ADA wrongful termination claim on the basis of disability survives a motion to dismiss; O’Connor’s ADA retaliation claim for making a reasonable accommodation request survives the motion to dismiss; O’Connor’s Fair Housing Act (FHA’s) failure to provide a reasonable accommodation claim survives the motion to dismiss; O’Connor’s FHA’s discriminatory statement claim survives the motion to dismiss; O’Connor’s FHA’s denial of housing claim survives the motion to dismiss; O’Connor’s FHA’s retaliation claim survives the motion to dismiss; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the caregories. One thing new about this particular blog entry, is that I used Lexis AI Protégé to summarize the facts of the case. I have become increasingly frustrated with the facts section of my blog. I either have trouble condensing it or rephrasing it in a way that doesn’t bore the readers to tears or make the section too long (we are all very busy, and I have become increasingly concerned that readers may be engaging in unnecessary scrolling). Lexis AI Protégé really helped with that. The critical features about my blog are the way I attack how a court decides a case and my thoughts/takeaways. Therefore, there is no way I will be using AI for either of those purposes as both of those are unique to me and represent the value added of the blog.

 

I

Facts (I used Lexis AI Protégé to summarize the facts. I did not use Lexis AI Protégé for any other purpose when drafting this blog entry)

 

Jacob O’Connor has type 1 diabetes and owns a trained diabetic alert dog named Smokey. Smokey is trained to alert Mr. O’Connor or another human when his blood glucose levels drop or spike. In March 2024, Mr. O’Connor was hired as a front desk clerk by Collett’s Mountain Resorts and disclosed his Type I diabetes during the interview process.

 

Collett’s provided optional on-site employee housing at an affordable rate that significantly reduced commutes to the remote location. Rent was deducted directly from employee paychecks. Mr. O’Connor chose to move into the employer-provided housing and signed Housing Guidelines and Contract with provisions for pet fees, understanding that pets were allowed in employee housing and that guests could bring pets for additional fees.

 

 

Mr. O’Connor initially did not bring Smokey when moving in ‘to avoid unnecessary stress to the service animal while arranging the environment and gathering information about the living space, including the size of dog crate which would be able to fit into the area.’ During this time, ‘Mr. O’Connor risked unnoticed nocturnal blood sugar drops.’ He requested to move from the smallest to largest bedroom to accommodate a mini refrigerator for insulin and kennel for his service animal, which management granted.

 

A few days after moving in, Mr. O’Connor called to inform management he was returning with his service dog but was told pets were not allowed in employee housing. He explained Smokey was a service animal necessary for his diabetes, obtained roommate consent, and secured a doctor’s note verifying his need. Management, including owner Maretta Bair, maintained the denial, stating he should have disclosed the service dog when hired and that animals cannot be in shared employee housing. After Mr. O’Connor protested the denial and mentioned seeking legal advice, Ms. Bair terminated his employment, citing dishonesty about the service animal, arguing about the denial, and threatening legal action. O’Connor then filed suit alleging violations of the ADA, FHA, and Utah’s equivalent to the FHA. The defendant then filed a motion to dismiss.

 

II

O’Connor’s Failure To Accommodate Claim Survives A Motion To Dismiss

 

  1. The 10th Circuit utilizes the direct or indirect evidence test for figuring out whether a claim can proceed.
  2. At the motion to dismiss stage, a plaintiff only needs to state a plausible claim.
  3. Establishing a prima facie case for failure to accommodate, means a plaintiff has to show: 1) plaintiff was disabled; 2) plaintiff was otherwise qualified; 3) plaintiff requested a plausible reasonable accommodation; and 4) defendants refused to accommodate his disability. It is not a high standard to meet.
  4. Defendants argument that the ADA only protects reasonable accommodations that enable an employee to perform the essential functions of their job does not fly because the ADA also prohibits discrimination in regards to privileges of employment.
  5. “Privilege,” means a peculiar right, advantage, exemption, power, franchise, or immunity held by a person or class, not generally possessed by others.
  6. The 10th Circuit has held that the ADA’s discrimination prohibition is interpreted broadly so that it reaches the entire spectrum of employment-based disability discrimination. The 10th Circuit requires only that the discrimination relates to some aspect of employment.
  7. Employer-provided housing is a privilege of employment because the housing is a particular benefit provided by the employer specifically to employees and not to the general public. While the employees were not required to stay in the housing and still pay rent, housing was only available to employees and it had unique benefits for those employees-namely, an affordable rate and a short commute. So, any discrimination in the housing is related to some aspect of employment as the employer-provided and managed the benefit.
  8. While EEOC regulations interpreting the ADA are only persuasive, it is clear that housing would be covered under this employer’s ADA obligations. 29 C.F.R. §1630.2(o)(iii) and the EEOC’s comments regarding same, respectively state that reasonable accommodation includes: 1) modifications or adjustments enabling a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities; and 2) the obligation to make reasonable accommodation apply to all services and programs provided in connection with employment, and to all nonwork facilities provided or maintained by an employer for use by its employees (emphasis in opinion), including employer-provided cafeterias, lounges, gymnasiums, auditorium, transportation, and the like.
  9. Accordingly, plaintiff plausibly pled a failure to accommodate claim under the ADA.

 

III

O’Connor’s Wrongful Termination Claim On The Basis Of Disability Survives A Motion To Dismiss

 

  1. For a plaintiff to present a claim of wrongful termination, a plaintiff has to show: 1) plaintiff is disabled within the meaning of the ADA; 2) plaintiff can perform, either with or without reasonable accommodation, the essential functions of the desired job (otherwise qualified); and 3) the defendant terminated plaintiff because of plaintiff’s disability.
  2. Termination is “because of disability,” if it stems from the disability itself or from the employee’s need for reasonable accommodation.
  3. A close timing of plaintiff’s accommodation request and plaintiff’s firing, along with the explanations made by an employee of the defendants, support a plausible inference of disability-based termination.
  4. Plaintiff never conceded that defendants explanations were the real reason for his termination. In any event, plaintiff need not rebut defendants claimed reasons for the termination at the motion to dismiss stage. Instead, plaintiff only needs to state a plausible claim that plaintiff was terminated because of plaintiff’s disability or because of plaintiff’s need for a reasonable accommodation.
  5. Plaintiff did allege that defendants terminated him shortly after telling the defendants that he needed the service dog for his disability, which is an allegation that supports an inference that the accommodation request itself may have triggered the firing. So, it is plausible that defendants terminated the plaintiff because of plaintiff’s disability or because of the need to make reasonable accommodation for his disability. Therefore, plaintiff’s ADA wrongful termination claim survives.

 

IV

O’Connor’s Retaliation Claim For Making A Reasonable Accommodation Request Survives The Motion To Dismiss

 

  1. Proving up a prima facie case for retaliation under the ADA requires: 1) an employee engaged in protected opposition to discrimination; 2) a reasonable employee would have found the challenge action materially adverse; and 3) a causal connection existed between the protected activity and the materially adverse action.
  2. While plaintiff demanded a housing accommodation and not a workplace accommodation, the ADA protects against discrimination in regards to privileges of employment.
  3. A request for accommodation can constitute protected activity supporting a retaliation claim if it is sufficiently direct and specific so as to give notice that an employee needs a reasonable accommodation.
  4. Plaintiff informed multiple managers of his need for a service dog and made clear that it was an accommodation for his disability. He even asserted that he believed denying the accommodation was illegal. All of those requests put the defendants on notice that the employee needed an accommodation. Therefore, plaintiff plausibly engaged in protected opposition to discrimination by requesting a reasonable accommodation to access a privilege of employment, in this case employer-provided housing.
  5. Plaintiff presented direct factual allegations that defendants terminated him because he engaged in protected activity. Plaintiff’s alleged that he was told that he was fired because he had argued about the denial of the service animal, and said that he wanted to seek legal advice from an attorney regarding the denial of that service animal. So, plaintiff’s request for an accommodation was protected activity, and terminating him for disputing its denial provided direct evidence linking the adverse action to the protected activity. Hence, the ADA retaliation claim survives.

 

V

O’Connor’s FHA’s Failure To Provide A Reasonable Accommodation Claim Survives The Motion To Dismiss

 

  1. In the 10th Circuit, a failure to accommodate claim under the FHA involves showing that a requested accommodation was reasonable and necessary to afford a resident with a disability equal opportunity to use and enjoy a dwelling.
  2. In the 10th Circuit, an FHA failure to accommodate claim involves a plaintiff showing: 1) plaintiff is a person with a disability; 2) defendant knew or reasonably should have known of the plaintiff’s disability; 3) the plaintiff needs an accommodation to have an equal opportunity to use and enjoy his dwelling; 4) the accommodation is reasonable; and 5) defendant refused to make the accommodation.
  3. An employee need not use magic words to request an accommodation. In this case, plaintiff made clear to the defendants of his need for reasonable housing accommodation multiple times.
  4. Whether the dog was necessary at the motion to dismiss stage involves taking the plaintiff’s allegations as true and making all inferences in his favor. Plaintiff alleged that the dog was a trained diabetic alert dog. While the dog was maybe not certified, defendants do not cite any legal requirement that the dog be certified. Instead, the only legal requirement is that the dog was necessary. Plaintiff alleged that without his trained diabetic alert dog, he risked unnoticed blood sugar drops that could result in coma or death. So, a trained diabetic alert dog that helps a plaintiff avoid coma or death is plausibly a necessary accommodation.
  5. It is also plausible that the service dog may still be necessary for long-term housing even if plaintiff spent a couple of nights without the dog. An example is if someone in a wheelchair moves into housing where there is a single step, the person in the wheelchair may be capable of moving into the housing before the ramp is installed. For a little bit and under great discomfort, the person in a wheelchair may get by. Under no circumstances, could a landlord later claim that installing a ramp to go up that one step is not a necessary accommodation. The same goes for the plaintiff in this case. Plaintiff enduring a couple of days without his service dog does not prove the service dog is unnecessary for equal access and enjoyment of long-term housing.
  6. An accommodation is reasonable under the FHA when it imposes no fundamental alteration in the nature of the program or undue financial or administrative burdens. Plaintiff alleged that guests and some other employees were allowed to bring pets on the premises. Accordingly, plaintiff’s request to bring a trained service dog onto the premises would be a reasonable accommodation unlikely to cause any fundamental alteration or undue burden. So, the FHA reasonable accommodation claim survives.

 

VI

O’Connor’s FHA’s Discriminatory Statement Claim Survives The Motion To Dismiss

 

  1. Since the elements of a discriminatory statement claim and a reasonable accommodation claim under the FHA are the same, defendants arguments that the discriminatory statement claim should be dismissed fails for the same reasons as why their reasonable accommodation dismissal claims fail.

 

VII

O’Connor’s FHA’s Denial Of Housing Claim Survives The Motion To Dismiss

 

  1. Since defendants argue that plaintiff’s claim for denial of housing get dismissed for the same reasons as for the reasonable accommodation claims getting dismissed, and the court has already denied dismissal of those claims, the denial of housing claim dismissal arguments also fail.

 

VIII

O’Connor’s FHA’s Retaliation Claim Survives The Motion To Dismiss;

 

  1. 42 U.S.C. §3617 of the FHA, here, makes it unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed any right granted or protected by the FHA.
  2. The 10th Circuit has adopted either of two approaches when it comes to FHA retaliation claims. The first approach involves a plaintiff showing: 1) plaintiff was engaged in protected activity; 2) plaintiff suffered an adverse action in the form of coercion, intimidation, threats, or interference; and 3) there was a causal link between the two.
  3. The second approach to proving up retaliation under the FHA involves a plaintiff showing: 1) plaintiff is a protected individual under the FHA; 2) plaintiff was engaged in the exercise or enjoyment of fair housing rights; 3) defendant coerced, threatened, intimidated, or interfered with the plaintiff on account of plaintiff’s protected activity under the FHA; and 4) the defendant was motivated by an intent to discriminate.
  4. Defendants only provided arguments under VIII(2) of this blog entry, so the court addressed just those arguments. The 10th Circuit has not decided which formulation is the correct formulation and it isn’t necessary for this court to do so since the defendants opted for the formulation in VIII(2) of this blog entry.
  5. Magic words are not necessary to request an accommodation and plaintiff made his need clear for the service dog in any event.
  6. Defendants denial of the service dog accommodation, insisting that plaintiff either move out or find a new home for his service dog, and eventually terminating his employment and denying plaintiff housing altogether, plausibly states an adverse action interfering with plaintiff’s rights to receive an accommodation and to protest the denial of that accommodation.
  7. Defendants argument that there was no causal link between the protected activity and the adverse action doesn’t fly because an employee of the defendants allegedly told the plaintiff that protesting the denial of the accommodation was one of the reason for the termination and denial of housing.

 

IX

Thoughts/Takeaways

 

  1. We have been discussing in this blog quite a bit of late about whether it is the essential functions of the job that needs accommodating or whether it is the disability that needs accommodating. This case come down on the side of the disability needing accommodating. Also, it sets up a workaround for attorneys in courts insisting that it is the essential functions of the job that needs accommodating. That is, an employer has the obligation to reasonably accommodate a person in order for that individual to access the privileges and benefits of their employment.
  2. The ADA reaches the entire spectrum of employment-based disability discrimination.
  3. The employer likely would have lost their motion to dismiss anyway, but it certainly didn’t help that they allowed pets in employee housing.
  4. I didn’t particularly care for the first element of a prima facie case for an FHA failure to accommodate claim being a person “suffers from a disability.” A disability is and certainly it can be quite burdensome even full of suffering, but that is not at all the same as saying a person “suffers from a disability.” The distinction is important.
  5. In a footnote, the court noted that identical fair housing state law claims were also brought by the plaintiff and that those survived for the same reasons at the federal claims do.
  6. For the plaintiff suing the Society of Human Resource Management, which we discussed here, the lawyers representing that plaintiff will certainly want to look at this case.
  7. The court gives a nod to Loper Bright when it says that the EEOC regulations interpreting the ADA are only persuasive. Even so, the court elects to cite to those regulations and guidances favorably.
  8. The plaintiff actually sued two individuals (the resort and the owner and manager of the resort).
  9. While at the motion to dismiss stage only a plausible claim needs to be stated, plaintiff attorneys still need to be aware of Iqbal/Twombly. That is, facts still need to be stated in a complaint and not just conclusions.
  10. A reasonable accommodation having to be “plausible,” or “necessary,” means that a court may decide as a matter of law that the particular requested reasonable accommodation was not plausible or necessary, which is potentially another hurdle for an ADA plaintiff to get over.
  11. At the motion to dismiss stage, plaintiff’s allegations are taken as true. The courts are pretty good about that. On summary judgment, it’s much more complicated as to how much the courts necessarily value the allegations and/or facts put forward by the nonmoving party.
  12. The fundamental alteration argument had absolutely no chance of succeeding in this case because the employer allowed pets in employee housing, and it probably would not have succeeded in any event even in the absence of a pet policy, as the animal involved was clearly a service animal.
  13. Magic words are not required to request an accommodation, though it certainly helps.
  14. Anyone can train their dog to be a service dog. The key is whether they have been trained to engage in recognition and response.
  15. Exhaustion of remedies isn’t required under the FHA, but it is required under Title I of the ADA. The court doesn’t mention the plaintiff filing with the EEOC or a state equivalent agency with respect to the Title I claim. Even so, one has to assume that the plaintiff did so or the defendant would have to had raise the issue.
  16. The 10th Circuit uses McDonnell Douglas at both the motion to dismiss and summary judgment stages. This case is one of the few where a court says direct evidence exists.
  17. “Certification,” for a service animal is not a thing in the United States.

This week’s blog entry deals with what is a program under Title II of the ADA, and it also discusses the distinction in causation between the ADA and §504 of the Rehabilitation Act. The case of the day is Decker v. Commonwealth of Pennsylvania Department of Corrections, here, a non-precedential decision decided by the Third Circuit on January 15, 2026. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that the equal protection claim does not survive; court’s reasoning that the ADA claim does survive but the Rehabilitation Act claim does not; and thought/takeaways. Of course, the reader is free to focus on any or all of the categories. However, this blog is pretty short, the reader will probably wind up reading the whole thing anyway.

 

I

Facts

 

It is a really straightforward set of facts. A blind man’s delay in parole placement was the result of his disability as well as his classification as a sex offender. He brought suit alleging violations of the Equal Protection Clause of the 14th Amendment, ADA, and §504 of the Rehabilitation Act. The District Court dismissed all the claims and Decker appealed.

 

II

Court’s Reasoning That The Equal Protection Claim Does Not Survive

 

  1. Decker brought a “class of one,” claim under the Equal Protection Clause, alleging that he was intentionally treated differently from others similarly situated and there was no rational basis for the difference in treatment.
  2. When identifying those “similarly situated,” at the pleading stage, a plaintiff must adequately allege that they are alike in all relevant respects to the comparators by offering more than conclusory assertions.
  3. Decker fails on the comparator part because Pennsylvania law imposes unique collateral consequences on sex offenders, including consequences making it more difficult to qualify for housing. As a result, Decker is not similarly situated as to his placement in halfway houses even aside from other considerations.

 

 

 

 

III

Court’s Reasoning That the ADA Claim Does Survive but the Rehabilitation Act Claim Does Not

 

  1. The substantive standard for determining liability under §504 and Title II of the ADA are identical, except for causation.
  2. Stating a claim under the ADA or §504 means a plaintiff has to allege: 1) he is a qualified individual; 2) with a disability; 3) who was excluded from participation in or denied the benefits of the services, programs, or other activities for which a public entity is responsible, or was otherwise subjected to discrimination by a public entity; and 4) by reason of his disability. Only the third and fourth requirements are even debated in this case.
  3. Both the ADA and the Rehabilitation Act provide all-encompassing protection by defining the phrases “service, program, or activity,” under Title II and “program or activity,” under §504 to include all of the operations of a state instrumentality or anything a public entity does.
  4. Since the scope of the protection is extremely broad, plaintiff can define the specific programs or services at issue narrowly. So, the District Court defining the program broadly as any parole placement by the Department of Corrections was in error.
  5. Decker specifically sought placement in the Department of Correction’s halfway house program because halfway houses provide services that are often vital to a paroled inmate’s ability to reintegrate. For that reason, Decker rejected an offer from the Department of Corrections for placement in a personal care home reasoning that the personal care home was not a Department of Corrections owned or operated halfway house and did not offer equivalent services and benefits as provided in the halfway house program.
  6. In a footnote, the court noted that neither party disputed that Decker was a qualified individual with a disability or that he was denied participation in a Department of Corrections program. The parties also appeared to agree that the program at issue was the halfway house program. Finally, Decker did not challenge the district court’s dismissal of his ADA and Rehabilitation Act claims against individual defendants, as individual cannot be personally liable under those statutes.
  7. The District Court’s defining the program broadly so as to foreclose relief was a flawed analysis because Decker permissibly defined the relevant program with specificity. Since the program at issue as pleaded in Decker’s amended complaint, was the placement in a Department of Corrections owned or operated halfway house, Decker’s decision to refuse an offer for placement in a personal care home did not preclude his claim for denial of participation in that specific program.
  8. With respect to ADA causation, Decker’s claim survives because he has marshaled evidence showing that his disability was a reason that he was denied placement in the halfway house program since the ADA only requires but for causation.
  9. With respect to causation on the Rehabilitation Act, disability must be the sole cause of the discriminatory action. This is a standard that Decker cannot get past because of his sexual offender classification and the corresponding collateral consequences also contributing to the Department of Correction’s difficulty in placing him in a halfway house. Even the declaration that Decker obtained showing that disability was a reason for the delayed placement shows that his sexual offender classification was also a reason for the problems in placement.
  10. In a footnote, the court noted that Decker can pursue compensatory damages because he pleaded facts sufficient to show intentional discrimination under deliberate indifferent standard. Deliberate indifference means showing that the Department of Corrections: 1) had knowledge that a federally protected right is substantially likely to be violated; and 2) failed to act despite that knowledge. The relevant federally protected right is Decker’s right under the ADA to be free from disability discrimination. Decker also adequately pled that the Department of Corrections acted with deliberate indifference when despite it stating that Decker required minimal accommodations, it failed to place him in a halfway house due to the additional accommodations it maintained he needed. Further, in the same footnote, the court noted that Decker also pleaded defendant’s conduct caused him to lose his liberty as well at the benefits of the Department of Corrections’s halfway house program.
  11. Decker may pursue monetary damages to compensate for his loss of expectation interest and similar breach of contract claims flowing from that placement delay.

 

 

 

 

IV

Thoughts/Takeaways

 

  1. The equal protection claim failed because of the comparators not being equivalent. That said, equal protection claims for people with disabilities are a very tough sell to begin with as the equal protection classification that people with disabilities fall into depends upon the specific factual circumstances. With respect to accessing the courts, people with disabilities per Tennessee v. Lane, are at least in the intermediate scrutiny classification if not higher. With respect to employment, per Board of Trustees of the University of Alabama v. Garrett, people with disabilities are in the rational basis class. For everything else, people with disabilities can fall in any equal protection class depending on the facts and circumstances. It is extraordinarily difficult for a plaintiff to win an equal protection claim if they are placed in the rational basis class, which this court seemed to have been inclined to do if its reasoning is any indication. See also this blog entry.
  2. This is another case illustrating how causation under the ADA and causation under the Rehabilitation Act are very different from each other. That is, “by reason of,” and “solely by reason of,” mean very different things. Not that readers of this blog entry are surprised by any of this because we noted that probability in this particular blog entry.
  3. Courts overwhelmingly hold, as did this court, that a program of a public entity is anything a public entity does. So, that gives a plaintiff wide latitude to define a program in the way most helpful to the plaintiff.
  4. For how how to go about proving deliberate indifference, the landmark case in that area is the one that we discussed in this blog entry.
  5. We do know from this blog entry that emotional distress damages are not available under §504 of the Rehabilitation Act. We also know that the jury so to speak is out with respect to whether that same principle applies to Title II of the ADA. There are courts holding that the same principle does apply to Title II cases. Plaintiff’s lawyers are trying workarounds to that. One of the workarounds is expectation interest damages. This court specifically notes that loss of expectation interest is something that Decker can pursue. Breach of contract being another cause of action available to him as well.
  6. The decision is not precedential.
  7. Unreasonable delay can be a viable cause of action as we discussed here.
  8. With the exception of a case from the 11th Circuit when it comes to retaliation by an employee of a nonfederal governmental entity, here, the courts are unanimous in holding that none of the titles of the ADA impose personal liability.

This week’s blog entry considers the Society for Human Resource Management answer to the complaint of Fiona Torres in her case saying SHRM violated the ADA by not allowing her to have her service dog when it rescinded a conditional job offer. In the interest of full disclosure, many years ago I did speak to a SHRM conference in Rochester, Minnesota. I am also a member of SHRM as I like to keep up with what they say with respect to the ADA, though I am not active. I also do not have any SHRM certifications, though as readers know I have been in the labor and employment arena for decades (for example, 40% of my blog entries concern employment issues). Finally, I am not involved in this case. As usual, the blog entry is divided into categories and they are: the answer in Torres; and exploring SHRM’s  possible defenses in light of the answer.

 

I

Answer in Torres

 

  1. SHRM admits the case involves a Title I claim .
  2. SHRM admits that Torres represented she has Type I diabetes.
  3. Admits that a conditional job offer was made and that it was rescinded.
  4. Admits that Torres requested an accommodation upon accepting the conditional job offer to bring her service dog, which alerts her for diabetes, to work.
  5. Admits that Torres sent information on her service dog and a note from a healthcare provider to SHRM.
  6. SHRM advised Torres that the information she submitted did not appear to support that she required a service dog to perform the essential duties of the position and invited her to provide additional information, which she did do.
  7. SHRM admits that Torres told it that glucose monitors generally, and her glucose monitor specifically, were unable to accurately capture fast-moving trends leading to hypoglycemic episodes, and that she had not had a hypoglycemic episode necessitating medical assistance from paramedics since obtaining her service dog other than on one occasion.
  8. Admits that Torres sent SHRM email stating she relied on her service dog but that he was not always with her, such as when he was being groomed and when she believed the environment she was entering was unsafe for her service dog. Torres also stated in that email that when she was away from her service dog, there was a greater risk of a hypoglycemic episode.
  9. SHRM admits that Torres sent numerous notes from her health care provider regarding her service dog.
  10. SHRM admits that it did not communicate to Torres its concerns about her ability to control her service dog.
  11. SHRM admits that it did not communicate to Torres its concerns about the service dog being in the office for their service dog’s effect on other workers.
  12. SHRM offered multiple accommodations, including but not limited to: 1) use of her continuous glucose monitoring system at work; 2) breaks as needed to check her blood sugar levels; and 3) the ability to use her insulin pump and consume food or drink as needed at or near her workstation.
  13. SHRM admits that it was told by Torres that the glucose monitor she wore was insufficient and explained the reasons why it was insufficient by itself.
  14. SHRM admits that Torres told them that she may not have a glucose monitor for an unspecified number of days if her pharmacy had a delay in shipment or her insurance led to a delay in filing the prescription refills for the monitor.
  15. SHRM admits that Torres told them that if the monitor falls off, she needs to change it in order to avoid a two hour delay in reading. Also, if she does not keep a backup at work, she has to drive to the pharmacy, which she stated was incredibly dangerous.
  16. SHRM admits that Torres told them that approximately twice per year the monitor malfunctions or produces an error so that the glucose reading access goes down for two or more hours.
  17. While SHRM admits that it was told by Torres that she had type I diabetes, it doesn’t admit that she actually has it.
  18. SHRM admits that she was qualified for the position for which she applied and that a conditional job offer was extended and later rescinded.
  19. SHRM alleges several defenses, including undue hardship.

 

II

Exploring SHRM Possible Defenses In Light of the Answer

 

  1. While SHRM does not in fact acknowledge that Torres actually has Type I diabetes, it’s really hard to believe that whether Torres has this disability will be seriously contested.
  2. A person rejecting a reasonable accommodation is no longer qualified under the ADA. The question will be whether the accommodations offered by the SHRM were in fact reasonable. Just because accommodations are offered does not make them reasonable per se. A reasonable accommodation must be an effective accommodation, i.e gets a person with a disability to the same starting line as a person without a disability.
  3. Judging from the answer, SHRM may very well argue that it is the essential functions of the job being accommodated and not the disability. We have discussed that issue before, such as here.
  4. SHRM claims undue hardship on its operations. That may be a tough sell for a couple of reasons. It also opens up other problems. First, can a service animal really create an undue hardship, which is a very high standard, on the operations of a business? Second, undue hardship on its operations is just one of many factors to consider in 28 C.F.R. §1630.2(p). As a result, it opens up the SHRM to discovery as to its financial resources, which is another one of the factors to consider when assessing undue hardship.
  5. When a conditional job offer is rescinded, an employer has to show per 28 C.F.R. §1630.14(b)(3) that it was job related, consistent with business necessity, and no reasonable accommodations were possible in order to enable the person to perform the essential functions of their job. Whether something is job-related and consistent with business necessity is something that we have discussed many times before, such as here by way of example.
  6. SHRM could possibly argue that the dog was not a service dog because it wasn’t always under the control of the handler. The problem with this argument is that the EEOC has absolutely no regulations concerning animals in the workplace. Another problem is even if the DOJ regulation on animals but somehow persuasive authority in the employment context, Loper Bright will allow a court to use common sense with respect to the control piece (for example it is perfectly okay to still have a service animal if the animal is not with a person while it is being groomed for a person is going into a dangerous area pretty animal).
  7. SHRM may also argue that Torres and not SHRM blew up the interactive process (but see the discussion that an accommodation must be effective to be reasonable).
  8. Unclear what the likelihood of this case settling is.
  9. One wonders if Torres won’t argue that SHRM requested excessive documentation, which we discussed here.

Congratulations to the Indiana Hoosiers on an undefeated season culminating in the national championship. Also, congratulations to the remaining teams in the NFL playoffs. My Bears lost, but that play to send the game to overtime was incredible.

 

This week’s blog entry is a non-precedential decision from the Third Circuit decided on October 8 of 2025, which was on my birthday. Before getting to that, a brief update on Nawara v. County of Cook, which we discussed here. The update is that the Supreme Court refused to hear the case, so the case went back down to the trial court to determine damages where: 1) The trial court wound up determining that the plaintiff should get a backpay award of $30,773.93 minus the amount of his income during a temporary work as a security guard with UPS and Amazon, which was $4,715.57; 2) the court also reduced the award by the health insurance premium paid by Cook County while the plaintiff was on leave, an amount of $624.06; 3) the court also granted prejudgment interest based upon the average prime rate over the time period of the litigation, which came to $16,101.56; 4) the court required Cook County to make the plaintiff whole by calculating the value of the life pension contributions using reasonable actuarial assumptions in order to pay the plaintiff directly the full monetary equivalent of those contributions; 5) the court granted restoration of 88 days of vacation, holiday, comp time, and sick days without the award of any additional monetary relief: 6) the court stood by its order granting restoration of plaintiff’s seniority, which was 153 days; and 7) the court ordered that new petitions for prevailing party fees and costs be submitted.

 

Turning to the case of the week, Murphy v. State of Delaware, here, the blog entry is divided into categories and they are: facts; court’s reasoning allowing the Title II and §504 claims to survive a motion to dismiss; court’s reasoning allowing the §1983 claim against the constables carrying out the eviction order to survive a motion to dismiss; a brief note on Judge Matey’s concurring and dissenting opinion; and thoughts/takeaways

 

I

Facts

 

Kenneth Stamford owned an apartment and previously leased it to Viola Wilson. After Wilson vacated the apartment, he leased it to Murphy. Even though he knew that Wilson had vacated the apartment and that the Murphys occupied the apartment under a valid lease, he filed an eviction notice against Wilson as if she still occupied the apartment. He did that without providing notice to the Murphys (the actual tenants), as required by Delaware law. He obtained a final judgment against Wilson in February 2021. He then had the JP court to issue a writ of possession to remove all persons from the property. A notice to Wilson was posted on the apartment door on February 5. However, Murphy was blind and could not read the notice. The constables executing the writ of possession observed that Murphy was blind and also that he was not obviously Viola Wilson, the person named in the eviction order. When Murphy provided the lease to the constables, one of them accused him of making it up. The constables called their supervisor for guidance who told them to remove all persons from the apartment and they could later challenge the eviction order in court. Murphy and his family was given 30 minutes to vacate the apartment and left on the street during a snowstorm. They were also forced to leave behind most of their possessions, including an urn containing the ashes of Murphy’s late wife and the laptop computers of his minor daughters that were being used for schooling as they were remote during the Covid-19 pandemic. The constables informed Murphy that his recourse was filing a complaint for wrongful eviction in the JP court, which he did. The JP court held an emergency hearing ruling in Murphy’s favor. The court was so appalled that it referred the matter for a criminal investigation. It also gave them the option of moving back into the apartment or terminating the lease. Due to Murphy’s deep distrust of Stanford, Murphy chose the latter option and subsequently filed lawsuits against Stanford (which settled), the JP court, and the constables executing the eviction claiming violations of title II, §504, and §1983.

 

 

 

II

Court’s Reasoning Allowing the Title II And §504 Claims To Survive A Motion To Dismiss

 

  1. Title II of the ADA prohibits discrimination based on disability.
  2. Title II’s final implementing regulation, 28 C.F.R. §35.130(b)(7), requires a public entity to make reasonable modifications to its policies, practices, or procedures when necessary to avoid such discrimination. The same prohibition per §504, applies to any federally funded program or activity
  3. To state a claim under either Title II or §504 a plaintiff has to show: 1) he is a qualified individual; 2) with a disability; 3) who was excluded from participation in or denied the benefits of the services, program, or activities of a public entity, or was subjected to discrimination by any such entity; and 4) by reason of his disability.
  4. Title II requires but for causation, while §504 requires that a plaintiff’s disability be the sole cause of the discrimination.
  5. Plaintiff plausibly pleaded that his blindness led the defendant to evict him without notice readable by a blind person.
  6. The constables gave him written notice of the eviction that he could not read because of his blindness. Nevertheless, they evicted him and his family anyway. Therefore, they denied the Murphys the benefit of a service, program, or activity that the constables provide 24 hours notice before an eviction.
  7. Since Murphy’s disability was plausibly the only reason for being deprived of his notice, the causation standards under Title II as well as §504 were both satisfied.
  8. Federal law requires the constables to make reasonable modifications to policies, practices, or procedures when necessary to avoid discrimination based on disability unless they can demonstrate making the modification fundamentally alters the nature of the service, program or activity. At the pleading stage, the constables have not carried that burden.
  9. Since the constables refused Murphy’s request to stop the eviction when he had not been given notice in a form understandable to a person with blindness, sufficient facts were alleged showing causation under both Title II and §504.
  10. The constables are not entitled to an inference that someone read the complaint notice to Murphy, or that the person did so in a manner as effective as a notice provided in a format understandable to a person with blindness.
  11. 28 C.F.R. §35.160(c)(2) states that a public entity cannot rely on an adult accompanying an individual with a disability to interpret or facilitate communication.
  12. The constables are not entitled to an inference that Murphy would have not taken any action to avoid the eviction if he had been given notice in a form understandable to a person with blindness.

 

 

III

Court’s Reasoning Allowing The §1983 Claim Against the Constables Carrying The Eviction Order To Survive A Motion To Dismiss

 

  1. The official capacity claims are dismissed because Murphy did not plausibly allege an ongoing violation of federal law supporting the request for a prospective relief.
  2. The §1983 claims against the constables can move forward because the quasi-judicial immunity does not extend to the manner in which the court order was executed, though it does extend to the court order itself.
  3. At this stage of the litigation, the court is unable to conclude that the constables lacked the discretion to postpone evicting Murphy and his family under the circumstances alleged prior to any discovery having taken place.

 

 

IV

A Brief Note on Judge Matey’s Concurring And Dissenting Opinion

 

  1. Judge Matey agreed with the court dismissing the official capacity claims. However, he believed the responsibility lies with the landlord and the claims against everyone else should be dismissed as a result of quasi-judicial immunity concerns.

 

 

 

V

Thoughts/Takeaways

 

  1. I get calls at least once a month, and it is not unusual for me to get them twice a month from around the country, where a person with a disability informs me that a court is denying them access to the court proceedings because of their disability. I would say 90% of the time it is family courts that are the problem but not always.
  2. Title II and §504 apply to everything that a public entity does.
  3. Causation is different under §504 (sole cause), v. Title II of the ADA (by reason of, i.e. but for). The difference between the two is significant, though it wasn’t an issue in this case.
  4. In a footnote, the court mentions that the Third Circuit has not squarely addressed the question of whether claims may be brought against government officers in their individual capacities under Title II. I can say that with the exception of the 11th Circuit when it comes to retaliation by an employee of a public entity, the courts are uniformly rejecting individual liability under Title II of the ADA.
  5. In that same footnote, the court says that a public entity may be vicariously liable for its employees conduct under Title II of the ADA and that the defendant did not dispute that. As we have discussed previously, such as here, it is not a slam dunk that a public entity is automatically vicariously liable for its employees conduct under Title II of the ADA. So, be sure to check your jurisdiction when faced with this question.
  6. Title II of the ADA and §504 require pro-active measures to avoid discrimination, which includes making reasonable modifications to policy, practices, or procedures absent a fundamental alteration to the service, program, or activity.
  7. Remember the do’s and don’ts of the interactive process, which can be found here.
  8. The ADA is a nondelegable duty and a public entity does not get the ability to rely on someone else doing their obligations for them, i.e. having someone else read and inaccessible eviction notice to a person with a disability.
  9. While the judge issuing the court order gets immunity, that doesn’t extend necessarily to individuals carrying out that order.
  10. The §1983 piece of this case is interesting because I have seen cases saying that §1983 is not possible when in reality you are looking at a violation of Title II of the ADA. So, be sure to check your jurisdiction when that situation comes up.
  11. Training, training, training by individuals knowledgeable in the ADA is so important. Such training would have likely prevented this scenario.

It’s time to get back to the grind after the holiday season. I hope everyone had a great holiday season.

 

Today’s blog entry deals with the implications of what happens when a reasonable accommodation request of a plaintiff is facially unreasonable. What does that mean for a plaintiff’s reasonable accommodation claim? What might that mean for a plaintiff’s claim that the employer failed to engage in the interactive process?

 

The case of the day is Bowles v. SSRG II, LLC, dba Chicken Salad Chick, a published decision decided by the Sixth Circuit on December 17, 2025, here. As usual, the blog is divided into categories and they are: facts; court’s reasons for granting summary judgment on the failure to accommodate claim; court’s reasons for granting summary judgment on the failure to engage in the interactive process claim; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts (taken directly from the opinion, though the order these paragraphs appear are not the same)

 

Tawna Bowles applied for a cashier/service-team member position at the Chicken Salad Chick location in Crestview Hills, Kentucky. Bowles suffers from arthritis in her knees. During her interview, she disclosed that she had difficulty standing for a long period of time and thus would require an unspecified amount of rest while working. That disclosure did not derail Bowles’s candidacy—Chicken Salad Chick told Bowles she was hired before the interview concluded. And soon thereafter, the company sent her various onboarding documentation to complete for an expected start date of Monday, January 2, 2023. Bowles submitted her onboarding materials a few days before her start date. In those papers, Bowles indicated that she needed to be able to “sit down when needed” or “sit and work.”

 

The cashier/service role has many aspects. To start, as the name implies, cashier/serviceteam members are expected to operate a point-of-sales system for taking customer orders, both dine-in and carry-out. But those team members are also responsible for stocking the restaurant’s drink station as well as the refrigeration unit, which houses premade cartons of chicken salad. The position also must expedite food orders, which includes taking food from the prep window adjacent to the kitchen as well as preparing beverages and then delivering those items to customers, whether at checkout or at their table. And to maintain the guest area, cashier/serviceteam members are expected to clean tables, vacuum, take out trash, and maintain the cleanliness of the customer bathrooms. Given the nature of the restaurant, all Chicken Salad Chick team members are understood to operate in a “fast-paced environment” where effective multitasking and “well-paced mobility” for the “duration of the workday” are required skills.

 

When Bowles arrived for work, she was told by management that she could not start due to a “paperwork issue.” The issue concerned her accommodation request. The morning of her ostensible first day, her request had triggered a message to Mary Lou Atkins, Chicken Salad Chick’s Vice President of Human Resources. Atkins, in turn, had notified the manager overseeing the Crestview Hills restaurant that Bowles could not begin until her request was resolved. Atkins called Bowles to request medical documentation of her condition. Bowles later obtained a note from her doctor, which asked that Bowles be “supplied a chair for standing limitations due to knee arthritis.” Eventually, the note made its way to Atkins. Atkins, however, asked for more specifics, namely, how long Bowles could stand and how often she would need to sit, and for how long. Bowles called Atkins in early February, at which point Bowles sought an accommodation where she “could . . . stand for ten minutes at a time and then would need to sit for five minutes . . . .” Atkins informed Bowles that Chicken Salad Chick could not accommodate her specific request and likewise did not have a position for which she could continually sit.

 

Plaintiff sued and defendant moved for summary judgment.

 

 

II

Court’s Reasons For Granting Summary Judgment On The Failure To Accommodate Claim

 

  1. In the Sixth Circuit, a burden shifting framework is used to measure whether the plaintiff has put forward a legally sufficient claim of being denied an accommodation.
  2. Plaintiff’s initial burden is to show that her proposed accommodation is objectively reasonable.
  3. If the threshold criteria is met, the burden of production shifts to the defendant to show that plaintiff’s proposed accommodation would specifically cause an undue hardship.
  4. Once the company puts forward its arguments for an undue hardship, plaintiff has the burden of coming forward with evidence to rebut the employer’s evidence.
  5. The ultimate burden is on the plaintiff to persuade that the plaintiff has been the victim of illegal discrimination.
  6. Plaintiff cannot satisfy her initial burden of showing that her propose accommodation is objectively reasonable. The employer’s words, policies, and practices are overwhelming and undisputed that an accommodation of being able to sit for five minutes for every 10 minutes of standing is not reasonable for the cashier/service role at issue.
  7. Granting the accommodation would necessarily change the nature of the position altogether. For example, for 1/3 of her shift, plaintiff’s job would be isolated to manning the cash register, regardless of whether there was a customer waiting at the register. During that time, she would also be unable to tackle numerous duties, from greeting a customer at the door, to rushing in order out to a hungry patron, to cleaning up the spill at the drink station, etc., any of which could occur at a moment notice considering the job’s setting.
  8. Allowing the accommodation would fundamentally alter the position by turning the position into a master of the cash register for significant parts of the shift. As such, the accommodation request is facially unreasonable.
  9. Allowing the accommodation would also affect defendant’s broader workforce, as other team members would have to pick up the slack for the plaintiff being tied to the cash register.
  10. The title of the position is irrelevant, rather the focus is on the fundamental job duties of the employment position.
  11. The nature of the accommodation plaintiff requested is so nebulous so as to amount to no accommodation request at all.

III

Court’s Reasons For Granting Summary Judgment On The Failure To Engage In The Interactive Process Claim

 

  1. A failure to engage in the interactive process is only an independent violation of the ADA if the plaintiff establishes a prima facie showing that she proposed a reasonable accommodation.
  2. A viable interactive process claim presupposes the existence of a reasonable accommodation.
  3. Since plaintiff presented a facially unreasonable request to the defendant, the interactive process claim fails.

 

 

IV

Thoughts/Takeaways

 

  1. I am now seeing cases where the court is assessing whether the proposed accommodation request is facially reasonable in the first place. The conclusion a particular court reaches very much depends upon the particular judge, the particular facts, etc. For example, I recently saw a case, here, involving the Chicago Transit Authority where the District Judge there said that a request for light duty was presumptively a reasonable accommodation request considering the CTA’s practices and policies even if the plaintiff did not have specific evidence at the moment that a light duty transfer was possible. On the other hand, you have a case like this particular blog entry.
  2. Be prepared in light of the way the case law is beginning to trend, for a judge to first assess whether there is a facially reasonable accommodation request in the first place.
  3. The essential functions of the job are what matters and not the title of the position
  4. This case should make clear that a plaintiff when dealing with reasonable accommodation requests should have as their first step, reaching out to the Job Accommodation Network for suggestions as to what might work for the particular issues the plaintiff is facing with respect to the plaintiff’s particular job. Once that information is obtained, plaintiff should make that part of their advocacy for a reasonable accommodation. Hard to believe that the Job Accommodation Network ideas for what might work wouldn’t presumptively be deemed a reasonable request sufficient to enable the plaintiff’s case to go forward or sufficient for a court to demand the interactive process should have proceeded (assuming the court is in a jurisdiction that demands a facially reasonable accommodation request in order to activate the interactive process).
  5. The court to my mind confuses two distinct concepts when it comes to the ADA. Those concepts are whether a particular reasonable accommodation request should have been granted and whether the interactive process should have started in the first place. They are entirely two separate issues. A specific reasonable accommodation request does not have to be granted where it fundamentally alters the nature of the position, or if it will fundamentally alter the employer’s operations. That said, preventive law and much of the current case law demands once an employer has notice that an employee is in need of an accommodation because of a disability as a result of some information that the employer has received, the interactive process should begin. Of course, the employee is not entitled to the accommodation the employee wants, but rather is only entitled to a reasonable accommodation arrived as a result of the interactive process. Requiring a facially reasonable accommodation request in order to trigger the interactive process, defeats the whole purpose of the interactive process in the first place.
  6. This is yet another case using a McDonnell Douglas burden shifting approach. However two circuits (the Seventh and Eleventh), have made it clear here and here that they have lost patience with the McDonnell Douglas burden shifting approach. Also, as we discussed here, two Supreme Court justices, have signaled that they believe McDonnell Douglas burden shifting has run amok and should be reconsidered.
  7. Title I doesn’t actually use the term fundamental alteration at all with respect to how a business operates. Instead, fundamental alteration in that context are Title II and III concepts. That said, Chai Feldblum, a former EEOC Commissioner and very involved with the ADA from its inception, once referred to the undue hardship faced by a business with respect to its operations in a CLE I attended, as logistical undue hardship when used in the context of title I. She also said it was best thought of in fundamental alteration of the business/operations terms. We now have a case explicitly endorsing that approach.
  8. In many jurisdictions, a failure to engage in the interactive process is an independent cause of action, but that is not true everywhere. So, be sure to check your own particular jurisdiction for how it deals with that question.

Welcome to the new year everyone.

 

This week’s blog entry is an update on Granas v. Union Pacific Railroad Company, which we blogged on here. Subsequent to that blog entry, Union Pacific moved for judgment as a matter of law or a new trial. The court, here, was having none of it. Since we blogged on the case previously, we don’t need to explore the facts. So, the categories for this blog entry are: when can a jury verdict be overturned by a post-trial motion; when can a bench trial decision be overturned by a post-trial motion; the jury heard plenty of evidence showing that the plaintiff was a qualified individual under the ADA and Oregon law; Union Pacific’s business necessity and job-related defenses do not rise to the level where post-trial motions can be granted; substantial evidence exists for the punitive damages award; excessive punitive damages verdict argument does not fly; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

When Can a Jury Verdict Be Overturned by a Post-trial Motion

 

  1. A jury verdict can be overturned with a post-trial motion only if under the governing law, there is one reasonable conclusion to the verdict.
  2. In deciding to whether to overturn a jury verdict, a court has to view the evidence in the light most favorable to the nonmoving party and draw all reasonable evidentiary inferences in favor of the nonmoving party.
  3. The court has to uphold a jury’s verdict even if the record contains evidence that might support a contrary conclusion to the jury’s verdict.
  4. In the Ninth Circuit, a trial court may grant a new trial only if the verdict is contrary to the clear weight of the evidence, is based upon false or perjurious evidence, or to prevent a miscarriage of justice.
  5. The jury verdict is generally upheld on appeal if there is some reasonable basis for the jury’s verdict.

 

II

When Can a Bench Trial Decision Be Overturned by a Post-trial Motion

 

  1. While compensatory damages were decided by the jury, punitive damages and equitable damages are decided by the court.
  2. Three grounds exist for granting new trials in court-tried actions and they are: 1) manifest error of the law; 2) manifest error of fact; and 3) newly discovered evidence.
  3. With respect to a motion for reconsideration, it doesn’t get granted absent highly unusual circumstances, unless the court is presented with newly discovered evidence, committed clear error, or in the event of an intervening change in the controlling law.

 

III

The Jury Heard Plenty of Evidence Showing That the Plaintiff was a Qualified Individual per the ADA and Oregon Law

 

  1. The elements of a disability discrimination claim under the ADA and the Oregon law applicable to disability discrimination are the same and they involve the employee proving that he was: 1) disabled under the Act; 2) a qualified individual with a disability; and 3) discriminated against because of the disability.
  2. As discussed in the previous blog entry, here, plenty of evidence existed to support a jury reasonably finding that the plaintiff was a qualified person with a disability when the evidence is viewed in the light most favorable to the non-moving party. Further, nothing exists to suggest that the trial was not fair to the defendant.

IV

Union Pacific’s Business Necessity and Job-Related Defenses Do Not Rise to the Level Where Post-trial Motions Can Be Granted

 

  1. Per 42 U.S.C. §12112(b)(6) (the opinion has a typo in it as it references 42 U.S.C. §1211(b)(6) when it should be 42 U.S.C. §12112(b)(6)), an employer can only use a standard, test, or selection criteria if it is shown to be job-related and consistent with business necessity.
  2. Business necessity standard is met if the employer is faced with significant evidence causing a reasonable person to inquire as to whether an employee is still capable of performing his job.
  3. The employer has the burden of proving that a screening standard satisfies the business necessity defense.
  4. The business necessity standard is a high one and not to be confused with mere expediency.
  5. In the Ninth Circuit, the business necessity defense is rarely demonstrated, and courts have had little occasion to apply the defense.
  6. Evidence at trial showed that Union Pacific’s decision to remove plaintiff permanently was not the result of careful evaluation, but instead was the result of an application of a strict policy that automatically disqualified employees with shoulder dislocation.
  7. To show that its policy was job-related, Union Pacific needed to prove at trial, that the blanket policy used to disqualify the plaintiff fairly and accurately measured the individual’s actual ability to perform the essential functions of the job.
  8. When every person excluded by the qualification standard is a member of the protected class (disabled in this case), an employer has to demonstrate a predictive or significant correlation between the qualification and performance of the job’s essential functions.
  9. An employer using a business necessity defense must validate the test or exam in question for job-relatedness to the specific skills and physical requirements of the position.
  10. From the testimony of the people treating the plaintiff as well as expert opinion, a reasonable jury could conclude that the blanket rule prohibiting the continued employment of any individual with an anterior shoulder dislocation was arbitrary. Accordingly, viewing the evidence in the light most favorable to the nonmoving party, the jury’s verdict that Union Pacific had a discriminatory policy gets upheld.

 

V

Substantial Evidence Exists for the Punitive Damages Award

 

  1. Substantial evidence existed (see the discussion in our original blog entry, here), to support a finding that Union Pacific had sufficient malice, or a reckless and outrageous indifference to a highly unreasonable risk of harm.
  2. The court did not make the punitive damages decision lightly as it took briefing on the issue after trial and made extensive findings in its opinion. Accordingly, no reason exists for the court to depart from it findings and legal conclusions it previously adopted so as to necessitate nullifying the loud and clear mandate from the jury’s advisory verdict.

 

VI

Excessive Punitive Damages Verdict Argument Doesn’t Fly

  1. In determining whether a verdict is excessive, a court looks to: 1) the degree of reprehensibility of the defendant’s misconduct; 2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and 3) the difference between the punitive damages and the civil penalties authorized or imposed incomparable cases.
  2. The court found that Union Pacific was reckless and outrageous in its indifference by ignoring plaintiff’s medical documentation, his own representation about his individual abilities and his physical capacity to perform the duties of his job, and his treater’s recommendations. Also, testimony at trial, established that Union Pacific would refuse to allow plaintiff to return to work no matter what, based on its policy of excluding anyone from safety-sensitive jobs who have sustained a shoulder dislocation (a view consistently maintained by Union Pacific in its briefings as well).
  3. The disparity between the actual harm and the award was not great considering that plaintiff lost out on his livelihood that was not easily replaceable in the small community he lived in.
  4. The court also determined that as far as punitive damages awards go, the award was not remarkable when considered against the number of cases plaintiff had compiled supporting large punitive damages awards.
  5. Union Pacific has not presented any newly discoverable evidence, a basis for showing that the court committed clear error, or that there was an intervening change in the controlling law.
  6. From the beginning of the lawsuit through each stage of litigation, plaintiff has met his burden to show that Union Pacific imposed a blanket requirement that employees in certain positions disclose specific health conditions. Further, once they did that, Union Pacific automatically restricted the employee from working, regardless of whether the employee is physically able to perform the essential functions of the job, as plaintiff showed that he could.

 

VII

Thoughts/Takeaways

 

  1. It is not easy to overturn a jury’s verdict or the decision of a judge by way of post-trial motions.
  2. The business necessity defense is an affirmative defense and is a high standard to meet if it is to be successfully utilized.
  3. A touchtone of the ADA is the performing of an individualized analysis. Things can go really wrong if that is not done.
  4. One of the hot areas in ADA litigation right now, is employers insisting on persons returning to their physical locations for work. Lawyers representing persons with disabilities would do well to zero in on the aspect of the court’s reasoning where it said that with respect to a qualification standard, it was up to the employer to demonstrate a predictive or significant correlation between the qualification and the performance of the job’s essential functions. In the rush to return people to their offices, I have seen lots of articles talking about culture, collaboration, etc. However, I have yet to see myself articles talking about the demonstrations a predictive or significant correlations between the return to office mandate and the performance of the job’s essential functions. While I have read many articles talking about how the ability to move up in an organization can depend upon physical presence at the office, that isn’t at all the same thing as being able to do the essential functions of the job remotely.
  5. It will not surprise anyone that Union Pacific filed a notice of appeal to the Ninth Circuit on December 29, 2025. Seems to me, that Union Pacific’s best argument on appeal is going to be whether the award is excessive. Plaintiff would seem, to my mind anyway, to have a very strong case with respect to the discriminatory policy.

As promised below is the greatest hits for the Understanding the ADA blog for 2025. Some of the entries that appear in the greatest hits section were not the greatest hits of 2025, but are so important that I keep them in there any way. Here goes the list for 2025 in reverse order of popularity:

 

  1. At number 14, with 673 views: Indian Tribes, Sovereign Immunity, and the ADA.
  2. At number 13, with 694 views: ADA Disparate Impact Claims.
  3. At number 12, with 706 views: Shot across the Bow to Judges and Court Systems.
  4. At number 11, with 762 views: 309 Contains a Fundamental Alteration Defense.
  5. At number 10, with 804 views: But for and Motivating Factor Are Two Different Things.
  6. At number nine, with 821 views: Religious Freedom and Remote Work ADA Implications and Latest with HUD and Animals in Housing.
  7. At number eight, with 825 views: Landlord Can Charge a Fee for ESA’s and Pets and the Impact of Loper Bright.
  8. At number 7, with 898 views: Do’s and Don’ts of the Interactive Process.
  9. At number 6, with 923 views: Why All Colleges and Graduate Programs Need to Do the Two-Step: Essential Eligibility Requirements and Direct Threat.
  10. At number 5, with 977 views: Insurance Policy for Landlords Containing Breed Restrictions for ESA/SA Can Violate the FHA.
  11. At number 4, with 1,100 views: Unreasonable Delay in Granting a Reasonable Accommodation Request Is Actionable.
  12. At number 3, with 1156 views: Temporary Disability Can Be a Protected ADA Disability and Other Stuff.
  13. At number 2, with 1,691 views: Failure to Accommodate, Direct Evidence, and Adverse Action.
  14. At number 1, with 1,737 views, and the one that wins it all yearly, at least for the last several years: ADA And the Applicable Statute of Limitations.

Happy holidays and happy new year to everyone!!!