Before getting started on the blog entry of the week, a housekeeping matter, I am thinking that there may be one additional substantive blog for the rest of the year before I do the 2025 greatest hits. My thinking is that one more substantive blog entry after this will appear the week of December 8. Over Christmas week, I will put up the 2025 greatest hits. After that, my plan is to pick up blogging again after the new year.

Turning to the blog entry of the week, did you know when it comes to employment matters, that §504 of the Rehabilitation Act, and probably §501 as well, do not support a cause of action for retaliation? Until this week, I didn’t know that either. However, that is exactly what the Sixth Circuit in a published decision, held in Smith v. Michigan Department of Corrections decided on November 21, 2025, here. As usual, the blog entry is divided into categories and they are: facts; whether §504 retaliation cause of action existence been addressed squarely by the Supreme Court or by the Sixth Circuit in the past; whether an implied cause of action under §504 exists; how significant is 29 U.S.C. §794(d)’s reference to standards of Title I of the ADA to the question of whether a retaliation cause of action exists under §504; Title IX is of no help to plaintiff with respect to plaintiff’s claim that §504 includes a retaliation claim; Department of Labor regulation allowing for a retaliation cause of action is of no help to the plaintiff; it would be unconstitutional to find that a §504 retaliation claim exists; summary judgment properly granted on the failure to accommodate claim; concurring (failure to accommodate claim), and dissenting (retaliation claim existence), opinion by Judge Bloomekatz; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts

The facts are really quite simple for our purposes. You have a person that becomes a person with a disability and requests accommodations. After that, the allegations are that the Michigan Department of Corrections retaliated for requesting those accommodations and ultimately terminated the plaintiff. Plaintiff brought suit under §504 of the Rehabilitation Act and not under Title I of the ADA. The district court grants summary judgment on the failure to accommodate claim but allows the retaliation claim go to trial. At trial, plaintiff loses on the retaliation claim and appeals. During the appellate process, the Sixth Circuit sought supplemental briefing on whether §504 of the Rehabilitation Act even supports a retaliation claim.

II

Whether §504 Retaliation Cause of Action Existence Has Been Addressed Squarely By The Supreme Court or by The Sixth Circuit In The Past

1. The Supreme Court has never held that any provision of the Rehabilitation Act creates a private right of action for retaliation.
2. No binding precedent from the Sixth Circuit exist on the question either.
3. For a prior panel’s conclusion about an issue to be part of its holding, it must be clear that the court considered the issue and consciously reached a conclusion about it. No cases from the Sixth Circuit exists meeting this standard with respect to whether §504 supports a retaliation cause of action.
4. The Sixth Circuit has proceeded under the assumption that §504 does support a retaliation cause of action, but it has never explicitly held as much. The specific reasoning for the assumption tends to be all over the place and lacks rigorous statutory analysis or clear confrontation of the issue.
5. Other circuits assuming the existence of a retaliation cause of action under §504 also apply divergent and inconsistent rationales as well.

III

Whether An Implied Cause Of Action Under §504 Exists

1. The presumption against implied causes of action carry particular weight per statutes enacted under the spending clause, which the Rehabilitation Act is one of those statutes.
2. Spending legislation functions much in the nature of a contract between the federal government and state governments. Accordingly, when Congress legislates under its spending power, any conditions it attaches to the receipt of federal funds, including exposure to private lawsuits, must be stated unambiguously.
3. Recipients of federal funds have to have clear notice of the obligation they are undertaking, including the scope of any potential liability.
4. 504(a) of the Rehabilitation Act, which talks about the causation standard for Rehabilitation Act claims under §504, contains no mention of retaliation.
5. Without evidence of statutory intent, a cause of action does not exist and courts cannot create one regardless of how desirable that might be as a policy matter or how compatible it might be with the statute.
6. If Congress intended to impose liability on states for retaliation under the Rehabilitation Act, it has to do so with a clear voice, but §504 is silent (emphasis in opinion), as to retaliation.
7. In deciding whether a statute creates a private right of action, the controlling question is whether Congress intended (emphasis in opinion), to authorize that cause of action in the text. That standard is especially demanding when it comes to spending clause legislation because a state’s consent to private enforcement suit cannot be fairly inferred unless Congress provided clear and unambiguous notice that the statute created a personally enforceable right.
8. Congress knows how to explicitly create retaliation claims and such claims are commonly found in a range of other federal statutes, including: Title VII; ADEA; ADA; OSHA; FLSA; and FMLA. What all of the statutes have in common is that when Congress intend to authorize a retaliation cause of action, it does so in a straightforward fashion by separating the anti-retaliation provision from any underlying prohibition or discrimination. On the other hand, the Rehabilitation Act contains no express anti-retaliation provision, which raises a serious question about whether such a cause of action exists in the first place and if it does, what legal foundation exists for it. The distinction is critical when one considers that the Rehabilitation Act is spending clause legislation and Title VII, the ADA, and the ADEA rest on other sources of congressional power.
9. Congress’s decision to omit a retaliation provision from the Rehabilitation Act after (emphasis in opinion), it included a provision in statutes such as the ADA, Title VII, and the ADEA, is strong evidence that it did not intend to authorize private retaliation claims under the Rehabilitation Act.

V

How Significant Is 29 U.S.C. §794(d)’s Reference to Standards Of Title I Of The ADA To The Question Of Whether A Retaliation Cause Of Action Exists Under §504

1. 29 U.S.C. §794(d) provides: “Standards used in determining violation of section The standards used to determine whether this section has been violated in a complaint alleging employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.) and the provisions of sections 501 through 504, and 510, of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201 to 12204 and 12210), as such sections relate to employment.”
2. “Standards,” is not synonymous with “cause of action,” in legal parlance.
3. Standards refer to how claims are adjudicated and not to whether a cause of action exists in the first place. For example, pleading standards refer to the level of detail a complaint must allege in order to survive a motion to dismiss. Evidentiary standards describe the burden of proof a party must meet. In the employment context, evidentiary standards commonly pertain to the familiar McDonnell Douglas burden shifting framework for cases lacking direct evidence of discrimination. In other words, “standards,” refers to how courts measure whether the facts meet the legal requirements for a cause of action or defense and not to the creation of a right to sue.
4. Far from establishing new causes of action, “standards,” has been understood to refer to the substantive rules or burden, in this case the standard of causation, that govern how courts evaluate claims under the Rehabilitation Act.
5. In prior cases, the Sixth Circuit has held that claims brought under §501 of the Rehabilitation Act, which contains within it an identical clause to 29 U.S.C. §794(d) for applicable standards, that but for causation rather than solely by reason is the applicable standard to use. Those holdings confirm that “standard,” refers to the rule or burden used to evaluate a claim rather than the source of the claim itself.
6. The ADA points in the same direction as the ADA includes both an express retaliation provision and its own references to standards.
7. Accordingly, the use of “standards,” by Congress was meant to inform how claims are assessed and not to authorize new categories of claims, such as retaliation.
8. When the Supreme Court has referred to “standards,” it has generally done so regarding substantive legal criteria or methods of analysis and not with respect to the scope of claims that a plaintiff may bring, which makes sense because the word “standards,” speaks only to how (emphasis in opinion), existing liability is assess as opposed to what kinds (emphasis in opinion), of liability are available.

VI

Title IX Is Of No Help To Plaintiff With Respect To Plaintiff’s Claim That §504 Includes A Retaliation Claim

1. The Rehabilitation Act does not contain within it a similar history of expansive judicial interpretation like was seen in Title IX when the Court decided that an implied cause of action for retaliation existed.

VII

Department Of Labor Regulations Allowing For A Retaliation Cause Of Action Is Of No Help To The Plaintiff

1. An agency regulation cannot create a private right of action in the statute itself does not.
2. The particular regulation mentioned by plaintiff, is a Department of Labor regulation and does not apply to state entities like the Michigan Department of Corrections.
3. Even if the regulation somehow applied, agency regulations cannot expand the scope of liability beyond what Congress has authorized in the statute.

VIII

It Would Be Unconstitutional To Find That A §504 Retaliation Claim Exists

1. The Constitution prevents subjecting states to liability for claims based upon indirect statutory cross-references, which are largely indeterminate provision susceptible to a range of plausible meetings.
2. Reading a private right of action for retaliation into §504 fails to provide a clear notice demanded by the Constitution.
3. Congress has never said that the Rehabilitation Act independently authorize a retaliation claim through indirect reference alone.
4. If Congress intended to create a new retaliation cause of action Rehabilitation Act, it could have done so as it has done precisely that in other contexts numerous times before.

IX

Summary Judgment Properly Granted on The Failure To Accommodate Claim; Concurring (Failure To Accommodate Claim)

1. Failure to accommodate claims necessarily involve direct evidence.
2. Proving up a failure to accommodate claim involves showing plaintiff is: 1) a person with a disability; 2) is otherwise qualified; 3) the employer knew or had reason to know about plaintiff’s disability; 4) plaintiff requested an accommodation; and 5) the employer failed to provide an accommodation.
3. Plaintiff also bears the burden of demonstrating that the requested accommodation was reasonable. If plaintiff succeeds on the showing that requested accommodation was reasonable, the burden then shifts to the employer to show that a challenged criterion is essential, and therefore a business necessity, or that a proposed accommodation will impose an undue hardship upon the employer.
4. When an employee remains officially classified in his or her permanent role and continues to receive the corresponding salary and benefits even while working in a temporary or modified position, the position is not redefined based on the duties of the temporary assignment. Therefore, the correct reference point is the permanent position, in this case the corrections officer.
5. Plaintiff concedes that he could not perform the essential functions of a corrections officer.
6. Plaintiff’s proposed accommodation reassignment to a different position was not a reasonable one because reassignment under the ADA requires more than a general assertion of what plaintiff believes is available. Also, the record makes clear that plaintiff was in a temporary assignment that was not permanent and not one eligible for reassignment.
7. A general need for position does not transform a temporary assignment into a vacant, budgeted position eligible for reassignment.
8. An employer is not required to create a permanent position simply because an employee’s transitional role happens to meet a temporary operational need.
9. A breakdown in the interactive process is actionable only if it prevents identification of an appropriate accommodation for a qualified individual, which simply can’t be true here because plaintiff’s proposed accommodation was not reasonable.
10. Since plaintiff cannot meet the prima facie showing of discrimination, the question of undue hardship never arises.

X

Concurring (Failure to Accommodate), and Dissenting (Retaliation Claim Existence), By Judge Bloomekatz

Judge Bloomekatz agrees that summary judgment was proper on the failure to accommodate claim and does not spend any time on that point. So, the rest of this section focuses on his view that §504 supports a retaliation claim.

1. The Sixth Circuit has consistently held that §504 provides a cause of action for retaliation.
2. The consensus that §504 supports a retaliation claim cause of action, grounded in statutory text, is also based on the reality of employment discrimination claims. In employment discrimination claims, protection against retaliation is essential to effective enforcement of antidiscrimination statutes because those statutes depend on individuals coming forward to report violations. This is especially true in the disability realm, where statutory protections apply after an employee assert the right by disclosing the disability and seeking accommodation, which is a step that makes the employee vulnerable to retaliation.
3. Congressional prohibition on discriminating against a disabled employee accomplishes very little if an employer can legally retaliate against that same employee for requesting an accommodation. It therefore follows that Congress applied a critical enforcement mechanism when it incorporated the ADA’s anti-retaliation provision to employment discrimination claims brought under the Rehabilitation Act.
4. Since the employer conceded from the outset of the case, including throughout the appeal process until the very end when supplemental briefing was requested, that §504 has a retaliation cause of action and that question is not jurisdictional, there is no reason for the Sixth Circuit to decide the issue. The fact that the issue first arose in supplemental briefing should not give the employer a second bite of the apple.
5. The majority opinion is too quick to dismiss the long line of cases permitting a retaliation claim under §504.
6. 29 U.S.C. §794(d) creates a carveout for employment discrimination claims. This particular section expressly references several ADA provisions including §503 (42 U.S.C. §12203(a)-the anti-retaliation cause of action. The Sixth Circuit has read this language in the ADA in the past as authorizing a private right of action for victims of retaliation, and the answer should be no different under §504 of the Rehabilitation Act.
7. In a footnote, Judge Bloomekatz says that adopting a but for causation standard for employment discrimination claims does not create any sort of conflict at all because §504(d), 29 U.S.C. §794(d), says that the “standards,” used in employment discrimination claims are the standards applied by the ADA.
8. 504(d) of the Rehabilitation Act expressly incorporates the ADA retaliation provision thereby giving clear and unambiguous notice that the Rehabilitation Act creates a personally enforceable right.
9. Congress need not use magic words in order to speak clearly, which is what the majority seems to suggest in its opinion.
10. Congress chose to proceed by incorporating the ADA’s anti-retaliation clause into the statute through directly cross-referencing rather than laying it out explicitly. However, that doesn’t make the inclusion of a retaliation claim unclear. The cross-references are absolutely clear that the anti-retaliation provision of the ADA is specifically included in §504 of the Rehabilitation Act.
11. The majority opinion views “standards,” too narrowly and also makes much of §504(d) of the Rehabilitation Act meaningless.
12. “Standards,” can also encompass substantive prohibitions, metrics for evaluating those prohibition, and corrective action alike.
13. Prohibiting retaliation and providing a remedy, can be “standards,” prescribed by a statute.
14. “Standards,” can still incorporate prohibitions, such as a ban on retaliation.
15. No one disputes that a cause of action for violating §504(a) of the Rehabilitation Act exists.
16. The cross reference provisions to the ADA mean if the ADA is violated, then the Rehabilitation Act is also violated.
17. It cannot be assumed that the cross-references to the ADA do nothing to the statute, but that is exactly what the majority opinion assumes.
18. 42 U.S.C. §12203 of the ADA contain three provision: retaliation; interference; and a provision establishing remedies and procedures for those claims. The majority opinion renders the entire cross reference relevant. Under its logic, the majority opinion does not allow any new categories of claims such as retaliation and presumably for interference as well, all of which renders the cross reference to both of those prohibition absolutely meaningless, along with the provision setting forth the remedy for violating those provisions. That simply is not how statutes are supposed to be read.
19. Courts must give affect to every clause and word of a statute.
20. Since a retaliation claim is allowable, the jury instruction that focused on solely by reason of as the proper causation standard was not harmless error.

XI

Thoughts/Takeaways

1. We have seen the argument before that a long line of cases saying that something is allowed does not preclude the US Supreme Court from saying that what everybody assumed for years was wrong. This is exactly what happened when the Supreme Court decided that emotional distress damages were not available under §504 in Cummings, which we discussed here.
2. 501 of the Rehabilitation Act contains an identical clause as §504 of the Rehabilitation Act. So, that leads to the question of whether this decision would preclude federal employees from claiming retaliation and/or interference under §501 of the Rehabilitation Act.
3. The Supreme Court certainly does not like to find implied private right of actions if it all can help it. The question here is whether the cause of action for retaliation under §504 is actually implied. It could be argued, as the dissent does, that the cause of action is not implied at all even if it is inartfully worded.
4. The best argument that a retaliation cause of action does not exist is probably that the retaliation cause of action is not explicitly stated in the Rehabilitation Act, and Congress will specify retaliation when it chooses to do so. On the other hand, the dissent points out that failing to incorporate the retaliation cause of action into the Rehabilitation Act, makes much of the cross-references in 29 U.S.C. §794(d) meaningless. Also, even if you assume “standards,” means what the majority says it means, it is hard to understand why Congress would incorporate standards with respect to a certain cause of action that doesn’t even exist. Hard to say what a majority of the Supreme Court would do when faced with these diametrically opposed views. If I’m having to guess, one would think that the Supreme Court would lean towards the majority opinion and not to the dissent but one never knows.
5. This is not an easy case to get a handle on. One wonders if an en banc hearing will not be requested by the plaintiff.
6. The Supreme Court will undoubtedly have to step in at some point.
7. This is a published decision. Accordingly, one can certainly now expect an avalanche of defense attorneys moving to dismiss any retaliation or interference allegations from lawsuits claiming employment discrimination under §504 or §501 of the Rehabilitation Act.
8. I am seeing cases saying that failure to accommodate claims are direct evidence claims and not subject to McDonnell Douglas. That said, even though failure to accommodate claims are direct evidence claims, there is still burden shifting that goes on.
9. I suspect that the reason why Title I of the ADA was not pursued in this case had to do with issues pertaining to sovereign immunity (the Supreme Court has held that sovereign immunity is not forcibly waived when it comes to employment matters per this decision, here. On the other hand, the courts are virtually unanimous that taking federal funds waives sovereign immunity for purposes of Rehabilitation Act claims).
10. The majority opinion may go too far with respect to its very narrow view of when reassignment is in play. Regardless, such a narrow view is not great preventive law. We have discussed numerous times how courts are all over the place when it comes to mandatory reassignment. See this blog entry for example. See also this blog entry discussing the notice required when it comes to reassignment, which will probably be the subject of my final substantive blog entry for the year (the court denied a motion for reconsideration worth discussing).