For those in New England, congratulations on a phenomenal come back. Greatest comeback in Super Bowl history. As you can imagine, people in Atlanta are a bit besides themselves. I am relatively new to the Atlanta area, going on five years now, and so perhaps it didn’t hit me quite so hard. Also, growing up in near north suburban Chicago a Cubs fan and seeing what happened to them over the years, before last year anyway, I can say that I have kind of been there before. I was actually in Jack Murphy Stadium when the ground ball went through Leon Durham’s legs. At any rate, Atlanta has a great coach and a young team, and we will be back.

Turning to the blog entry of the day, as everyone knows Judge Gorsuch of the 10th Circuit was nominated by Donald Trump to the Supreme Court. Lots of my fellow bloggers have talked about his record and what it might mean for their particular discipline. However, I have not seen anybody focus on the record with respect to the rights of persons with disabilities, and so I thought I would give it a shot. The blog entry is divided into two categories: from his opinions, and takeaways. It is a short blog entry, and so I imagine you will want to read all of it.


From His Opinions

  1. While he is not a legislative history guy, he is not adverse to trying to figure out what the idea behind the law is (what we call policy). Also, he would not have supported a broad exhaustion requirement under IDEA, which dispute we discussed in this blog entry. See, Muskrat v. Deer Creek Public Schools.
  2. Title II of the ADA does not apply to employment. Elwell v. Oklahoma ex rel. Board of Regents of the University of Oklahoma.
  3. Despises Chevron deference and would like Auer even less. Gutierrez-Brizuela v. Lynch. For those unaware, Chevron forces the courts in most circumstances to grant deference to agency regulations that go through the proper rulemaking process, while Auer does the same for agency interpretations of their own regulations.
  4. Inflexible leave policies are okay and may, in his view, even benefit persons with disabilities. Hwang v. Kansas State University. This case involved an inflexible six months of sick leave policy before termination. In this case, he also seems to value the interactive process.
  5. A reasonable accommodation request can be per se unreasonable. Id.
  6. Whether a reasonable accommodation exist is an independent question from whether an undue hardship exist. Id.
  7. Would likely not decide in favor of mandatory reassignment to a vacant position being something demanded by the ADA. Hwang; Iverson v. City of Shawnee.
  8. He is not in favor of criminalizing student behavior when not supported by common sense. AM v. Holmes.
  9. An employer violates his interactive process obligations where the plaintiff can show the employer’s failure to engage in the interactive process results in a failure to identify an appropriate accommodation for the qualified person with a disability. Lowe v. Independent School District No. 1.
  10. Proving an interactive process violation requires a plaintiff showing that the interactive process would have likely produced a reasonable accommodation. Iverson.
  11. Plaintiff will lose on summary judgment a plaintiff failed to show that a reasonable accommodation was possible and that the interactive process would have led to an accommodation. Id.
  12. Employee has the burden to identify vacant position existing at time of reassignment requests. Id.



  1. Judge Gorsuch from these opinions seem to be a four corners guy. That is, he narrowly focuses on the dispute and on the wording involved in the applicable law and is not quick to look for ambiguity. Not a fan of legislative history, but it isn’t adverse to using common sense and trying to figure out what the law is attempting to accomplish.
  2. Could very well take a narrow view of an employer’s obligations with respect to reassigning an employee no longer qualified for their current job to a vacant position they are qualified for. See this blog entry for example.
  3. Has a very strict view of the separation of powers and will aggressively protect that view. That is, all three (emphasis mine), branches of government have very strict constitutional parameters they are supposed operate on and they should not go further.
  4. Giving deference to agency interpretations of their own regulations is likely dead once he joins the court. See this blog entry for example.
  5. Unclear as to what premium he puts on the interactive process. The cases discussed here send mixed signals on that.
  6. An interesting view is that reasonable accommodation exists independent of undue hardship. See this blog entry for example.