Today’s blog entry discusses the recent guidance from the CDC on consideration for wearing masks updated on August 7, 2020. It also discusses two different recent guidances from the EEOC on opioids. My thanks to Eric Meyer for pointing out the CDC guidance. He has an entry on it in his blog, here. The CDC guidance can be found here. Links to the EEOC guidances can be found here. With respect to the categories that this blog entry is divided into, what I will do is explore each of the guidances and then have a separate section immediately after each guidance discussing my thought takeaways on that particular guidance. So, the blog entry is best read in consecutive pairs. Of course, the reader is free to read all of the blog entry if they so desire or any part of it.



CDC Mask Guidance


Let’s turn to the CDC guidance unmasks first. Understanding what CDC is thinking about mask is critical because that very much informs whether a direct threat per the ADA is involved with respect to an individual that doesn’t wear it. At the very beginning of the document, the CDC lays out key bullet points and they are:


  • CDC recommends that people wear masks in public settings and when around people who don’t live in your household, especially when other social distancing measures are difficult to maintain.
  • Masks may help prevent people who have COVID-19 from spreading the virus to others.
  • Masks are most likely to reduce the spread of COVID-19 when they are widely used by people in public settings.
  • Masks should NOT be worn by children under the age of 2 or anyone who has trouble breathing, is unconscious, incapacitated, or otherwise unable to remove the mask without assistance.
  • Masks with exhalation valves or vents should NOT be worn to help prevent the person wearing the mask from spreading COVID-19 to others (source control).

Other salient points of the guidance include:

  1. Masks help prevent a person who is sick from spreading the virus to others. It helps keep respiratory droplets from reaching other people.
  2. People who should not be wearing mask include: children younger than two; anyone who has trouble breathing; and anyone who is unconscious, incapacitated, or otherwise unable to remove the mask without assistance.
  3. People should not wear a mask while engaged in activities causing the mask to become wet, like when swimming at the beach or a pool. When swimming, it is particularly important to maintain physical distancing from others when in the water.
  4. People engaged in high intensity activities, like running, may not be able to wear a mask if it causes difficulty breathing. If wearing a mask is not possible, focus on outdoor activity and maintaining physical distancing.
  5. Masks are a critical preventive measure and are most essential in times when social distancing is difficult. If masks cannot be used, be sure to take other measures, such as social distancing, frequent handwashing, and cleaning and disinfecting frequently touched surfaces.
  6. Masks with one-way valves or vents allowing air to be exhaled through a hole in the material can result in expelled respiratory droplets that can reach others. Accordingly, CDC is not recommending using masks with an exhalation valve or a vent.
  7. Regarding face shields:

A face shield is primarily used for eye protection for the person wearing it. At this time, it is not known what level of protection a face shield provides to people nearby from the spray of respiratory droplets from the wearer. There is currently not enough evidence to support the effectiveness of face shields for source control. Therefore, CDC does not currently recommend use of face shields as a substitute for masks.

However, wearing a mask may not be feasible in every situation for some people for example, people who are deaf or hard of hearing—or those who care for or interact with a person who is hearing impaired. Here are some considerations for individuals who must wear a face shield instead of a mas

  1. Although evidence on face shields is limited, the available data suggest that the following face shields may provide better source control than others
    1. Face shields that wrap around the sides of the wearer’s face and extend below the chin.
    2. Hooded face shields.
  2. Face shield wearers should wash their hands before and after removing the face shield and avoid touching their eyes, nose and mouth when removing it.
  3. Disposable face shields should only be worn for a single use and disposed of according to manufacturer instructions.
  4. Reusable face shields should be cleaned and disinfected after each use according to manufacturer instructions or by following CDC face shield cleaning instructions.
  5. Plastic face shields for newborns and infants are NOT recommended.


  1. With respect to the deaf and hard of hearing or with respect to a person caring for interacting with the person who is “hearing impaired,” those individuals may be unable to wear mask if they rely on lip reading to communicate. In that situation, the CDC recommends a clear mask. If a clear mask isn’t available, consider whether you can use written communication, closed captioning, or decrease the background noise to make communication possible while wearing a mask that blocks your lips.


Thoughts/Takeaways on the CDC Mask Guidance


  1. CDC is saying that a failure to wear a mask means that you are a direct threat to others if social distancing is not possible. As such, any entity subject to the ADA will have to do everything short of the direct threat situation to accommodate that individual.
  2. CDC is not currently recommending the use of face shields as a substitute for masks because there is currently not enough evidence to support the effectiveness of face shields for source control. That said, they shields that wrap around the sides of the wearer’s face and extend below the chin as well as hooded face shields may provide better source controls than other kinds of face shields.
  3. Whenever the guidance refers to people who are deaf or hard of hearing, a part of me goes absolutely batty for a couple of different reasons. First, a person who is deaf or hard of hearing has no problem wearing a mask absent some other kind of medical consideration. The problem is trying understand others who are wearing a mask if they are lip readers, which includes myself. Second, CDC uses the term, “hearing impaired.” In the hearing loss community, that term as a general rule drives people absolutely insane. There is nothing impaired about my hearing. I am without hearing aids someone who has a severe to profound hearing but that doesn’t make me impaired. Third, the CDC guideline doesn’t mention Deaf at all, rather it just refers to deaf. There is a world of difference between a culturally deaf individual, Deaf, and a deaf individual. A culturally deaf individual is someone who uses ASL, is medically deaf (severe to profound hearing loss), and went to a state school for the deaf. A bonus exists if you are genetically deaf. With respect to deaf, lowercase, that just means you have a severe to profound hearing loss. There is also a split among the Deaf community between ASL first and the oral deaf, who may or may not know ASL. Fourth, for the culturally deaf, written communications may not work at all. Fifth, closed captioning will work for the deaf and hard of hearing communities, but not necessarily for the culturally deaf community. Sixth, I fail to understand how it is practically possible to reduce most background noise. Finally, even hearing people have their comprehension reduced by masks that are not clear. In the speech range sounds, masks, according to my audiologist, reduce the sound by 7-12 db. Considering every three DB of sound is double the amount of sound, that is a tremendous amount of sound being reduced. If you have clear masks that meet CDC guidelines, why not use that as a default. Also, even for the culturally deaf, a clear mask is advantageous because they can see the lips and the face to help give context to the signs.



EEOC Guidance on the Use of Codeine, Oxycodone, and Other Opioids: Information for Employees


  1. The key to remember is that the title I of the ADA has an exception for using drugs illegally. So, if you are not using drugs illegally, you still may be protected under the ADA if you are using opioids.
  2. If you are in a MAT program for opioid addiction that requires you to take opioid medication, then under the ADA you cannot be denied a job or fired from a job because you are in such a program unless you cannot do the job safely and effectively or you are disqualified under another federal law.
  3. An employer should give anyone subject to drug testing an opportunity to provide information about lawful drug use that may cause a drug test result that shows opioid use. They can do that by asking before the test is administered whether the person takes medication that could cause a positive result or ask all people testing positive for an explanation.
  4. If you have recovered from an opioid addiction but still need a reasonable accommodation to help avoid relapse, you can get that.
  5. If there is a dispute between the employer and the employee regarding whether the employee can do the job safely, the employer must have objective evidence that the employee cannot do the job or poses a significant safety risk even with a reasonable accommodation. Those risks cannot be remote or speculative. The employer would have the right to ask the employee to undergo a medical evaluation.


Thoughts/Takeaways on The EEOC Guidance On The Use Of Codeine, Oxycodone, And Other Opioids: Information For Employees


  1. For those who are practitioners of the ADA in the labor and employment field, there isn’t anything new in this guideline. I would have preferred if the EEOC specifically use the term direct threat rather than terms indicating the same without using the words. “Direct threat,” is a term of art and is a high standard to meet.



EEOC Guidance on How Healthcare Providers Can Help Current and Former Patients Who Have Use Opioid Stay Employed


  1. People with a history of opioid use or misuse may have the right under the ADA to get reasonable accommodations helping them to stay employed and in treatment.
  2. Where a patient is taking a prescription opioid to treat pain from a medical condition, the underlying medical condition likely qualifies as an ADA disability thereby giving them the right to seek reasonable accommodations.
  3. Opioid use disorder is a diagnosable medical condition likely to qualify as an ADA disability.
  4. The ADA contains an exception for people using heroin for opioid medication without a valid prescription. The ADA does not prohibit an employer from taking adverse action based upon the current illegal use of drugs.
  5. A patient with a past addiction to opioids can get a reasonable accommodation if he or she needs one because of the past addiction.
  6. When a medical professional is documenting the need for an accommodation, things the medical professional want to cover include: 1) the professional’s qualifications and the nature and length of his or her relationship with the patient; 2) the nature of the patient’s medical condition; 3) the patient’s functional limitations in the absence of treatment. That is, describing the extent the condition limits a major life activity; 4) the need for reasonable accommodations. That is, explaining how the patient’s medical condition make changes at work necessary; and 5) suggesting accommodations if the medical professional is aware of an effective accommodation.
  7. Safety concerns only justify a suspension of duties or other adverse action if the risk rises to the level of a direct threat.
  8. To decide if an employee poses a direct threat, employers need information to help them assess the level of risk posed by the disability. Things to consider include: 1) the probability the harm will occur; 2) the imminence of the potential harm; 3) the duration of the risk, and 4) the severity of the potential harm.


  1. In describing safety risk, any estimate of such safety risk have to be based upon the most current available medical information and should also take into account the treatment regimen and medical history of the individual being evaluated.


Thoughts/Takeaways on the EEOC Guidance on How Healthcare Providers Can Help Current and Former Patients Who Have Use Opioid Stay Employed


  1. It is really helpful how the EEOC uses the term “direct threat,” in this publication and then also explains what it means. I wish they had done the same in their use of codeine, oxycodone, and other opioids guidance.
  2. The ADA exception applies to the current illegal use of drugs. That is an important distinction to keep in mind where people are using medications with a valid prescription. As we discussed here, current use of illegal drugs can get very complicated.
  3. Opioid use disorder is likely to qualify as an ADA disability according to the EEOC.
  4. I expect the EEOC laying out how a medical professional to deal with writing up a support for reasonable accommodation will be very helpful to medical professionals. The employer’s can make the employee’s medical professional’s job easier by giving that person a list of what are the essential functions of his or her job.
  5. “Direct threat,” is a term of art that we have discussed many times before, such as here. It is not a low standard.
  6. Always need to do an individualized analysis.
  7. Don’t forget about doing the interactive process right, which we discussed here.

Today’s blog entry is the first one that I am making on the Lexblog platform. This platform replaces my previous website and my previous blog site. All of my blog entries have been carried over. I think everyone will find this much more informative and faster. You will also have a much better idea of what is going on in my practice at a current time. For example, it is now much easier to find out what presentations I am making, new articles, etc.


The case of the day, Kenneh v. Homeward Bound Inc., decided by the MN Supreme Court on June 3, 2020, actually has nothing to do with disability. However, it has something to do with hostile work environment and the way such cases have been looked at in the past. I think it is worthwhile exploring because it is entirely possible that Minnesota may be starting something that will carry over to other states if not to the federal courts. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.





Kenneh began working for respondent Homeward Bound, Inc., a nonprofit organization that operates residential care facilities for people with disabilities, in 2014. Kenneh transitioned to working as a Program Resource Coordinator at the Brooklyn Park location in February 2016. Shortly after she started in this new position, she met the maintenance coordinator, Anthony Johnson. Because Johnson worked at multiple sites, he was not at the Brooklyn Park location every day. Kenneh alleges that Johnson engaged in multiple incidents of sexual harassment from approximately February until June 2016. On their first encounter, Johnson complimented Kenneh on her haircut. He asked her who had cut her hair and where she lived. Although Kenneh said that her cousin cut her hair, Johnson said that he would cut her hair, at her home or at his. Kenneh was alarmed by the idea that a person she had just met would invite her into his home. Not long after their first encounter, Johnson walked by Kenneh’s office and saw her struggling to open her desk drawer. He offered to help. As Kenneh started to move out of his way, he told her that she did not need to move because he “likes it pretty all day and all night.” He also told her he liked “beautiful women and beautiful legs.” Kenneh got out of her chair to avoid contact with him. While he was working on her desk, Johnson began talking to her in a seductive tone and licked his lips in a suggestive manner. On March 24, Johnson stopped by Kenneh’s office, blocking her door with his body. Kenneh made up an excuse to leave her office to avoid Johnson. She told him that she was going to buy something to drink from a nearby gas station. In what Kenneh viewed to be a sexually suggestive tone of voice, Johnson insisted on taking Kenneh to the onsite 5 vending machine. Kenneh complied. On their way back from the vending machine, Kenneh suggested that Johnson could take some of the cake left over from a party held earlier that day. Johnson turned to look at Kenneh, licked his lips, and said in a seductive tone, “I don’t eat any of this.” When Kenneh asked Johnson what he meant, he said, “I will eat you—I eat women.” Kenneh quickly walked past him and went back to her office alone. On March 31, Kenneh was buying gas when Johnson drove up alongside her car. He rolled down the window and asked Kenneh where she was going. Kenneh answered Johnson’s questions. When Kenneh pulled out of the gas station, she noticed Johnson left immediately after her, without putting gas in his car. Kenneh told her supervisor about Johnson’s comments and conduct the following day. Her supervisor was alarmed and asked Kenneh to make a written complaint. Kenneh’s written complaint stated Johnson had been very verbally inappropriate with her and identified three specific incidents of harassment, including the desk-repair incident, Johnson’s statement that he eats women, and that Johnson followed her to the gas station. Homeward Bound placed Johnson on paid leave pending an investigation. Human Resources personnel interviewed Kenneh and Johnson, at which time Kenneh also reported their first conversation about her hair. Johnson denied that each incident happened as alleged by Kenneh. On April 11, the Director of Human Resources met with Kenneh and informed her that the investigation was inconclusive. She assured Kenneh that Johnson would receive 6 additional sexual harassment training and would be instructed not to be alone with Kenneh. The Director sent Kenneh a letter the following week repeating what they had discussed. Neither Kenneh’s complaint nor Homeward Bound’s investigation stopped Johnson’s behavior. Instead, Johnson stopped by Kenneh’s office more frequently, blocking her door with his body. Whenever Johnson would see Kenneh, he would gesture with his tongue, simulating oral sex. He continued to call her “sexy,” “pretty,” or “beautiful” every time that he saw her, despite Kenneh’s requests for him to stop. Kenneh tried to ignore Johnson but he would stand in her doorway, watching her. When she turned toward the door and made eye contact with him, he simulated oral sex with his tongue. Kenneh complained to her supervisor about Johnson’s ongoing behavior on two more occasions to no avail. On June 1, Kenneh arrived late to work and was unprepared for a meeting. When her supervisor spoke with her about her attendance, Kenneh replied that she did not want to come to work because of Johnson. On June 29, Kenneh asked her supervisor if she could return to a flex-schedule position that would allow her to avoid interactions with Johnson. Homeward Bound denied her request for a transfer and terminated her employment. Kenneh brought an action against Homeward Bound, claiming violations of the Minnesota Human Rights Act, including a claim for sexual harassment. 1 Kenneh alleged 1 Kenneh also alleged that Homeward Bound had terminated her position in retaliation for her complaint to Human Resources. The district court granted summary judgment to Homeward Bound on the retaliation claim, concluding that Kenneh failed to establish a causal connection between her complaint and any adverse employment action. The court of appeals affirmed. Kenneh v. Homeward Bound, Inc., No. A18-0174, 7 that Johnson’s conduct created a hostile work environment. The district court granted summary judgment to Homeward Bound. Stressing “the high bar” that courts have set for sexual harassment claims based on a hostile work environment, the district court reluctantly determined that the conduct alleged did not meet the severe-or-pervasive standard for actionable sexual harassment. The district court found that “[s]ome of the conduct was boorish and obnoxious” and that the statement, “I will eat you. I eat women,” was “both objectively and subjectively unacceptable.” Nonetheless, the district court determined that the conduct, “however objectionable, does not constitute pervasive, hostile conduct that changes the terms of employment and exposes an employer to liability under the Minnesota Human Rights Act.”



Court’s Reasoning


  1. Unlike federal law, Minnesota law specifically defines sexual harassment by statute. That definition includes unwelcome sexual advances or communication of a sexual nature when that conduct or communication has the purposes effect of substantially interfering with an individual’s employment or creating an intimidating, hostile, or offensive employment environment.
  2. Plaintiff has not presented the court with a compelling reason to abandon the severe or pervasive standard because that standard reflects a common sense understanding that when it comes to altering the conditions of employment and creating an abusive working environment, the sexual harassment must be more than minor. That is, the work environment must be both objectively and subjectively offensive in that a reasonable person would find the environment hostile or abusive and the victim in fact perceived it to be so.
  3. Severe or pervasive framework decisions from title VII does not mean that conclusions drawn by those courts are mandatory on Minnesota courts with respect to Minnesota statutes.
  4. For the severe or pervasive standard to remain useful Minnesota, the standard must evolve to reflect changes in societal attitude towards what is acceptable behavior in the workplace.
  5. Some 30 years ago, the Minnesota Supreme Court said that the essence of the Human Rights Act is societal change and the redress of individual injury caused by discrimination as a means of achieving that goal.
  6. Today, reasonable people would likely not tolerate the type of workplace behavior courts previously brushed aside as an unsuccessful pursuit of the relationship.
  7. One of the avowed public policies of the Minnesota Human Rights Act is to foster the employment of all individuals in the state in accordance with their fullest capacities. In a hostile work environment, no employee can thrive.
  8. Determining whether actionable sex discrimination exists in a given case, means examining all the circumstances around the conduct alleged to constitute sexual harassment.
  9. Court should not carve the work environment into a series of discrete incidents and then measure the harm occurring in each episode. Instead, courts and juries- the factfinders- must consider the totality of the circumstances. The totality of the circumstances includes: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.
  10. Each case in Minnesota state court has to be considered on its facts and not on a purportedly analogized federal decision.
  11. A single severe incident can support a claim for relief.
  12. Pervasive incidents that may not be actionable when considered in isolation may yet produce an objectively hostile environment when considered as a whole.
  13. Course are cautioned against usurping the role of the jury when evaluating a claim on summary judgment. That is, summary judgment is a blunt instrument inappropriate when reasonable persons might draw different conclusions from the evidence presented.
  14. Whether the alleged harassment was sufficiently severe or pervasive so as to create a hostile work environment, is generally a question of fact for the jury.
  15. In order to remove such a question of fact from the jury on summary judgment, the court would have to determine that no reasonable jury could find the conduct at issue was severe or pervasive. If a reasonable person can find the alleged behavior objectively abusive or offensive, that claim survives summary judgment.
  16. On summary judgment, a court must accept the incidents as stated by the person not moving for summary judgment.
  17. Weighing the evidence in assessing credibility on summary judgment is error.





  1. Minnesota has thrown down a marker that it will not just slavishly follow title VII hostile work environment decisions.
  2. Minnesota has also said that they will not be a prisoner to history when it comes to hostile work environment claims because values of society change over time. What is a hostile work environment today is likely not the hostile work environment 30 years ago.
  3. The decision could have an impact on the statute of limitations because the Minnesota Supreme Court says that the totality of the circumstances must be considered and not each specific episode on its own. So, an argument is created that hostile work environment claims are continuing violation claims. As such, that could have a big impact on when the statute of limitations starts to run for these types of claims in Minnesota.
  4. I constantly read all kinds of cases involving summary judgments. In the world of federal litigation, summary judgment motion by the defense are automatic. Some courts seem to use summary judgment as a screening out tool to make sure that only cases a plaintiff has a good chance of winning get to the jury. The Minnesota Supreme Court is having none of it. That is in Minnesota, no reasonable jury would have to be able to find that the conduct was severe or pervasive in order for the “blunt tool,” of summary judgment to be granted by a court. In today’s world, that is a very high bar. The Minnesota Supreme Court also said that weighing the evidence in assessing credibility on summary judgment is error. Weighing the evidence in assessing credibility on summary judgment is something many courts often do. In Minnesota, they won’t allow that anymore. One wonders if the success of summary judgment motions in Minnesota by the defense regardless of the type of case, will now go down after this decision.
  5. The Minnesota Supreme Court also said that for purposes of summary judgment one has to look at what is being said by the party not moving for summary judgment and not the party moving for summary judgment.
  6. One wonders whether other states will find what the Minnesota Supreme Court says about how to look at hostile work environment claims persuasive. The timing in light of what is going on today is certainly right. It may take longer for federal courts to be persuaded considering how federal judges are appointed.
  7. You see in the case law how if a reasonable jury cannot find severe or persuasive conduct, summary judgment can be granted. However, the Minnesota Supreme Court specifically uses the term, “no reasonable jury.” It also mentioned that summary judgment motions are a, “blunt tool.” Finally, the Minnesota Supreme Court says in this decision that hostile work environment claims must be viewed through today’s lens. Accordingly, meeting the summary judgment standard in Minnesota has probably just gotten a lot more difficult especially in light of the heightened sensitivity of the world of today.
  8. Justice McKieg, who wrote the decision, is the first Native American woman on the Minnesota Supreme Court.
  9. The decision was unanimous.
  10. I am not a licensed attorney in Minnesota, though I am in Georgia, Texas, and Illinois.

I have big news to share. I have been frustrated with my blog/website set up for some time. On Friday, I will be moving all of that into one site onto the lexblog platform. So, starting at around five Eastern time on Friday and perhaps continuing through the weekend accessing my blog may be spotty. Everything that has been on the blog for the last nine years will carry over to the new site. Also, everything will be redirected to the new site. I think everyone will be really impressed by the new site. No content from the last eight years will be lost. Lexblog is a blog aggregator and they have a separate division that deals with setting up attorney blogs and websites. I am very excited, and I think everyone here will be too. Just bear with me on Friday afternoon and perhaps through the weekend.

Looking forward to continuing with Understanding the ADA on our new platform.

Before getting started on the blog entry of the day, yesterday was the 30th anniversary of the ADA. Happy anniversary!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!


One of the things that comes up is why is the ADA such a good idea if hiring people with disabilities has remained static over the years. My response to that question is twofold. First, the ADA is more than just employment. It also includes accessing nonfederal governmental entities (title II) and accessing places of public accommodations (title III). It has another title dealing with telecommunications (title IV). Finally, it protects against retaliation and interference (title V). With respect to employment, I am convinced that one of the reasons why employment of people with disabilities has remained static is because companies simply do not understand the calculations a person with a disability goes through in deciding whether to seek accommodations. Companies also are not using best practices. I discussed all of that on the Federal Bar Association blog last week, which can be found here.


Today’s blog entry was a real challenge to come up with. I debated strongly between a review of Justice Gorsuch’s book, A Republic If You Can Keep It, and a recent case from the Seventh Circuit dealing with the burden of proof when it comes to figuring out whether someone is qualified to do the essential functions of a job. If it was any other week besides the anniversary of the ADA happening yesterday, I would have opted for the book review. However, since it is the day after the 30th anniversary of the ADA, I felt I had to do something related to the ADA. I will say that I figured out a way to bring Justice Gorsuch’s book into the blog entry as well.


Our case of the day is Kotaska v. Federal Express Corporation decided by the Seventh Circuit on July 17, 2020, which can be found here. That the decision went against the person with the disability does not surprise me. What is really interesting about the decision is a vigorous dissent was filed. As usual, the blog entry is divided into categories and they are: facts; majority opinion (Judge St. Eve); dissenting opinion (Judge Hamilton); and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.




Federal Express fired the plaintiff twice from her courier job because she could not lift up to 75 pounds. First time she was limited to lifting only 60 pounds after a shoulder injury. Eventually, her condition improved so that she could lift 75 pounds to her waist. Within three weeks, Federal Express discovered her capabilities above the waist remain severely limited and dismissed her again. Plaintiff brought suit alleging the second dismissal was in violation of the ADA. The job description said that each handler or courier was expected to lift a package weighing up to 75 pounds but did not describe how high a person must lift those packages. The District Court granted summary judgment for Federal Express and plaintiff appealed.



Majority Opinion (Judge St. Eve)

  1. At summary judgment, the plaintiff has the burden to provide evidence that a rational jury could find her to be a qualified individual.
  2. Whether a function of the job is an essential one is a question of fact and not law.
  3. A court is obligated to consider the employer’s judgment and to consider a job description of evidence of the job’s essential functions, but the employer’s judgment is not absolute. Other factors include: the amount of time spent on a function; the experience of those who previously or currently hold the position; and the consequences of not requiring the employee to perform the function.
  4. The parties agree that lifting packages, including above the waist and shoulders, is an essential function of a handler.
  5. A rational jury could find that the essential functions of a handler do not include lifting a 75 pound package overhead.
  6. To be a qualified individual, an employee if he or she is unable to perform a given function, must show that there is a dispute whether that function is essential.
  7. Federal Express consistently asserted that its handlers need to lift packages weighing up to 75 pounds over the waist and overhead, which plaintiff cannot do.
  8. Plaintiff has the burden of persuasion on the question of whether he is a qualified individual.
  9. It is the plaintiff’s burden to provide evidence (emphasis added), to persuade a rational factfinder that she can perform the job’s essential functions.
  10. A reasonable factfinder simply could not find that the plaintiff could lift up to 75 pounds above her waist if needed. Considering plaintiff’s height, 5’2”, many packages would have to be lifted above her waist and shoulders.
  11. The ADA does not obligate an employer to let its employees exceed their doctor’s restrictions even if the employee thinks he or she can.
  12. The capacity to respond to rare events can still be an essential function of the job.
  13. A person on the job for just three weeks cannot be said to have established a sufficient amount of time to to find him or her to be a qualified individual. What is a sufficient amount of time will vary from case to case.
  14. With respect to retaliation, close timing of the adverse action alone is rarely enough to raise a viable claim of retaliation. That is, there has to be other circumstantial evidence of retaliation. That plaintiff’s restrictions had not changed enough since the first dismissal was the non-retaliatory reason for the second dismissal.



Dissenting Opinion (Judge Hamilton)

  1. Federal Express conceded on appeal that its stated reason for firing the plaintiff, an inability to lift 75 pounds over her waist and even overhead, was wrong. Such heavy overhead lifting is not required.
  2. The majority opinion flipped the burden of production on essential functions to the plaintiff from the defendant.
  3. Judge Hamilton has not seen an ADA case before where the employer did not come forward with evidence needed to establish the essential functions of the job, but the majority opinion holds the absence of that evidence against the plaintiff.
  4. It is well established that the employee bears the ultimate burden of proving that he or she is capable of doing the essential functions of the job with or without reasonable accommodation. However, the employee should not bear the burden of producing evidence of what the essential functions are because that information is most readily available to the employer and not to the employee. Accordingly, the ninth, eighth, first, and sixth Circuits all have held that once an individual with a disability contends that a function is nonessential, the burden shifts to the employer to prove that it is an essential function of the job. Implicit in these cases is the expectation that the employer will meet the burden of what the essential functions of the job are by producing evidence.
  5. If the proper burden of proof is followed in this case, plaintiff refuted the employer’s version of the essential functions and presented evidence that she could do the job.
  6. The majority’s focus on up to 75 pounds allows an employer to not have to define essential functions of the job with any specificity. Instead, the employer can state the function at the highest level of generality and leave the plaintiff with the burden of establishing the specifics of the job for she then has to show that she can do it. If that is the case, the burden of production become trivial. Evidence about essential functions must provide meaningful and specific guidance about what the job entails. Otherwise, an employer’s description of the essential functions of the job provides no useful guidance.
  7. Giving the shelving and packaging containers that handler’s work with, Federal Express should have had to present evidence of how much weight handler’s must lift above their waist, above the shoulders, and above their heads.
  8. Discredited evidence should not be sufficient to shift the burden of proof to the plaintiff come forward with evidence of the real details of the job’s essential functions.
  9. While it is true that under the ADA an employer’s job description or other assertions are entitled to substantial but not conclusive weight in identifying a job’s essential function, employers must also describe the essential functions with enough specificity to tell the employee and the courts what the job entails.
  10. The employer’s description of the job functions must surely be at least plausible and not be vague and unbelievable assertions like the ones abandoned by Federal Express in this case.
  11. It is so obviously appropriate for the employer to carry the burden of production when it come to the essential functions of the job.
  12. To combat Federal Express’s strategy employed in this case, future plaintiff can protect themselves by insisting in discovery at the very outset of the case that the employer specify in detail the essential functions of the relevant job and then support those claims with evidence. An employer who has fired someone or denied an employment application for inability to perform essential functions should be able to answer such an interrogatory immediately.
  13. The evidence supports an inference that Federal Express’s managers were not honest in dealing with the plaintiff’s abilities in 2015.
  14. The evidence certainly supports an inference that the manager bungled the case. At best, Federal Express was confused about how the job was actually done and what abilities it actually requires. It is only by departing from summary judgment standards, speculating in favor of the defendants, and discounting evidence from the plaintiff and her coworkers that one could find that Federal Express had a legitimate basis for firing the plaintiff.
  15. It is not the province of the District Court to propose its own set of essential functions not offered by Federal Express.
  16. If the relevant frequency and weight information is material to deciding essential functions, then Federal Express had the burden of producing it. It is improper, impractical, and unfair to require the employee to describe in minute statistical detail the operations of an employer.
  17. Presumptions shifting the burden of proof are often created to reflect judicial evaluations of probabilities and to conform with the party’s superior access to the proof.
  18. When a party files a motion for summary judgment raising ground A, the District Court erred by granting on ground B, which the moving party could have raised but did not.
  19. Federal civil motion practice is expensive and burdensome enough when the party opposing a motion needs to respond to the moving party’s actual arguments. That should not be expanded to offering evidence to rebut any arguments the moving party might have made.
  20. The majority opinion is correct that evidence that might be used to prove that the job required lifting 75 pound overhead could also be used to show that the plaintiff had to lift some lower amount overhead. However, Federal Express made no such argument to the District Court.
  21. The majority opinion also erred by drawing inferences in favor of Federal Express rather than the plaintiff, which is improper on a defense motion for summary judgment.
  22. The logic of the majority opinion suggests that an employer can establish that an employee is not a qualified individual by showing that an individual with a disability works within her limits rather than beyond them and that is perverse. Under this logic, an employee who can do the job and has done the job could be removed based upon mere speculation. The ADA was enacted in large part to prevent discrimination against people with disabilities who can actually do their job.
  23. The majority’s speculation that plaintiff would encounter a package is too heavy for her is contradicted by the evidence from the plaintiff and her coworkers and supervisors that she was handling the job successfully.
  24. Evidence about how jobs are actually performed is sufficient to create a genuine dispute of fact.
  25. Federal Express offered no evidence to the effect that the job varies so much that three weeks are not a reasonable test of the ability to do the work. The majority’s speculation to the contrary is no substitute for such evidence.
  26. The plaintiff offered evidence that the Federal Express decision-makers not only knew about her earlier protected activity but took the entire episode into account in deciding what to do with her the second time around. When that is combined with federal Federal Express’s hasty, confused, and even dishonest decision to fire her without actually reviewing her new medical restrictions without even talking with plaintiff or supervisors, a jury could easily find a retaliatory motive.




  1. The majority opinion when it talks about the burden of production and the burden of persuasion is very confusing. On the one hand, in the text of the opinion it clearly talks about how the burden of production about essential functions of the job are on the employee. On the other hand, in a footnote it seemed to cite with approval a decision saying that the burden of production for essential functions is on the employer and the employee has the burden of persuasion. Reading the text of the opinion one can understand how Judge Hamilton was of the strong opinion that the majority opinion had shifted the burden of production when it comes to essential functions.
  2. Part of the dissenting opinion almost seems to be written with Justice Gorsuch in mind. If you read his book, A Republic If You Can Keep It, he is no fan of how complicated the civil discovery system has come to be. He might be very sympathetic to the argument about how a plaintiff should not be penalized for an employer’s shifting litigation positions. He certainly, as discussed below, would be very receptive to claims that a judge came up with a theory of a decision that was not based upon any of the arguments made by either party.
  3. Three weeks not being long enough to establish whether a person is qualified to do a job per the ADA is extremely problematic. It simply should not matter how long a person is in the job, especially if the plaintiff can with testimony and other evidence show how that job is done. Assuming an employer has 15 or more employees, the ADA applies the minute that person starts a job.
  4. I am not sure I would be terribly optimistic about an en banc review by the Seventh Circuit, though it might be worth a try.
  5. People with disabilities have not done well at all at the Supreme Court with respect to employment matters. So normally I would say if you are a person with disability, you do not want to bring an employment claim to the United States Supreme Court. However, the dissenting opinion is very interesting. As mentioned above, there are a couple of aspects of that dissenting opinion that could appeal to Justice Gorsuch (in the prologue to one of his chapters in the book, he also states that he is a big believer in equality for all). Also, while Justice Roberts has often been termed a corporatist, he also has demonstrated sensitivity to people with disabilities. While the majority opinion is a bit confusing with respect to whether it is changing the burden of production, the plain reading of its text suggests that it did. If so, that creates a Circuit Court split.
  6. If the Democrats sweep the House, Senate, and the Presidency in November, might you see legislation specifying what the burden of proof is with respect to essential functions of the job?
  7. One of the mistakes made by Federal Express here is focusing on a task rather than on functions. The function of the job is moving packages safely from the truck to wherever the package is getting delivered. How the person accomplishes that isn’t the point. On the employer’s side, it would be wise to keep in mind that tasks are not the same as function if you don’t want to run into unnecessary litigation.
  8. Judge Hamilton flat out tells plaintiff’s attorneys that whenever dealing with essential functions of the job, they need to have an interrogatory pinning down the employer, complete with supporting evidence, as to what the essential functions of the job are.
  9. Another aspect of the dissenting opinion that might appeal to Justice Gorsuch is how the majority opinion takes a broad view of its discretion when it comes to deciding summary judgment motions. Justice Gorsuch is a big fan of jury trials and is not at all happy with summary judgment practice. From reading his book, I don’t believe he would say that the role of the judge is to screen out cases by the summary judgment motion. Instead, you have to be looking at whether a genuine issue of material fact exists. Also, he does specifically say in his book that it is not up to the judge to come up with his or her own arguments one way or the other as to why a particular party will prevail. Judges in his opinion are limited to what the parties argue.
  10. The rational jury standard varies quite a bit in its application from judge to judge and from Circuit to Circuit.
  11. Essential functions of the job are a question of fact and not law. Of course, that doesn’t answer the question of where is the burden of production for determining essential functions of the job.
  12. Always a good idea to engage in the interactive process before termination and be sure to get it right at discussed here.

Before starting our blog entry, two lions of the civil rights movement passed away on the same day recently. C.T. Vivian and John Lewis. John Lewis happened to be the person who represented me in the U.S. Congress. Georgia Democrats have selected the Georgia state Democratic Party chair, GA State Sen., Nikema Williams, as his replacement. A special election has to be held to finish out the term. There is talk that the special election will be held in November. Georgia has a jungle primary system, which means that if no one gets 50% +1 than a runoff would have to be held in January. Since January would be the runoff date and a new Congress gets sworn in in January, our district could theoretically be without representation until January of next year. It is also quite possible, perhaps even likely, that the person nominated to replace Jon Lewis wins the special election outright. It is one of the most Democratic districts in the entire nation. So, very unlikely that the Republican, a person pardoned by President Trump, has any kind of a shot at all.


Also, July 26 is the 30th anniversary of the ADA. Happy anniversary! So many people to thank. Certainly, you have to give a shout out to President George H.W. Bush for signing the ADA and to President George W. Bush for signing the ADA Amendments Act.


I know people often say that the ADA hasn’t changed much for people with disabilities with respect to getting people with disabilities hired and perhaps even retained. An article that I just published in the Federal Bar Association blog hopes to move that forward. That article can be found here.


Today’s blog entry is going to be a short one. It is a case that comes down from the Seventh Circuit decided on July 16, 2020. One of the few cases from the Seventh Circuit that I have seen recently actually go the way of a person with a disability. The case is McCray v. Wilkie. It discusses the question of whether a delay in providing a reasonable accommodation can be a violation of the ADA and how you might decide when such a violation exists.  Depending on the side of the aisle you are on, you would be surprised how often this happens. It is especially a problem when it happens at a college or university side because the semesters go so fast. It’s also a problem on the employment side because obviously a person with a disability cannot get to the same starting line to demonstrate what he or she can do. The more time that goes by the worse things get. Since this lawsuit involved a federal employee, the ADA was on one level not involved at all. However, §501 of the Rehabilitation Act specifically says that title 1 of the ADA are the rules that must be used in deciding whether disability discrimination against federal employees has occurred. So even though this is a Rehabilitation Act case, it is equally transferable to the ADA. Here are the critical points from the decision:


  1. An unreasonable delay in providing accommodation for an employee’s known disability can amount to a failure to accommodate his disability in violation of the Rehabilitation Act of 1973.
  2. Whether a particular delay qualifies as unreasonable is based upon the totality of the circumstances.
  3. Factors to consider in deciding whether a particular delay is unreasonable include but are not limited to: 1) employer’s good faith in attempting to accommodate the disability; 2) the length of the delay; 3) the reason for delay; 4) the nature, complexity, and burden of the accommodation requested; and 5) whether the employer offered alternative accommodations.



  1. We now have a decision from a U.S. Court of Appeals talking about how to figure out when a delay is unreasonable. It also stands for the proposition that an unreasonable delay of accommodations is actionable under the ADA.
  2. The court specifically uses language that the factors to consider listed are not exclusive.
  3. Remember, magic words are not required.
  4. Always engage in the interactive process and do it right. With respect to doing the interactive process right, we discussed that here.

Today’s blog entry is a two-for-one dealing with the fact that definitional terms still matter even after the amendments to the ADA. In the first case, Colton v. Fehrer Auto, North America, LLC, we revisit the question of whether being short is a disability without more. In the second case, Darby v. Childvine, Inc., we look at the question of whether a person with BRCA1 gene who undergo a preventive surgery to prevent breast cancer is a person with a disability. As usual, the blog is divided into categories and they are: Colton facts; Colton reasoning physical or mental impairment; Colton reasoning retaliation; Darby facts; Darby reasoning; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.



Colton Facts


A temporary work agency assigned the plaintiff to work at the defendant’s plan in Gaston Alabama. When she arrived for work, the employer put her on the assembly, which with the only position available. Plaintiff is 4’6” tall and that limits her reach. Her limited REIT caused immediate problems with her ability to perform the job she was assigned. She then asked her training coordinator to either accommodate her short stature to move her to a different position within the plant. When the training coordinator refused, he made the same request to the on-site human resources representative, who also refused. Not only did the HR representative refuse, he made the determination that the plaintiff would not a good fit and terminated her employment and noted in her personnel file that she would not be rehired. She filed with the EEOC, received the right to sue, and brought suit.



Colton Reasoning Physical or Mental Impairment


  1. Congress did not define the term physical or mental impairment within the statutory text of the ADA.
  2. The EEOC at 29 C.F.R. §1630.2(h)(1) define the physical impairment as a physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, humic, lymphatic, skin, and endocrine.
  3. The EEOC regulation on physical or mental impairment gets Chevron deference.
  4. Read plainly, the EEOC requires some type of disorder or pathology of the body that affects one or more body systems. Plaintiff fails to satisfy that definition because she did not allege that her height is due to any disorder or pathology.
  5. Plaintiff’s height without the allegation that her height is due to any disorder or pathology is properly viewed as a physical characteristic. The ADA, citing to Sutton v. United Airlines, Inc., does not elevate physical characteristic to the status of a disability unless the characteristic results from a physiological disorder.
  6. While the amendments to the ADA to broaden the scope of the phrase “substantially limits one or more major life activities, the amendments did not alter the phrase, “physical or mental impairment.” So, a person still must have a physical or mental impairment in order to be a person with a disability under the ADA.
  7. Similarly, the regarded as claim fails because plaintiff cannot show the employer perceived a physical or mental impairment. In fact, emails indicated the employer perceived her short stature to be a safety and ergonomic issue and not a question of a disability.


Colton Reasoning Retaliation


  1. The ADA prohibits retaliation.
  2. There are two kinds of retaliation. They are participation and opposition.
  3. With respect to participation, that prohibits an employer from discriminating against an individual because the individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing. Complaints made internally to the HR department are not protected under participation retaliation.
  4. With respect to opposition, that prohibits employers from retaliating against an employee who has opposed any act or practice made unlawful by the ADA. For a person to enjoy protection under the opposition clause, that opposition must be reasonable. That is, the employee must reasonably believe that the act or practice she is opposing violates the ADA.
  5. Reasonable belief with respect to the opposition clause requires that the employee act in good faith and that her belief be objectively reasonable given the existing law. Here, while the plaintiff may have believed in good faith that her height was a disability, the law is very clear that height by itself without an underlying physiological condition associated with it is not a disability.



Darby Facts


Childvine hired Darby as an administrative assistant at its day care facility in Springboro, Ohio. Not long into her tenure, Darby made a request for time off to deal with a health issue. Darby says she notified her supervisor, Tyler Mayhugh, a director at Childvine, that she had recently been diagnosed with breast cancer, and that she was scheduled for a double mastectomy later that month. According to Darby, Mayhugh balked at the idea, expressing doubt about whether Childvine would allow Darby to remain employed when her surgery date fell within her 90-day probationary period. Mayhugh asked Darby to delay the surgery. Afraid of losing her job, Darby agreed to move the procedure to the day after her probationary period expired. Doing so apparently did not satisfy Mayhugh or Samantha Doczy, Childvine’s co-owner. When told of the new date, the two allegedly “harassed” Darby about the length of her leave request. Doczy later approved Darby’s request to use her vacation and sick time to recover from the procedure. When Darby contacted Mayhugh in late October, following her surgery, about returning to work in early November, Darby was told to bring a medical release. Yet when Darby returned to work, release in hand, Mayhugh explained that Childvine had already sent Darby a letter informing her of her termination. The letter, which Darby received days later, stated that her employment was terminated effective October 24th, the last day of her probationary period. The reasons listed for Darby’s termination included an “unpleasant” attitude, dress code violations, and “being unable to work.” Darby filed suit alleging that Childvine violated her rights under the ADA, and that the company along with Mayhugh and Doczy (collectively, “Childvine”) violated her rights under Ohio law. Viewing plaintiff’s genetic mutation as the absence of cancer and noting that the definition of physical impairment does not include a condition that might lead to breast cancer in the future, the District Court granted the employer’s motion and dismissed the case. Plaintiff appealed.



Darby’s Reasoning


  1. To prove up a case of disability discrimination, the plaintiff has to show: 1) she is a person with a disability; 2) she is qualified to perform her job requirements with or without reasonable accommodations; and 3) she would not have been discharged but for the disability.
  2. Whether a person has a physical or mental impairment is not a demanding standard. While it is a threshold issue, it is not an onerous burden for those seeking to prove discrimination under the ADA.
  3. Whether a person is substantially limited is defined in relation to a person’s ability to perform a major life activity as compared to most people in the general population, 29 C.F.R. §1630.2(j)(1)(ii).
  4. The amendments to the ADA and their final implementing regulations, 42 U.S.C. §12102(2)(B) and 29 C.F.R. §1630.2(i)(1)(ii) respectively, added the operation of a major bodily function, including normal cell growth to the list of major life activities.
  5. Plaintiff plausibly alleged that her impairment substantially limited her normal cell growth as compared to the general population due to both the genetic mutation that limits her normal cell growth and a medical diagnosis of abnormal epithelial cell growth serious enough to warrant a double mastectomy.
  6. Plaintiff’s complaint as amended alleged both a genetic mutation limiting normal cell growth and the growth of abnormal cells. She also alleged that her condition was serious enough to warrant an invasive corrective procedure. So, it is certainly plausible that plaintiff is substantially limited in normal cell growth as compared to the general population.
  7. The ADA’s implementing regulations, 29 C.F.R. §1630.2(j)(3)(iii), cites cancer as a condition that at a minimum qualifies as an impairment substantially limiting a major life activity. That language is a floor and not a ceiling. So, plaintiff’s gene mutation and abnormal cell growth even though not cancerous qualifies as a disability under the ADA.
  8. Expert medical testimony may help reveal whether plaintiff’s condition substantially limits normal cell growth or whether something else is involved.
  9. Whether a diagnosis of HIV is equivalent to a diagnosis of someone possessing the BRCA1 gene and therefore a disability automatically, is a fair debate. Nevertheless, plaintiff survives a motion to dismiss.
  10. Genetic mutation merely predisposing an individual to other conditions, such a cancer, is not itself a disability under the ADA. However, plaintiff has alleged more than just a genetic mutation.
  11. While plaintiff’s factual allegation are sufficient to survive a motion to dismiss, far more will be required to survive summary judgment.
  12. Issues not decided by this appeal include: 1) whether plaintiff’s condition in fact falls under the ADA’s definition of a disability; 2) does plaintiff’s precancerous cells constitute a substantial limitation on her normal cell growth; and 3) whether plaintiff’s precancerous cells were caused by plaintiff’s genetic mutation. All of that necessitates discovery.
  13. Since the District Court did not decide the Ohio law claim because of its dismissal of the federal claim, District Court on remand will have to deal with that issue.




  1. While the amendments did make things a lot easier for persons with disabilities to have the merits of their claim addressed, there are still definitional hurdles to be dealt with. One of those hurdles is whether the person has a physical or mental impairment. Usually but not always, that question is straightforward.
  2. A physical characteristic without more is not the same as a physical or mental impairment as defined by the ADA.
  3. Even for regarded as claims, a plaintiff still has to show that the defendant perceived a physical or mental impairment.
  4. Colton does a nice job of discussing in an easily understandable way the two different kinds of retaliation.
  5. While a physical or mental impairment is not a demanding standard, sometimes expert testimony is necessary.
  6. The amendments to the ADA dramatically changed what is a major life activity.
  7. Possibility exists that BRCA1 genetic mutation might be an automatic disability like HIV.
  8. For now, a person with a genetic mutation wanting to be covered under the ADA must allege more than just the genetic mutation in order to be protected under the ADA.
  9. Sutton has not been overruled entirely by the amendments. For example, its discussion of physical characteristics still applies. Also, its discussion of working as a major life activity also still applies, which is the reason why a plaintiff’s attorney should never allege working as a major life activity now that the amendments to the ADA have broadened what is a major life activity.

Today’s blog entry come from a decision of the Iowa Supreme Court on June 30, 2020. The result of this decision means that if you are in the State of Iowa, living in a multifamily complex or dormitory, and want an emotional support animal, you most probably are not going to be able to get one because the chances are someone will already be living in the complex that signed up to live in the complex intentionally because the complex had a no pets rule.


The case is Cohen v. Clark decided by the Iowa Supreme Court on June 30, 2020, which can be found here. As usual, the blog entry is divided into categories and they are: facts; majority reasoning; Justice Appel’s dissent; Justice McDonald’s dissent; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.





A tenant with pet allergies moved into an apartment building due to its no pet policy. She was severely allergic to cats necessitating her carrying an EpiPen for that situation. She was also allergic to dogs but to a lesser extent. She intentionally selected an apartment complex that did not allow for pets. The lease she signed did say that the landlord would make reasonable accommodations for those seeking emotional support animals or service animals. Subsequent to her moving in, another tenant petitioned the landlord for an emotional support animal, a dog. When that happened, the landlord sought out the advice of the Iowa Commission on Civil Rights to find out what it should do. The Iowa Civil Rights Commission staff informally advised the landlord that moving the tenants seeking an ESA to another building was not a reasonable accommodation and that the landlord had to try and reasonably accommodate the tenant’s allergies and the other tenant’s request for an emotional support animal. The landlord then sent out a letter to tenants asking if anyone had an allergy to the dog. When the plaintiff responded in the affirmative, the landlord granted the emotional support animal and also tried to mitigate the plaintiff’s allergies by having the tenants use separate assigned stairwells. The landlord also purchased an air purifier for the plaintiff’s apartment in order to minimize her exposure to pet dander inside the apartment. The landlord looked into installing airlock doors on each of the four floors of the apartment building to reduce the amount of air infiltration but ultimately decided it was not financially feasible because the cost of doing that was $81,715.92. The year-long effort to accommodate the plaintiff was insufficient to prevent her from having allergic reactions, and so she had to limit the amount of time she spent in the apartment building. Her allergic reaction was significant and she had to take multiple allergy medicine in addition to her daily allergy medication, including Benadryl every night, nasal spray, and twice a day nasal rinses.


On September 27, 2007, plaintiff brought a small claims action against the landlord and the tenant with the emotional support animal seeking one month’s rent and damages. Plaintiff alleged that the landlord breached the express covenant of the lease that provided for no pets and the implied warranty of quiet enjoyment by allowing the other tenant to have a dog on the premises as an emotional support animal. Plaintiff also alleged that the other tenant by having the emotional support animal violated her quiet enjoyment of her unit under Iowa state law. The landlord asserted as a defense that it had to reasonably accommodate the other tenant’s emotional support animal under Iowa state law and cross claimed for indemnification from the other tenant for any damage to the plaintiff. The Small Claims Court dismissed plaintiff’s case and it was appealed to the District Court. The District Court dismissed the claims of plaintiff saying that at the time the development took place the law was not clear. It also said that after a year of trying to accommodate the tenant with the emotional support animal, the landlord should have denied the request. Plaintiff appealed to the Supreme Court for discretionary review which was granted.



Reasoning of Majority in Reversing the Dismissal


  1. The Iowa Civil Rights Act housing provision is nearly identical to the federal Fair Housing Act.
  2. The Iowa Civil Rights Act and the Fair Housing Act distinguish between service animals, which require specific training, and emotional support animals while recognizing the validity of both kinds.
  3. Under 216.8A(3)(b) of the Iowa Civil Rights Act it is unlawful to discriminate against another person in the terms, conditions, or privileges of rental of a dwelling because of that person’s disability. §216.8A(3)(c)(2) states the refusal to make reasonable accommodations and rules, policy practices, or services, when the accommodations are necessary to afford the person equal opportunity to use and enjoy a dwelling constitutes unlawful discrimination. Finally, the Iowa statute, §216.8A(3)(e), provides landlords with a safe harbor in refusing a tenant’s request for an accommodation if the tenancy would constitute a direct threat to the health or safety of other persons or would result in substantial physical damage to the property of others.
  4. Under state and federal law, the landlord must generally grant a reasonable accommodation request for an emotional support animal if the person requesting the accommodation has a disability and a disability -related need for the emotional support animal.
  5. The latest HUD circular, which we discussed here, as well as the Iowa Civil Rights Act both allow a landlord to refuse a reasonable accommodation for an assistance animal if the specific animal poses a direct threat that cannot be eliminated or reduced to an acceptable level through actions the individual takes to maintain or control the animal.
  6. The tenant requesting an emotional support animal has a psychological disability substantially limiting one or more major life activities.
  7. The plaintiff and the tenant with the emotional support animal cannot satisfactorily coexist in the same apartment building.
  8. No law in Iowa or any other jurisdiction clearly establishes how landlords should handle reasonable accommodation questions with emotional support animals.
  9. The physical well-being of a person does not trump the right to mental well-being and vice versa. So, other tenants rights are properly considered in the balancing the needs in the reasonable accommodation analysis.
  10. Where the physical or mental well-being of tenants collide, a priority in time test should be applied as a factor in the reasonableness analysis. That is, first in time is first in right.
  11. The first in time is first in right approach is backed up by the ADA cases talking about how a person in a seniority system who is no longer qualified for a current job does not have the right to bump others for a job that they are qualified for.
  12. Other courts have rejected changes to a residential complex’s contract when those changes interfere with the rights of third parties.
  13. The Fourth Circuit Court of Appeals has held that the potential for personal injury to third parties is a relevant factor in determining whether a person or entity violated the federal Fair Housing Act by rejecting a reasonable accommodation request.
  14. Potential allergic reactions of other tenants to an emotional support animal are a relevant factor in determining whether to grant a tenant’s accommodation request for the emotional support animal. That is, the rights of third parties do not have to be sacrificed on the altar of reasonable accommodation.
  15. Landlords need to explore the ability to grant the accommodation request in good faith before rejecting it.
  16. The priority in time factor can only been considered when the tenant objecting to the accommodation has priority in time and can provide medical documentation supporting the tenant’s objection.
  17. The balancing test may very well be different for a service animal, such as a guide dog, then for an emotional support animal.
  18. The tenant wanting the emotional support animal sought that accommodation one month after his tenancy began. It appears that the landlord could have provided that tenant with an apartment in a different building that did not have a no pets policy or that already had one or more emotional support animals.
  19. Other courts have said that it is a reasonable accommodation for landlords to offer a tenant an apartment in another building when the tenant’s need for an accommodation conflicts with the rights of another tenant.
  20. In a footnote, the court said that the leasing and property manager had testified that he had apartments in other buildings available that would allow pets, but he had been advised by the Iowa Civil Rights Commission that that would not be a reasonable accommodation.
  21. While the tenant wanting the emotional support animal had been in that building for 30 years, he had not demonstrated how that building was related to his disability. As such, the landlord had no obligation to take that into account in attempting to accommodate him.
  22. Good faith is not a defense to a breach of contract claim.
  23. Informal advise from the Iowa Civil Rights Commission is not binding as to what the law is.
  24. Since the landlord granting the emotional support animal was not a reasonable accommodation, that decision breaches the no pets clause in the lease. Further, plaintiff’s suffering from that decision also constitutes a breach of the covenant of quiet enjoyment.
  25. For reasons unknown, the landlord did not raise 562A.21(2) of the Iowa code that would have given the landlord a defense to a claim for damages and injunctive relief if the landlord can show that it exercised due diligence and made an effort to remedy any noncompliance and that the failure by the landlord to remedy that noncompliance was due to circumstances recently beyond the control of the landlord.



Dissenting Opinion of Justice Appel


  1. The landlord in the lease expressly reserved the ability to engage in reasonable accommodations.
  2. Plaintiff and the landlord are joining voices to persuade the court to adopt an approach to reasonable accommodations that is contrary to the informal advice received by the landlord from the Iowa Civil Rights Commission. As such, the landlord neglects to address important issues, such as whether an emotional support animal is a pet.
  3. The Iowa legislature recently enacted 216.8B. §2 of that statute provides the landlord must waive lease restrictions and additional payment normally required for pets on the keeping of animals for the assistance animal or service animal of a person with a disability. That waiver is mandatory and does not contain any express qualifications. That statute, §216.8(B)(4), also provides for criminal liability for a person who interferes with the rights of a person with a disability under that section.
  4. An accommodation is reasonable if it is both efficacious and proportional to the costs to implement it.
  5. Ample authority exists for the proposition that the use of an emotional support animal in a tenant’s housing may be a reasonable accommodation.
  6. Where landlords pursuant to a contract permitting reasonable accommodation to another tenant, allow an emotional support animal as an accommodation that does not constitute a fundamental change of the nature of the complex.
  7. The direct threat defense provision is a safe harbor available to a landlord and does not involve a balancing test.
  8. Little case law exists on whether a landlord must consider the health impact on parties or only the impact on the landlord and the person seeking the reasonable accommodation.
  9. When making a determination of reasonable accommodation, the landlord should consider all relevant interests, including the potential health and third parties. Reasonable accommodations should not be construed to allow landlords to completely ignore health concerns about the renters. Even if health considerations do not rise to a direct and substantial threat, the landlord should consider lesser health risks as part of the determination of whether an accommodation is reasonable.
  10. The tenant that is first in time is not an important consideration. Rather, what might be important is whether a landlord rejecting an accommodation could show that other tenant had substantial reliance interests superior to that of the cotenants seeking accommodation.
  11. Plaintiff knew from the beginning that the landlord might have to make reasonable accommodations for people seeking emotional support animals. So, this is not a situation at all like the employee seeking reasonable accommodations in the context of a seniority system.
  12. The record is clear that the tenant needing the emotional support animal needed the animal because it was necessary as a result of his disability and that he received substantial benefit from the emotional support animal.
  13. No facts were presented that plaintiff’s reaction to the emotional support animal was currently a serious threat to her health.
  14. Run-of-the-mill allergies to dogs does not in and of itself ordinarily override an interest like the other tenant’s need for an emotional support animal in determining whether the accommodation is reasonable. That is, if plaintiff’s allergy was reasonably manageable and she did not have the backdrop of a severe allergy to cats, the tenant needing the emotional support animal would have an interest likely overriding the interests of the plaintiff.
  15. Unclear from the record whether it would have been possible to move the tenant needing an emotional support animal to another building.
  16. When a landlord is faced with a conflict between a person needing an emotional support animal as an accommodation and a person suffering from serious and unmanageable allergy to animals, the landlord must explore the option of providing similar housing in other units owned by the landlord to what was currently enjoyed by either the person seeking accommodation or the person resisting. It is unclear from the record as to whether the other available housing was similar to either the tenant needing the emotional support animal or to the plaintiff. It also isn’t clear whether the possibility of relocation was pursued with either.
  17. Since no prior Iowa case law holds that a landlord must explore potential relocation options when faced with a conflict between tenants as is present in this case, a remand to the District Court for further proceedings is in order.



Dissenting Opinion of Justice McDonald


  1. The majority holding is not supported by the common law and is contrary to the letter and spirit of the fair housing laws.
  2. The Fair Housing Act when it comes to how a person is covered if they have a disability is still using the term “handicapped,” though Justice McDonald refused to use the term because recent disability nondiscrimination laws have clearly moved away from that.
  3. The Fair Housing Act at 42 U.S.C. §3604(f)(3)(B) and 24 C.F.R. §100.204(a), makes it unlawful for housing provided to refuse a person with a disability request for accommodations of rules, policies, practices, or services, when such accommodations are necessary to afford that person equal opportunity to use and enjoy a dwelling.
  4. To trigger a landlord’s duty to provide reasonable accommodations, the person with a disability must first make a request for that accommodation. Then, the landlord does not need to immediately grant the request for an accommodation. Instead, the landlord has an opportunity to make a final decision after conducting a meaningful review to determine whether the Fair Housing Act required the requested accommodation.
  5. A housing provider can deny a requested accommodation on the grounds that there is not a disability related need for the accommodation or on the grounds that the requested accommodation is not reasonable.
  6. Accommodation is not reasonable if it imposes an undue financial and administrative burden on the housing provider or if it fundamentally alters the nature of the provider’s operations.
  7. The landlord is not required to sacrifice the interests of third parties on the altar of reasonable accommodation.
  8. The final decision to grant or refuse a requested accommodation is left with the provider and is not delegable.
  9. Under the Fair Housing Act, if a housing provider denies the requested accommodation wrongfully, then the person with the disability may recover actual and punitive damages plus attorney fees and costs.
  10. The direct threat exception is an affirmative defense.
  11. The Fair Housing Act does not give tenants a cause of action to compel a housing provider to deny a person with a disability request for accommodations or a cause of action seeking damages arising out of the landlord’s decision to grant a person with a disability request for an accommodation. Rather, it only gives a private cause of action to any aggrieved person, which the plaintiff is not. That is, the plaintiff could not claim that she was injured by a discriminatory housing practice nor could she claimed that she would be injured by a discriminatory housing practice about to occur. Accordingly, a tenant in the same building adversely affected by a landlord’s decision to grant a request for accommodation has no cause of action under the Fair Housing Act.
  12. Iowa code 8B(1)(A), just enacted, says that an assistance animal is an animal qualifying as a reasonable accommodation under the Fair Housing Act. That statute says that landlord must waive restrictions on pets when an assistance animal or or service animal is involved. It also imposes criminal liability for interference with the right to use an assistance animal.
  13. Under the fair housing laws, the duty to provide reasonable accommodation does not distinguish between service animals and assistance animals. Therefore, that the animal in this case is an emotional support animal rather than a service animal is immaterial to the outcome of the case.
  14. The parties have not presented an adversarial legal case. Instead, they jointly presented a legislative briefing seeking to change the fair housing laws to take into account the escalating costs to landlords and allergic cotenants due to the increased use of emotional support animals. That kind of question is reserved for the legislature and not to the courts.
  15. Any contract between the landlord and tenant has to be interpreted in light of the fair housing laws.
  16. The contract specifically allows for reasonable accommodations. Therefore, when the landlord granted a reasonable accommodation request to another tenant, the landlord could not have been in breach. Also, the plaintiff was on notice of this from the moment she signed the lease. As such, the plaintiff’s unilateral mistake as to what the lease requires cannot support her claim for liability against the landlord.
  17. An accommodation is unreasonable within the meaning of the fair housing laws only where it imposes an undue financial and administrative burden on the housing provider or where it fundamentally alters the nature of the provider’s operations.
  18. A waiver of a provision to allow a person with a disability to keep an assistance animal on the premises is per se a reasonable accommodation.
  19. The direct threat defense is an exception to the duty to provide reasonable accommodations and does not change the meaning of what is a reasonable accommodation.
  20. The direct threat defense is intended to establish an affirmative defense available to landlords and not to provide a basis for claims asserted by neighbors.
  21. The majority opinion has weaponized the direct threat affirmative defense into a cause of action for neighbors to sue persons with disabilities and landlords. The lack of any statutory right or remedy in the Iowa Civil Rights Act for tenants affected by a person with a disability exercise of his or her right counsels against creating a private cause of action allowing that.
  22. Any direct threat analysis must be an individualized assessment relying on objective evidence about the specific animal’s actual conduct. Plaintiff does not ask the court to consider the animal’s actual conduct or overt acts. The guidelines prohibit a housing provider from making categorical exclusion based upon breed, size, and weight limitations. The categorical exclusion here is even larger because it would disallow, dogs, and any other animal creating pet dander. Such a categorical exclusion falls outside the direct threat defense.
  23. Plaintiff did not meet the high burden of establishing that the other tenant’s emotional support animal posed a significant risk of substantial harm to her health. That is, the record is not clear as to whether what was involved was just run-of-the-mill allergies or something more significant than that.
  24. The majority opinion leads to the conclusion that the landlord breached the same provisions of the lease agreement with respect to each of the tenants in the building, which goes too far.
  25. Cold like symptoms do not constitute a constructive eviction.
  26. The laws of contract and quiet enjoyment do not require a landlord to aggressively deny the statutory rights of persons with disabilities and risk substantial civil and criminal liability. So, under the doctrine of prevention by government regulation, the landlord cannot be sued for any breach of contract or breach of the warranty of quiet enjoyment under the circumstances. Here the landlord has acted in good faith by trying to figure out the situation for a year.
  27. While the landlord’s efforts to deal with both tenant’s situation were not successful, that harm to the plaintiff was without legal injury under the common law. Without a legal injury, plaintiff has no claim.
  28. The holding of the majority is a prohibited discriminatory housing practice violating the letter and spirit of the fair housing laws.
  29. The Fair Housing Act, 42 U.S.C. §3615, provides that any law of the state purporting to require permitting an action that is a discriminatory housing practice is invalid.
  30. Case law also makes clear that the Fair Housing Act also provides relief not only from policies adopted and action taken with discriminatory intent, but also from the application of facially neutral standards having a discriminatory effect upon a protected class, such as persons with disabilities. So, the first in time first in right rule, is a discriminatory housing practice violating 42 U.S.C. §3615.
  31. The majority opinion creates financial incentive for cotenants to sue persons with disabilities seeking reasonable accommodation and the landlord granting of the reasonable accommodation.
  32. The majority opinion allows a cotenant to override statutory authority granted to a housing provider and demand the provider deny requested accommodation under the threat of a lawsuit all without bearing any of the financial consequences if the denial is in fact wrong. Further, if the cotenant prevails on her claim, the housing provider has to pay damages. If the cotenant loses, the cotenant is only out the small claim filing fee. So, by placing the financial risk and persons with disabilities and housing providers, the majority opinion discourages persons with disabilities from seeking reasonable accommodation and discourages landlords from granting reasonable accommodations, all of which is contrary to the spirit of the fair housing laws.





  1. All of the opinions ignore that emotional support animals do not appear in the Fair Housing Act or in their final implementing regulations at all. Rather, emotional support animals originally came out in a circular in 2013 and then again in a more recent circular this year, which we discussed here. As mentioned previously, it is highly doubtful under Kisor v. Wilkie, discussed here, that the HUD circular would be given deference by a court since the circular is not even interpreting a regulation let alone an actual statutory provision.
  2. There wouldn’t be an issue if emotional support animals were not allowed at all in dwellings under the Fair Housing Act. As mentioned above, under Kisor a court would be free to pay no attention to the HUD circular if it so desired.
  3. The line between an emotional support animal and a service animal can be very small. A service animal is any dog that has been trained to engage in recognition and response with respect to an individual’s disability. Depending upon the disability and the breed of dog, that may not be that hard to pull off. Accordingly, this decision is a strong incentive for anyone needing an animal in their dwelling in order to deal with the disability for them to train the dog to engage in recognition and response with respect to the particular issues they deal with. Finally, remember under the ADA, miniature horses get treated similarly as dogs even if they are not technically service animals.
  4. Since both parties were essentially on the same page, I can’t see how this gets appealed to anywhere.
  5. The first in time first in right approach has its problems. However, Justice Appel’s approach has its problems as well. The first in time is first in right is absolutely a facially neutral policy that discriminates against persons with disabilities. On the other hand, a balancing of the interest forces a jurist to compare disabilities, which is a real nightmare.
  6. The bottom line of this decision is that a landlord in Iowa would have to be out of their minds to grant an emotional support animal in a multifamily or dormitory context as undoubtedly there are existing tenants or members of a dormitory with allergies, with some of those likely significant. Of course, if the landlord does deny the emotional support animal, then the tenant seeking the emotional support animal will contact HUD. HUD will use its circular to find that the landlord is violating the Fair Housing Act. So, the landlord is caught between following a HUD circular and following Iowa law as the Iowa Supreme Court interpreted it. Once the landlord is sued by HUD, the landlord would do well to take Justice McDonald’s opinion as its defense and also seek a declaratory relief as to what it should do.
  7. I can see how Justice McDonald would say that direct threat is being weaponized and also being used to change the meaning of reasonable accommodations.
  8. I know there are individuals out there who believe that emotional support animals simply do not do what they claim to do. I respect that. However, I do know that dogs, for example, do help people in anxiety attacks redirect themselves out of them even if it means just simply hugging the dog. So, emotional support animals, particularly when it comes to dwellings, may play a very critical role in helping a person with a disability take advantage of that dwelling and live independently.
  9. The trend with emotional support animals is clear. That is, the trend is very much against them. That said, the line between an emotional support animal and service animals can be small indeed. Decisions like this as well as the upcoming Department of Transportation regulations, create a strong incentive for individuals to have their service animals trained by someone or by themselves to engage in recognition and response to ameliorate the effects of their disabilities..
  10. Definitely look for copycat litigation building on the Iowa case. When that happens, if you are a landlord, I would seek to get HUD involved. If the HUD circular means anything, which it may not, I would think that HUD would want to get involved in order to vindicate its circular.
  11. How much medical documentation a person must provide to be able to take advantage of the priority in time test laid out by the Iowa Supreme Court is unclear.
  12. The Iowa Supreme Court decision is limited to emotional support animals. A very different conclusion may follow if a service animal was involved.
  13. For a similar case, see Entine v. Lissner.
  14. Never forget about the interactive process and start it early.
  15. A really good idea for landlord to have knowledgeable ADA/FHA attorneys on retainer.
  16. Very strange that the defendant did not raise the Iowa statute giving it a defense to damages and injunctive relief because it did seemingly exercised due diligence and the failure of the due diligence was beyond the landlord’s control. As such, it makes you wonder whether a real legal dispute existed.
  17. Looking at Iowa Code 216.8B(1)(a), the statute specifically refers to an assistance animal under the “Fair Housing Act,” and under the, “Rehabilitation Act.” As we have discussed already, the Fair Housing Act does not define assistance animal. Instead, it is a HUD circular. Also, a brief search had me encountering great difficulty in finding any Rehabilitation Act regulations talking about assistance animals. I am not saying that such regulations don’t exist, but I am saying that they are not easily found. So, an argument can be created that an assistance animal as defined by the IA statutory provision simply does not exist.
  18. 24 C.F.R. §100.400 does contain provisions prohibiting interference with rights a person has under the Fair Housing Act. Assuming the HUD circular is something that courts must deal with, a major assumption, then the majority opinion absolutely encourages interference with a federally protected right in violation of the Fair Housing Act. The majority opinion also eviscerate the Iowa code statutory provision prohibiting interference when it comes to a person seeking an assistance animal.
  19. While the FHA use the term handicapped in discussing who is protected, don’t you use it. The term “handicapped,” has been offensive to persons with disabilities for at least 30 years.


Today’s blog entry comes from the Fourth Appellate District of the State of California. It is an Internet accessibility case. The difference with this case is that there is a focus on the California’s Civil Rights Act, what they call the Unruh Civil Rights Act. The facts are pretty straightforward. The plaintiff is permanently blind and requires screen reading software to vocalize visual information on the computer screen that allows him to read website content and access the Internet. Of course, the credit union’s site was not accessible. So, he sues under the Unruh Civil Rights Act alleging both intentional discrimination and a violation of the ADA. A violation of the ADA is an independent basis for liability under the Unruh Civil Rights Act. The matter went all the way up to the point where a jury trial was imminent. However, at the last minute the trial judge granted defendant’s motion for nonsuit and concluded that the website was not subject to the ADA as it was not a place of public accommodation. Plaintiff appealed. As usual, the blog entry is divided into categories and they are: court’s reasoning introductory matter; court’s reasoning discussing the various views on Internet accessibility; court’s reasoning adopting the nexus view; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.



Court’s Reasoning Introductory Matters


  1. 42 U.S.C. §12182 provides that no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person owning, leasing, or operating a place of public accommodation.
  2. In order to establish a violation of the ADA, a plaintiff has to show: 1) he has a disability; 2) the defendant is a private entity owning, leasing, or operating a place of public accommodation; and 3) the plaintiff was denied public accommodations by the defendant because of the disability.
  3. 42 U.S.C. §12181(7) defines a place of public accommodation by listing 12 different categories of covered places and establishments and giving nonexclusive examples of the types of enterprise falling into each category.
  4. A website is not listed in any of the statutory categories. However, that isn’t surprising because no commercial websites existed when the ADA was enacted in 1990. However, in the 30 years since that time, websites are critical to American life and are widely used by both consumers and businesses to communicate information and conduct transactions. Websites are now essential tools in the conducting of daily affairs and have even become more so with the Covid-19 pandemic.
  5. DOJ has previously endorsed the applicability of title III to websites but has not provided specific regulatory guidance.



Court’s Reasoning Discussing the Various Views on Internet Accessibility


  1. Two main views exist with respect to when an Internet site must be accessible to persons with disabilities.
  2. The minority view is that websites are public accommodations within the meaning of the ADA. That is the view of the First, Second, and Seventh Circuit.
  3. Court’s adopting the minority view rely upon the service establishment category of the definition of a place of public accommodation and then extrapolate that Congress must have intended that a place of public accommodation would include providers of services that do not require a person to physically enter an actual physical structure.
  4. Court’s adopting the minority view also emphasized the critical nature of website for transacting business in one’s daily life, and that Congress made clear that the ADA is supposed to adapt to changes in technology.
  5. The majority view is that websites are not places of public accommodations under the ADA, but a denial of equal access to a website can support an ADA claim that the denial has prevented or impeded a plaintiff with the disability from equal access to, or enjoyment of, the goods and services offered at the defendant’s physical facilities. This is the view you see in the Third, Sixth, Ninth, and 11th
  6. The majority view gets to that conclusion by looking at 42 U.S.C. §12181(7) and realizing that just about everything listed there is a physical place.
  7. Neither the United States Supreme Court nor the California Supreme Court have ruled on which view should prevail.



Court’s Reasoning Adopting the Nexus View


  1. The ADA applies to the services of a place of public accommodation and not to services in a place of public accommodation.
  2. The ADA is a remedial statute and should be construed broadly to implement the fundamental purpose of eliminating discrimination against individuals with disabilities.
  3. The nexus rule is supported by the ADA provision, 42 U.S.C. §12182(b)(2)(A)(iii) requiring an entity to provide auxiliary aids necessary to ensuring equal access for individuals with disabilities. The implementing regulations, 28 C.F.R. §36.303(a), on that point require a place of public accommodation to take those steps necessary to ensure no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services unless a fundamental alteration or undue burden is involved. There is also an effective communication rule as well, 28 C.F.R. §36.303(c)(1).
  4. Both the provisions of 42 U.S.C. §12182 and 28 C.F.R. §36.303 strongly support the application of the nexus theory is a place of public accommodation is defined as a physical place.
  5. While courts have not been consistent in defining the scope of the nexus requirement, most courts have interpreted the requirement broadly to conclude that a plaintiff has made the requisite showing if the facts show the website connects customer to the goods and services of the defendant’s physical place.
  6. The nexus test presumes that Congress did not intend the ADA to apply directly to a website. Accordingly, the nexus test considers whether the alleged website deficiency impinges upon the plaintiff’s ability to have equal access to, and enjoyment of, the products and services offered at the physical location. So, application of this standard requires a court to focus on the connection between the website and the goods and services offered by the place of public accommodation.
  7. Plaintiff alleges that the credit union’s website was formatted in a way that prevented him from using his screen reading software to allow him to read the website’s content. The result of that was he could not look for credit union locations, check out its services, or determine which location to visit. He also could not effectively browse for defendant’s locations, products, and services online. Finally, if the website were accessible, he could independently investigate its services, products, and find a location to visit by using the website as sighted individuals can do. All of these allegations sufficiently show the necessary nexus between the website and credit union’s physical locations.
  8. Whether a particular facility is a place of public accommodation under the ADA, is a question of law.
  9. The fact that many people with disabilities challenging inaccessible websites would be successful in showing the required nexus derives from the fact that websites often provide important tools to connect customers to a physical place. That is a primary reason for many websites. To deprive a person with a disability from accessing essential amenities is precisely the unfairness the ADA was enacted to prevent.
  10. The primary jurisdiction defense doesn’t wash because everyone has known for years that the ADA must be complied with. Complying with the ADA carries with it a certain flexibility. Flexibility is a feature of the ADA and not a bug. Further, just because the DOJ has yet to issue specific regulations that does not bar the court from addressing those issues.
  11. Plaintiff’s pleadings do not seek to impose liability based solely on the credit union’s failure to comply with WCAG 2.0 et. ff. Rather, plaintiff is seeking to impose liability on the credit union for failing to comply with the Unruh Civil Rights Act and the ADA.





  1. There are actually more than two views of how the Internet and the ADA work together. We have discussed all of that many times before. The views are: 1) the Internet is always a place of public accommodation; 2) the Internet is never a place of public accommodation; 3) the Internet is a place of public accommodation if a sufficient nexus exists; and 4) the Internet site is a place of public accommodation if what is going on at the Internet site is the type of activity covered by 42 U.S.C. §12181(7). The trend is very much in favor of the Internet site being a place of public accommodation if what is going on at that site is the type of activity covered by 42 U.S.C. §12181(7).
  2. The DOJ in an amicus brief, which we discussed here, clearly signaled that it favors option #4.
  3. The United States Supreme Court made it pretty clear in South Dakota v. Wayfair, discussed here, that it is likely to favor option #4. It is interesting that the Martinez court did not reference the United States Supreme Court decision in South Dakota v. Wayfair and even more interesting that the plaintiff’s attorneys apparently never brought it up.
  4. It isn’t accurate to say that the Seventh Circuit has decided that the Internet site is always a place of public accommodation. True, Justice Posner said as much in Doe v. Mutual of Omaha Insurance Company. However, that frequently cited statement was dicta, i.e. not germane to the rest of the case.
  5. The auxiliary aids and services rule and the equal access rule do not imply that a physical place must be involved. Let me give you an example from my personal world. Everybody is now using Zoom to some degree. As everyone knows, I am congenitally deaf with a 65 to 120 dB hearing loss in each ear. With advanced hearing aids and lip reading I am able to function in the hearing world. If the volume is loud enough I can get 80 to 90% of what is said without lip reading. So, my cochlears work fine; I just lost the volume, the severity of which depends upon the frequency. When I have to use Zoom, the only way I can come close to equally accessing Zoom compared to a hearing person is to dial in. That dial in number must be offered by Zoom. Believe it or not, Zoom is not offering a dial in number for those with a free account. In that situation, I have to hope that the person I am collaborating with has a landline or cell phone number I can dial into in addition to going online with Zoom. That is, Zoom needs to offer a dial in number as an auxiliary aid and service. Zoom is not a physical place. So, the court’s logic that the effective communication rules and the equal access rules mandate a physical place simply doesn’t hold up.
  6. Absolutely true that the courts are all over the place with respect to what is a sufficient nexus. That in and of itself is a reason not to adopt the nexus test. It is much easier and simple to just figure out whether what is going on at the Internet site if it is the type of thing covered in 42 U.S.C. §12181(7) then it is to try and hit the moving target of whether a sufficient nexus exists.
  7. We have seen before many times that courts are rejecting the primary jurisdiction doctrine, such as here. That is, just because the DOJ has not issued regulations does not mean that ADA title III suits cannot go forward.
  8. Whether a particular facility is a place of public accommodation, is a question of law (for the judge to decide).
  9. WCAG 2.0 is not a liability standard but rather a possible remedy. We are waiting for a decision from the 11th Circuit as to what their view is on that.
  10. Title III causation is on the basis of and not because of. However, that distinction may no longer be important in light of Bostock, discussed here.
  11. Why not an ADA suit? Well, the Unruh Civil Rights Act allows for damages for ADA violations but title III of the ADA does not.
  12. I don’t know if Richard Hunt is going to blog on this case, but it will not surprise me if he does. I previously sent the case his way. His view was that he just did not see where the auxiliary aids and services argument fits or why it was needed. The ADA already has a prohibition against discrimination in the provision of services and providing services only in an inaccessible way is directly discriminatory. I couldn’t agree with Richard more.

Today’s blog entry deals with the question of whether title I of the ADA applies to foreign flagged cruise ships. We know that under this case, Spector v. Norwegian Cruise Lines, title III of the ADA applies to foreign flagged cruise ships under some circumstances. However, this is a title I case. It’s a really interesting question. So, I thought it would be worth exploring here. The decision is from the Southern District of Florida decided on June 5, 2020. The case is Schultz v. Royal Caribbean Cruises, Ltd. It is actually a seventy-seven page decision, but we will break it down to more manageable levels. As usual, the blog entry is provided into categories and they are: facts; court’s reasoning extra territoriality; court’s discussion of Supreme Court precedent; court’s reasoning on how do you determine location of a plaintiff’s employment; court’s reasoning on the conflict with foreign laws exception; court’s reasoning on proving up an ADA claim; court’s reasoning on did the plaintiff have a disability; court’s reasoning on whether plaintiff is qualified; court’s reasoning on pretext; and my take on Spector and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.





Plaintiff, a thirty-three year old Wisconsin resident and U.S. citizen, is an opera singer who applied for employment as part of an opera program onboard the Azamara Journey. The vessel was scheduled to embark on a fourteen-week voyage from Singapore to Stockholm on March 25, 2018 to June 29, 2018. Defendant gave Plaintiff a job offer with a condition that Plaintiff successfully completes a pre-employment medical examination (“PEME”) under the guidelines of the International Labour Organization (“ILO”).


The examining physician completed a form noting that Plaintiff was fit for duty at sea despite a history of depression and anxiety. However, the physician also included a note that Plaintiff needed psychiatric clearance. A reviewing doctor, a physician at Broward Health, agreed with that assessment and recommended that Plaintiff undergo a psychiatric evaluation. Defendant then informed Plaintiff that he needed to obtain a psychiatric evaluation that would address his history of depression, his current mental status, and his fitness for duty at sea.

To comply with this request, Plaintiff arranged a video session with his former treating psychiatrist, Dr. Bernard Gerber (“Dr. Gerber”). Dr. Gerber wrote a letter, following the session, that Plaintiff was mentally fit for duty at sea. Dr. Gerber also stated that, although Plaintiff suffered from major depression since the age of 9 and survived a prior suicide attempt, Plaintiff had been in remission with the help of medication and psychotherapy. Dr. Gerber found that that there was little to no risk of harm to Plaintiff or others and that the risk of suicidal ideation was low.

Defendant’s chief medical consultant, Dr. Benjamin Shore (“Dr. Shore”), then reviewed Plaintiff’s medical file in March 2018. This included a review of Plaintiff’s disclosures on his medical forms and Dr. Gerber’s letter. Based on this information, Dr. Shore concluded that Plaintiff was not fit for duty at sea under the applicable ILO guidelines because of Plaintiff’s history of major depression. More specifically, Dr. Shore found that Plaintiff’s depression was persistent or reoccurring within the meaning of the ILO guidelines because Plaintiff continued to receive treatment for depression in the form of psychotherapy and medication. Dr. Shore also determined that he could not exclude the possibility that Plaintiff’s major depression would reoccur if Plaintiff were on a cruise ship for an extended period without access to medical services. Based on Dr. Shore’s assessment, Defendant withdrew its employment offer and Plaintiff filed this action seeking relief under the ADA and the FCRA.

Finally, as we will see below, prior to the conditional job offer being withdrawn plaintiff had spent two months rehearsing in Florida and being paid for same.



Court’s Reasoning Extra Territoriality

  1. A long-standing principle of American law is that unless a contrary intent of Congress appears, any legislation is meant to apply only within the territorial jurisdiction of the United States.
  2. Where a foreign flagged vessel is operating in U.S. waters, that foreign flagship sailing in the U.S. waters is not extraterritorial. Under Spector, U.S. laws are presumed to apply if the interests of the United States or its citizens rather than the interest internal to the ship are at stake.
  3. Absent a clear statement of congressional intent, general statutes do not apply to foreign flagged vessels insofar as they concern matters involving only the internal order and discipline of the vessel rather than the peace of the port.
  4. If the failure to hire plaintiff intruded upon the internal affairs of a foreign flagged vessel, then a clear congressional statement is necessary in order for title I of the ADA to apply.
  5. Title I of the ADA does not have such language in it. Rather, there is only a general statement that the law applies extra territorially.


Court’s Discussion of Supreme Court Precedent

  1. Spector v. Norwegian Cruise Lines Limited held that a clear congressional statement is required for U.S. law to apply to foreign vessels operating in domestic waters when the law implicates the internal order of the foreign vessel rather than the welfare of American citizens.
  2. U.S. laws are presumed to apply to foreign vessels operating in U.S. waters unless the law implicates the internal order of a vessel. If it doesn’t implicate the internal order of the vessel, only then is explicit congressional intent required.
  3. Plaintiff never made it onboard a seagoing vessel. Rather, plaintiff complains of a vessel’s employment practices under the ADA taking place entirely on U.S. soil. That is, plaintiff, a U.S. citizen, was denied employment before he ever boarded a foreign vessel in international waters.
  4. In the 11th Circuit, the internal affairs doctrine generally has been applied where application of American law interferes with relations between the ships foreign owner and the owner’s foreign born crew, which isn’t the case here. The Florida Supreme Court has said the same.
  5. It is reasonable to assume that Congress intended a statute to apply to entities in U.S. territory serving, employing, or otherwise affecting American citizens, or that affect the peace and tranquility of U.S. even where those entities happen to be foreign flagged ships.
  6. Spector enforced the ADA against a foreign flagged vessel doing most of its business in and from from the United States.
  7. Spector never considered the question of whether the physical barriers at issue in the case interfered with the ship’s internal affairs. Instead, it remanded the question to the Fifth Circuit.
  8. In a footnote, the court noted that the Second Circuit has found that title VII, the ADA, and the ADEA all apply to a foreign company’s domestic operations. The Second Circuit also noted that U.S. subsidiaries of foreign corporations are generally subject to U.S. antidiscrimination laws, and absent treaty protection, U.S. branch of a foreign corporation is not entitled to immunity not enjoyed by such subsidiaries.
  9. What is the location of the plaintiff’s employment becomes critical in trying to figure out whether title I of the ADA applies.


Court’s Discussion of How Do You Determine Location of a Plaintiff’s Employment

  1. One possible test is the primary workstation test. The primary workstation test focuses on the place where the work is actually performed disregarding other factors, such as the location where plaintiff is hired or trained.
  2. The primary workstation test is vague and overly simplistic in this case for several reasons: 1) plaintiff never made it onboard a foreign flagged vessel; 2) it may or may not matter if a plaintiff worked in conjunction with a third party and whether time spent working on U.S. soil outweighs a future working relationship abroad that never materialized; 3) the primary workstation test never dealt with the situation involving employment in the United States; 4) and the primary workstation test cases neither contemplated a plaintiff first working in the United States nor contemplated the situation where employment overseas was intended to be temporary.
  3. Another test is the center of gravity test. That test takes into account the entire employment relationship between a plaintiff and an employer.
  4. The center of gravity test involves looking at several factors, including: 1) had any employment relationship in fact been created at the time of the alleged discrimination; 2) if so, where was that employment relationship created and where were the terms of the employment negotiated; 3) the intent of the parties concerning the place of employment; 4) the actual or contemplated duties, benefits, and reporting relationship for the position at issue; 5) the particular locations where the plaintiff performs those employment duties and receive those benefits; 6) the relative duration of the employee’s assignments in various locations; 7) the domicile of the parties; and 8) the place where the allegedly discriminatory conduct took place. The list is not exclusive. The center of gravity is determined based upon the totality of the circumstances.
  5. In looking at the factors for the center of gravity test, the following conclusions are reached: 1) the employment relationship was created in Florida when the defendant gave plaintiff a conditional job offer; 2) the terms of the employment relationship are also tied to the U.S. as a result of an addendum added to the contract by the defendant; 3) the terms of the employment relationship were decided in the U.S.; 4) while the parties intended plaintiff to be trained and to attend rehearsals in the United States, they also anticipated plaintiff to be an opera singer in international waters and to report to a vessel owner while on the high seas; 5) U.S. is the only location where the plaintiff actually performed any duties and received benefits when he rehearsed for two months and received payment of compensation for his services; 6) plaintiff’s domicile is in the U.S. and no evidence existed that plaintiff intended to change that domicile at any time.
  6. Defendant did not offer a single case where allegations of unlawful conduct occurred solely in the United States where the plaintiff performed any job related duties in the same location, and where a court still found that a plaintiff’s complaint intrudes on the internal affairs of a seagoing vessel.
  7. Accordingly, defendant has failed to show that the denial of plaintiff’s employment categorically interfered with matters concerning only the ship’s internal operations.


Court’s Reasoning on Conflict with Foreign Laws Exception

  1. 42 U.S.C. §12112(c)(1) provides that if complying with the ADA would cause a covered entity to violate the law of the foreign country where the workplace is located, then the entity does not have to comply with that particular provision of the ADA.
  2. Defendant failed to submit any expert opinions on whether compliance with the law of Malta would violate the ADA. In fact, there may not even be a conflict at all because the defendant failed to point to a single provision of Maltese law supporting that a conflict even exists. They also never relied on a single piece of expert testimony on how to interpret and apply Maltese law.
  3. Defendant failed to reference a case where a court has allowed a party to raise a genuine issue of material fact as to the interpretation and application of foreign law based upon speculation, guesswork, and the absence of any competing expert testimony.


Court’s Reasoning on Proving up an ADA Claim

  1. Establishing a prima facie case of discrimination for violating the ADA means showing: 1) plaintiff was a person with a disability; 2) plaintiff was qualified to perform the job; and 3) plaintiff was subjected to an adverse employment action because of his disability.
  2. The burden of proof and the results are different depending upon whether the case involves direct or indirect evidence. Also, convincing mosaic is an independent standard that can be looked at as well. In this case, looking at convincing mosaic is unnecessary because the case is clearly one for indirect evidence and the McDonnell Douglas burden shifting scheme.
  3. In the 11th Circuit, direct evidence only occurs when there is no other possible intent that could be presumed from the evidence.
  4. Direct evidence only applies to the question of whether the defendant took the adverse employment action with discriminatory intent and not to the other elements of a prima facie claim.
  5. If a plaintiff meets the prima facie elements and has direct evidence, that means the case is strong enough to go to the jury.
  6. This case is clearly a disparate treatment case because it does not involve a neutral policy with a disproportionate effect on people with his medical history.
  7. Withdrawal of a conditional job offer is an adverse employment action.


Court’s Reasoning on Whether Plaintiff Has a Disability

  1. A person has a disability under the ADA, 42 U.S.C. §12102(1), if: 1) they have a physical or mental impairment that substantially limits one or more major life activities; 2) a record of such an impairment; or 3) is regarded as having such an impairment.
  2. Substantially limits, 29 C.F.R. §1630.2(i), refers to whether a person is unable to perform a major life activity that the average person in the general population can perform or is significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration for which an average person in the general population can perform that same major life activity.
  3. With respect to the actual disability definition, a person is substantially limited when that individual is unable to perform a major life activity as compared to most people in the general population, and the term gets interpreted broadly in favor of expansive coverage to the maximum extent permitted by the ADA. See 29 C.F.R. §1630.2(j)(1)(i).
  4. In figuring out whether a substantial limitation on the major life activity exist, you look at: 1) the nature and severity of the impairment; 2) the duration or expected duration of the impairment; and 3) the permanent or long-term impact, or the expected permanent or long-term impact of or resulting from the impairment. Most of the time you do not need to consider medical or statistical evidence to figure that out. See 29 C.F.R. §1630.2(j)(1)(iv)-(v).
  5. With respect to the record of prong of the ADA, that provision protects an individual with a record of past disability even if that individual is no longer disabled.
  6. Under the regarded as prong, 42 U.S.C. §12102 (3)(A), that works if a plaintiff can establish that the employer perceived a physical or mental impairment regardless of whether that impairment limited or is perceived to limit a major life activity. A person cannot claim regarded as protection if the impairment is transitory and minor. See this blog entry for example.
  7. For a regarded as claim to work, a plaintiff has to show that the perceived disability involved a major life activity and that the perceived disability is substantially limiting and significant.
  8. Since the employer withdrew the offer because of a risk that plaintiff might take his own life, it is the regarded as prong at issue.


Court’s Reasoning on Whether the Plaintiff Is a Qualified Individual

  1. Whether an individual is qualified under the ADA involves first determining whether the plaintiff satisfied the position’s prerequisites, including sufficient experience and skills, and the adequate educational background, or the appropriate licenses for the job. Then, it becomes a question of figuring out whether the plaintiff can perform the essential functions of the job.
  2. The EEOC has a seven factor test for figuring out what is an essential function. Essential functions are the fundamental job duties of the employment position and not the marginal ones.
  3. Plenty of evidence was offered to show that a genuine material issue of fact exists with respect to whether the plaintiff was qualified under the ADA.


Can the Plaintiff Show Pretext on the Part of the Employer

  1. Employer gets to use the honest belief rule.
  2. Plenty of evidence exists on both sides to raise a question of fact as to whether the withdrawal of the conditional job offer was due to intentional discrimination v. legitimate safety concerns.


My Take on The Spector Decision And Thoughts/Takeaways

  1. The court notes that whether the plaintiff prevails on damages depends entirely on whether the internal operations of the ship are involved. Just what are the internal operations of the ship? That, as we will see below, is extremely complicated.
  2. In Spector, Justice Kennedy said that when it came to physical barriers for persons with disabilities on that ship, such a problem might well go to the internal affairs of the ship because different countries might have different architectural requirements. Justice Thomas believed that the ADA would not be applicable to structural modifications as he believed that would go to the ship’s internal affairs. Justice Ginsburg and Justice Souter believed that internal affairs only came into play where the ADA conflicts with international obligations.
  3. The Justices in Spector agreed that internal affairs was the line of demarcation for ADA liability. However, a majority could not agree on what that term meant. Also, Spector arose in the context of architectural barriers and not with respect to the employer employee relationship. Accordingly, it’s really difficult to tell how the Supreme Court would attack this case for several reasons. First, obviously the makeup of the court has changed. Second, Spector involved architectural barriers and not employment at all. So, anybody’s guess as to how the Supreme Court might attack this. Certainly relevant to this decision, is going to be the Supreme Court decision in the LGBT cases, which we discussed here, because of the majority’s discussion of but for causation. That is, when it comes to pretext, it is now a brand-new ballgame.
  4. I fully expect this case to make its way to the 11th Circuit at some point since the case is on the very cutting edge of the ADA.
  5. If you are going to use the foreign conflict exception to the ADA, expert testimony is critical.
  6. Depending upon the Circuit, convincing mosaic may be the only standard or a third possibility when it comes to direct or indirect evidence.
  7. What constitutes direct evidence also varies from jurisdiction to jurisdiction. So, be sure to check on how your jurisdiction be used direct evidence. The jurisdiction’s view of direct evidence will go a long way to figuring out whether a plaintiff will automatically get past a summary judgment motion.
  8. Direct evidence v. indirect evidence or convincing mosaic only goes to whether a discriminatory intent existed and not to the other elements of a prima facie case.
  9. To proceed under a regarded as theory, despite what Schultz seem to say all you have to show is the employer perceived a physical or mental impairment.
  10. I’m not convinced that the plaintiff only satisfied the regarded as prong here. From reading the case, a strong argument seems to exist that the plaintiff satisfied all three prongs of the ADA’s definition of disability.

This week the Supreme Court came down with the decisions in the LGBT cases, which I previously discussed here. The decision will have an absolute huge impact on people with disabilities in both positive and possibly negative ways. Before moving onto the decision, I do want to say that my wife and I and my daughter for the last seven years have been members of Congregation Bet Haverim, which was originally founded as the home for the LGBT community in Decatur, Georgia some 25 years ago. My daughter and I have also taught at the religious school there for the last several years. So, on a policy level I couldn’t be happier about the decision that came down yesterday. Did they get it right on the law? I will leave that for readers to decide after going through the reasoning of each of the opinions, which I explore in detail. I will say that I always enjoy reading Justice Gorsuch’s opinions. Regardless of whether I agree with him or not, his writing is one of the most accessible I have seen for a judge. I felt the same way when he was on the 10th Circuit Court of Appeals. For those interested in where Justice Gorsuch might stand on the rights of people with disabilities excluding this case, check out this blog entry. This blog entry will be divided into the categories of Justice Gorsuch’s majority opinion; Justice Alito’s dissenting opinion; Justice Kavanaugh’s dissenting opinion; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories. I will say that you will want to read at a minimum Justice Gorsuch’s majority opinion section and the thoughts/takeaways section.



Justice Gorsuch’s Majority Opinion


  1. An employer who fires an individual for being homosexual or transgender terminates that person for traits or actions it would not have questioned in members of a different sex. That is, sex plays a necessary and undisguisable role in the decision, which is exactly what title VII forbids.
  2. While it is true that the Civil Rights Act might not have anticipated that it would lead to the protection of those in the LGBT community, it is also likely that the drafters of the Civil Rights Act were not thinking about consequences that became apparent over the years, including prohibition against discrimination on the basis of motherhood and its ban on sexual harassment of male employees.
  3. The limits of the drafters’ imagination supply no reason for ignoring the law’s demands. When the express terms of the statute give one answer and an extratextual consideration another, it is no contest. Only the written word is the law, and all persons are entitled to its benefits.
  4. Title VII of the Civil Rights Act prohibits employers from taking certain action because of sex. The ordinary meaning of “because of,” is “by reason of,” or on, “account of.” That means, title VII’s “because of,” test incorporates the simple and traditional standard of but for causation.
  5. In other words, a but for test directs us to change one thing at a time and see if the outcome changes. If it does, you have found a but for cause.
  6. Oftentimes, events have multiple but for causes. For example, if a car accident occurs both because the defendant ran a red light and because the plaintiff failed to signal his turn at the intersection, each is a but for cause of the collision.
  7. So long as the plaintiff’s sex was one but for cause of that decision, that is enough to trigger the law.
  8. If Congress didn’t want to deal with but for causation, it could have said as much. For example, it could have added solely to indicate that actions taken because of multiple factors do not violate the law (our blog has discussed numerous times how the Rehabilitation Act, 29 U.S.C. §794, works that way). Another possibility is that Congress could have used the term “primarily because of,” to indicate that the prohibitive factor had to be the main cause of the defendant’s challenge employment decisions. However, Congress didn’t do that. If anything, Congress moved in the opposite direction by amending title VII in 1991 to allow a plaintiff to prevail merely by showing that a protected trait, such as sex, is a motivating factor.
  9. The but for causation standard continues to afford a viable, if no longer exclusive, path to relief under title VII.
  10. The term “discriminate,” in 1964 meant roughly what it means today. That is, to make a difference in treatment of favor (of one as compared with others). So, to discriminate against a person would seem to mean treating that individual worse than others were similarly situated. In such cases, the Supreme Court has also held that the difference in treatment based upon sex must be intentional.
  11. Title VII focus is on individuals and not groups. What is an individual is has not changed from 1964. That is, a particular being as distinguished from a class, species, or collection.
  12. Where an employer fires a woman for being insufficiently feminine and also fires a man for being insufficiently masculine, the employer fires an individual in part because of sex.
  13. An employer violates title VII when it intentionally fires an individual employee based in part on sex. It simply doesn’t matter that other factors besides the plaintiff’s sex contributed to the decision. It also doesn’t matter if the employer treated women as a group the same when compared to men as a group.
  14. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee (if changing the employee’s sex would have yielded a different choice by the employer), then a statutory violation has occurred.
  15. An individual’s homosexuality or transgender status is not relevant to employment decisions because it is impossible to discriminate against the person for being homosexual or transgender without discriminating against that individual based on sex.
  16. Where you have a man and a woman both attracted to men, if the employer fires a male employee for no reason other than the fact that he is attracted to men, the employer discriminates against the male employee for traits or actions it tolerates in his female colleagues. In other words, in that situation the male employee is fired in part based upon the employee’s sex and the affected employee’s sex is a but for cause of his discharge.
  17. In the situation of a person who is identified as a male at birth now identifies as a female, if the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates an employee as female at birth. In that situation, the individual employee’s sex plays an unmistakable and impermissible role in the termination. In the situation of a person who is identified as a male at birth now identifies as a female, if the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee female at birth. In that situation, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.
  18. Homosexuality and transgender status are inextricably bound up with sex.
  19. It doesn’t matter when an employee treats one employee worse because of an individual’s sex that other factors may contribute to the decision.
  20. Title VII simply doesn’t care when two causal factors may be in play. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met and liability may attach. For example, intentionally burning down a neighbor’s house is arson even if the perpetrator’s ultimate intention or motivation is only to improve the view. The same can be said for intentional discrimination based on sex violating title VII even if it is only intended as a means to achieving the employer’s ultimate goal of discriminating against homosexual or transgender employees.
  21. Where an employer discriminates against homosexual or transgender employees, the employer is inescapably intending to rely on sex in the decision-making.
  22. Title VII makes each instance of discriminating against an individual employee because of that individual’s sex an independent violation of title VII.
  23. It is no defense for an employer to discriminate intentionally against an individual only in part because of sex. It is also no defense that the employer may happen to favor women as a class.
  24. A world that appears evenhanded at the group level can prove discriminatory at the level of individuals.
  25. An employer’s intentional discrimination on the basis of sex is no more permissible when it is prompted by some further intention or motivation.
  26. It is irrelevant the label put on what an employer might call its discriminatory practices or what else might motivate it. That is, labels and additional intentions or motivations don’t make a difference when it comes to title VII liability.
  27. The plaintiff’s sex need not be the sole or primary cause of the employer’s adverse action. So, it has no significance if another factor might also be at work or even plays a more important role in the employer’s decision.
  28. Sorting out the true reason for an adverse employment decision is often a hard business, but none of that matters in this case.
  29. It doesn’t matter that in common parlance a person may say that they were terminated because of sexual orientation or trans status rather than saying that they were terminated because of sex. In conversation, the speaker is likely to focus on what seemed most relevant or informative to the listener. So, an employee who had just been fired is likely to identify the primary and most direct cause rather than list every single but for cause. To do otherwise, would be really tiring. Even so, conversational norms or conventions do not control title VII’s legal analysis, which focuses on whether sex was a but four cause.
  30. Where sex isn’t the only factor or maybe even the main factor, there still can be liability under title VII if it is a but for cause.
  31. Nothing in title VII turns on the employer’s labels or any further intention for motivation for its conduct beyond sex discrimination.
  32. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today. Anyway you slice it, the employer intentionally refuses to hire applicants in part because of the affected individual’s sex regardless of whether it learned of the applicant’s sex in the first place.
  33. Discrimination based on homosexuality or transgender status cannot happen without it also being discrimination based on sex.
  34. Title VII prohibits all forms of discrimination because of sex regardless of how they manifest themselves or what labels someone might attach to them.
  35. Just because Congress had never successfully added sexual orientation to title VII, that is not controlling. That is, speculation about why a later Congress declined to adopt new legislation offers a particularly dangerous basis and for the interpretation of an existing law a different and earlier Congress did adopt.
  36. Title VII’s plain terms and the Court’s precedents don’t care if an employer treats men and women comparably as groups. If an employer fires both lesbian and gay men equally, that doesn’t diminish their liability but doubles it.
  37. Often in life and in law, two or more factors combined to yield a result that could’ve also occurred in some other way. For example, if it’s a nice day outside and your house is too warm, you might decide to open the window. Both the cool temperature outside and the heat inside are but for causes of your choice to open the window. That decision doesn’t change just because you would’ve also opened the window had it been warm outside and cold inside.
  38. For employer’s to say that sex must be the sole or primary cause of an adverse employment action for title VII liability, that suggestion is at odds with everything known about title VII.
  39. Imposing a stricter causation test for use in cases involving sexual orientation or transgender status would create a curious discontinuity in the law to put it mildly.
  40. Where the meaning of a statute is plain, the Court’s analysis ends there. That is, people are entitled to rely on the law as written without fearing that the court might disregard its plain terms based upon some extra-textual consideration.
  41. Legislative history is meant to clear up ambiguity not create it.
  42. The fact that a statute has been applied in situations not expressly anticipated by Congress does not demonstrate ambiguity, rather it demonstrates the breath of legislative command. It is the provisions of legislative command rather than the principal concerns of legislators that govern judicial interpretation.
  43. When a new application emerges that is both unexpected and important, the dissenting opinions would have the question merely be pointed out and referred back to Congress while declining to enforce the plain terms of the law in the meantime. That type of reasoning has long been rejected by the Court.
  44. It doesn’t make sense to say that a law is only as good as far as legislators intended its expected applications or its purpose at the time the law was enacted.
  45. It isn’t necessarily clear that no one in 1964 or for some time after would have anticipated a holding that title VII protects people from discrimination if they are attracted to people of the same sex or are transgender. Shortly after title VII was passed, gay and transgender employees began filing title VII complaints. In the debate over the equal rights amendment, some people argue that the equal rights amendment might also protect homosexuals from discrimination.
  46. Often lurking behind the objection about unexpected applications, is a cynicism that Congress could not possibly have meant to protect a disfavored group. For example, when the Court applied the ADA to prisons, some demanded a closer look. The Court emphatically rejected that view explaining that where the text was unambiguous, whether a specific application was anticipated by Congress was irrelevant.
  47. To refuse enforcement just because you are applying protective laws to a group that was politically unpopular at the time of the law’s passage, not only requires the Court to abandon its role as interpreter of statutes, but it would also tilt the scales of justice in favor of the stronger popular group and neglect the promise that all persons are entitled to the benefit of the law’s terms.
  48. If title VII’s plain text was only applied to the group expected in 1964, there would be a lot of law to overturn. In fact, many now obvious applications of title VII met with heated opposition early on even among those tasked with enforcing the laws. All you have to do to see that to see how the EEOC has evolved over the years with respect to what title VII covers.
  49. Title VII prohibition of sex discrimination in employment is a major piece of federal civil rights legislation and was written in starkly broad terms. It has repeatedly produced unexpected applications. Congress’s key drafting choice to focus on discrimination against individuals rather than on groups and to hold employers liable whenever sex is a but for cause of the plaintiff’s injuries, virtually guaranteed that unexpected applications emerge over time.
  50. Drafting new legislation or addressing unwanted consequences of old legislation is the responsibility of Congress.
  51. With respect to parade of portables that may result from the decision, none of those are currently before the Court. To figure out those issues, you would need adversarial testing. Under title VII, bathroom, locker room, or anything else of the kind are not being addressed by this decision. Whether other policies and practices might or might not qualify as unlawful discrimination or find justification under other sections of title VII are questions for future cases (that includes any cases dealing with the issue of how protecting religious liberty interact with title VII, which in any event none of the parties argue was the case here).



Justice Alito’s Dissent


  1. Sexual orientation and gender identity do not appear on the list of what employers may not do in title VII of the Civil Rights Act.
  2. Since Congress had never amended title VII to include sexual orientation and transgender, title VII’s admonition that sex discrimination is prohibited means what it has always meant.
  3. The Court has essentially taken a bill to amend title VII, which would specifically include sexual orientation and gender identity, and issued it under the guise of statutory interpretation. Such an approach is a brazen abuse of the Court’s authority to interpret statutes.
  4. The concept of discrimination because of sex is entirely different than the concept of discrimination because of sexual orientation or gender identity.
  5. The Court’s duty is to interpret statutory terms to mean what they conveyed to reasonable people at the time the statutory term was written. Accordingly, in 1964, it would have been hard to find anyone who thought that discrimination because of sex meant discrimination because of sexual orientation not to mention gender identity, a concept essentially unknown in 1964.
  6. While the majority decision sails under a textualist flag, what it actually does is apply the theory that courts should update statutes so they better reflect the current values of society. That is an approach that Justice Scalia couldn’t stand. If that is the theory for what the court is doing, they should own up to it as Justice Posner did in the Hively
  7. In 1964, it was as clear as clear could be that discrimination because of sex meant discrimination because of the genetic and anatomical characteristics that men and women have at the time of birth. You will not be able to find a single dictionary from that time defining “sex,” to mean sexual orientation, gender identity, or transgender status.
  8. If sex and title VII mean biologically male or female, then discrimination because of sex means discrimination because the person in question is biologically male or biologically female, not because that person is sexually attracted to members of the same sex or identifies as a member of a particular gender.
  9. The majority opinion spends a lot of time talking about what but for causation is and how it allowed for multiple causation. However, none of that matters if sexual orientation or gender identity does not inherently constitute discrimination because of sex in the first place.
  10. There is not a shred of evidence that any member of Congress interpreted the statutory text to include sexual orientation or general identity when title VII was enacted.
  11. Until 2017, every single Circuit Court to consider the question interpreting whether title VII prohibition against sex discrimination said that sex discrimination meant on the basis of biological sex. Further, the EEOC saw it that way for the first 48 years after title VII became law.
  12. Even the Court concedes that sexual orientation and gender identity are different concepts then discrimination based upon sex. Further, neither sexual orientation nor gender identity is tied to either of the two biological sexes.
  13. Just because the majority opinion repeats over and over again that discrimination because of sexual orientation or gender identity inherently and necessarily entails discrimination because of sex does not make it true.
  14. It is quite possible for an employer to discriminate based upon sexual orientation or transgender status without taking the sex of an individual applicant or employee into account. The US military did that for years. Also, the attorney representing the employees conceded at oral argument that it was possible for an employer to discriminate based upon sexual orientation or transgender status without taking sex into account.
  15. Title VII prohibits discrimination because of sex itself and not because of everything that is related to, based on, or defined with reference to sex.
  16. The Court draws a distinction between things that are inextricably related and those that are related in some vague sense. However, that approach creates arbitrary lines separating the things that are related closely enough from those that are not.
  17. Absolutely true that many people in 2020 and perhaps Congress if the majority had not intervened, believe that it is sound policy to hold that homosexuality or transgender status is not relevant to employment decisions. However, that is not the policy in title VII in its current form. Title VII prohibits discrimination based upon five specified grounds and sexual orientation or gender identity are not on the list. So as long as an employer does not discriminate based on one of the listed grounds, the employer is free to decide for itself which characteristics are relevant to its employment decisions. By proclaiming that sexual orientation and gender identity are not relevant to employment decisions, the court is updating title VII to reflect what it regards at 2020 values.
  18. Until title VII adds sexual orientation as a protected characteristic, employers are free to discriminate based upon sexual orientation. Same for transgender status.
  19. Title VII allows employer to decide whether two employees are materially identical. Even idiosyncratic criteria are permitted. While applying idiosyncratic criteria may be unfair and foolish, title VII permits it. Similarly until title VII is amended, discrimination against gays lesbians or transgender individuals is permitted.
  20. Something that is not sex discrimination cannot be converted into sex discrimination by slapping on the label. Rather, the Court needs to show that a label is the correct label.
  21. The employer’s real objection in the case before it is not attraction to men but homosexual orientation.
  22. Homosexuality and transgender status are distinct concepts from sex. It is simply indefensible for the Court to say that the only possible interpretation is to conflate sex with transgender status and sexual orientation.
  23. Title VII forbids discrimination because of sex and not because of sex stereotypes. Sexual stereotype evidence is related to showing that discrimination occurred because of sex, but that isn’t the same thing as saying title VII prohibits discrimination because of sex stereotyping.
  24. In cases involving discrimination based on sexual orientation or gender identity, the employer’s decision that individuals should be sexually attracted only to persons of the opposite biological sex or should identify with the biological sex applies equally to men and women.
  25. Discrimination because of sexual orientation is not historically tied to a project aiming to subjugate either men or women. An employer discriminating on that ground might be called homophobic or trans phobic but not sexist.
  26. The primary definition of “sex,” in every dictionary refers to male and female based upon biology. That is true today as well as in 1964.
  27. When interpreting a statute, a court has to consider how would the statute have been understood by ordinary people at the time of enactment. That is, judges should ascribe to the words of the statute what a reasonable person conversing with applicable social conventions would have understood them to mean at the time of adoption. So, slicing a statute into phrases while ignoring the setting of the enactment is a formula for disaster.
  28. Textualism calls for an examination of the social context in which a statute was enacted because this may have an important bearing on what words were understood to mean at the time of enactment. That is to say, that you consider communication in the context of the community existing in a particular place and at a particular time. Therefore, those communication must be interpreted as they were understood by the community at the time.
  29. In 1964, ordinary Americans reading title VII would not have dreamed that discrimination included sexual and orientation and gender identity.
  30. In 1964, because of sex meant equal treatment for men and women.
  31. Stretching back in time, 1879 even, you can look at many state and federal laws using language indistinguishable from title VII’s critical phrase, “discrimination because of sex.” In all those situations, the laws were part of a campaign for equality waged by women’s rights advocates for more than a century and meant equal treatment for men and women. Including sexual orientation or transgender status would have clashed in spectacular fashion with the societal norms of the day.
  32. Looking at the norms of the day, Congress could have never included sexual orientation or transgender status within the definition of sex because at the time homosexuality was thought to be a mental disorder, morally culpable, and worthy of punishment.
  33. It wasn’t until 1991 when agencies began to change their security policies and practices regarding sexual orientation.
  34. While society has now come to recognize the injustice of past practices and that provides an impetus to update title VII, that is not the job of the judiciary.
  35. Transgender as a term didn’t come up until the 1970s. Gender identity didn’t appear until 1964 in an academic article. Also, common parlance and dictionaries of the time were still focused on biological sex. It wasn’t until 1980 that the DSM recognize transgender status in some way. Sex reassignment surgery were not performed until 1966, and the great majority of physicians surveyed in 1969 thought that a person seeking sex reassignment surgery was severely neurotic or psychotic. So, it defies belief that the public meaning of discrimination because of sex in 1964 could have possibly encompassed sexual orientation and transgender status.
  36. What the public thought in 1964 is relevant and important because it helps explain what the text was understood to mean when it was adopted.
  37. The Court’s citation of various cases are of no help because all of those cases clearly focus on sex.
  38. In the thinking of Congress and the public in 1964, discrimination based upon sexual orientation and transgender status would not have been evil at all.
  39. The essential question of whether discrimination because of sexual orientation or gender identity constitute sex discrimination is the same regardless of what causation standard is applied. Accordingly, the Court’s extensive discussion of causation standard is just blowing smoke.
  40. An employer discriminating equally on the basis of sexual orientation or transgender status applies the same criteria to every affected individual regardless of sex.
  41. When there is an ambiguity in the terms of the statute, the Court has found it appropriate to look to other evidence of congressional intent, including legislative history. However, the Court refuses to do so here.
  42. The person who added sex to title VII of the Civil Rights Act would have been better off looking for a poison pill by inserting the term sexual orientation or gender identity rather than sex. However, all of the legislative history reveals that the debate was exclusively focused on biological sex.
  43. Since 1975, legislators have tried to add sexual orientation the title VII to no avail. Accordingly, you would be hard-pressed to say that sexual orientation is the same thing as sex discrimination and the courts have said as much. Until 1991, the EEOC agreed.
  44. The Court has no qualms about disregarding over 50 years of uniform judicial interpretation of title VII’s plain text.
  45. The majority decision is going to have a huge impact on the law in a variety of ways. For example, over 100 federal statutes prohibit discrimination because of sex. The court’s refusal to consider the consequences of its reasoning is irresponsible. The Court would have been better off allowing the legislative process to take its course so that they could consider competing interests and find a way to accommodate at least some of them. By intervening this way, the Court has greatly impeded and perhaps effectively ended any chance of a bargained legislative resolution.
  46. Other ways this decision may impact the law include: 1) whether transgender individuals can now use a bathroom or locker room reserved for persons of the sex they identify with; 2) whether a gender fluid person has the right to use a bathroom or locker room they identify with; 3) whether a transgender individual has the right to participate on a sports team or in an athletic competition previously reserved for members of one biological sex (Justice Alito notes this kind of litigation is already happening); 4) whether a college can refuse to prevent opposite biological sex as roommates; 5) whether religious organizations can refuse to hire people based upon sexual orientation or transgender status. True, religious organization get a pass if the employee is a minister, as we discussed here, but not all employees of religious organizations are ministers; 6) whether transgender employees can challenge employer-provided health insurance plans not covering costly sex reassignment surgery; and 7) whether a person can claim that the failure to use their preferred pronoun violates one of the federal laws prohibiting sex discrimination; and 8) whether sexual orientation and transgender individuals are now subject to a heightened standard review with respect to constitutional law. Although the Court does not want to think about the consequences of the decision, it will not be able to avoid these issues for long. The entire federal judiciary will be tied up for years with these kind of disputes.




Justice Kavanaugh’s Dissent


  1. The responsibility to amend title VII belongs to Congress and to the president not to the Court.
  2. Bills to include sexual orientation in title VII have always failed before Congress.
  3. Title VII did not include disability discrimination or age discrimination when enacted. Congress had to come up with separate laws for that.
  4. Judges cannot simply rewrite the law because of their own policy views. Rather, that is for the legislature to do.
  5. Since judges interpret the law as written not as they wish it would be to written, it makes perfect sense that the first 10 United States Court of Appeals to consider whether title VII prohibit sexual orientation all said no.
  6. Whether a literal meaning or an ordinary meaning of the terms is used to approach this decision, the inescapable conclusion that sexual orientation and transgender status is not the same at discrimination based upon sex.
  7. Ordinary meaning approach is the preferred way to go because of respect for the rule of law and democratic accountability. The Court over time has consistently use ordinary meaning rather than literal meaning when looking at statutes. When ordinary meaning and literal meaning conflict with each other, courts have to follow the ordinary meaning.
  8. Courts have to look to the ordinary meaning of the phrase as a whole and not just to the meaning of the words in the phrase. That is because the phrase may have a more precise or combined meaning than the literal meaning of the individual words and the phrases.
  9. Assessing ordinary meaning is not difficult in this case. Both common parlance and common legal usage view of sex discrimination and sexual orientation discrimination as distinct categories of discrimination, back in 1964 and even today.
  10. To say that sexual orientation and transgender status includes sex rewrites history. The women’s rights movement is not the gay rights movement, though many people support both. To say that sexual orientation discrimination is just a form of sex discrimination is a mistake of history and sociology.
  11. Where sexual orientation is prohibited, every single federal statute has explicitly stated this much.
  12. Differences in language convey differences in meaning.
  13. Presidential executive orders also reflect the common understanding that sexual orientation is not the same as sex discrimination. Same goes for federal regulations.
  14. In all the prior cases dealing with sexual orientation that have come before the court, not a single Justice even stated or hinted that sexual orientation discrimination is a form of sex discrimination and therefore gets heightened scrutiny under the equal protection clause. There is not even a trace of any such reasoning in those cases because presumably everyone understood that sexual orientation is distinct from sex discrimination.
  15. The majority opinion makes a fundamental mistake by confusing ordinary meaning with subjective intentions. The majority decision will also promote cynicism about the role of judges because judges need to decide on the law rather than on personal preference.






  1. So, what do you think? Do you think Justice Gorsuch has it right or do you think Justices Alito and Kavanaugh have it right? In addition to your political views, your answer very much might depend upon how you view the role of the judiciary. This blog entry is comprehensive, and so you have plenty of information to make that decision with.
  2. This case is going to be absolutely huge persons with disabilities in several respects. First, we know from this blog entry that retaliation is but for. It was debatable as to whether but for causation applied to title I matters, such as we discussed here. Now, that discussion is academic. We now know that but for can still be the rule even if it is does not mean sole cause. That is, this case makes clear that there can be more than one but for cause. Often times, in employment matters there is more than one but for cause. So, the debate over whether title I has a different causation standard than the retaliation provision of title V is now academic. It’s pretty clear that the rule is but for. However, but for does not mean sole cause. Over and over again, Justice Gorsuch says in his opinion that multiple but for causes are perfectly possible. Where any one of those but for causes exist, liability attaches regardless of whether it is just one part of a larger whole. Many years ago I recall asking a plaintiff attorney for a nonprofit disability rights group about his view of motivating factor litigation. He had told me that jurors didn’t understand motivating factor, and he simply did not understand all the litigation over motivating factor jury instructions. I specifically remember him telling me that jurors are much more likely to understand but for. I can’t remember his name, but he was a prophet.
  3. The second way this case will have an absolutely huge impact on people with disabilities is in the area of equal protection and in the area of sovereign immunity. As you may recall from this blog entry, both of those areas involve figuring out what equal protection classification persons with disabilities fall into. From there, you figure out whether the equal protection clause was violated or not. On the sovereign immunity side, the classification matters because that is what dictates whether the scheme is proportional to the harm being redressed. When it comes to persons with disabilities, we know per this blog entry, that when it comes to accessing the courts, persons with disabilities are at least in the intermediate if not higher level of scrutiny. However, everything else is on a case-by-case basis when it comes to persons with disability. For example, with respect to employment people with disabilities are in the rational basis, lowest, class per this case. Since sexual orientation and transgender discrimination is now sex discrimination, an argument can be made that for purposes of equal protection clause and for purposes of sovereign immunity litigation, people alleging discrimination based upon sexual orientation or transgender status receive a heightened level of scrutiny. If that is the case, that would mean that people facing discrimination on the basis of sexual orientation or transgender status are often times in a higher equal protection classification than persons with disabilities.
  4. The third way this case impacts upon people with disabilities is through the Rehabilitation Act. Under 29 U.S.C. §794 causation is, “solely by reason of.” That means under this case that causation in Rehabilitation Act matters is truly sole cause. One wonders if the upcoming election results in a complete turn over to control this November, certainly no guarantees that it will, whether you would not see an effort to amend the Rehabilitation Act to delete the word, “solely” from 29 U.S.C. §794.
  5. When I was teaching people how to be paralegals, one of the classes I taught was an introduction to philosophy course. In that course, the student learned that the slippery slope argument, which we lawyers are so fond of using, is actually a logical fallacy. That is, everything depends upon its facts, especially in the law, and so there isn’t such a thing as a slippery slope. That may not be the case here. We are already seeing litigation over bathrooms, and in Connecticut we are seeing litigation over whether transgender students can compete on athletic teams of the gender they identify with rather than their biological gender. I already mentioned the equal protection and sovereign immunity piece. I am also already aware of litigation over failure to provide insurance for sex reassignment surgery. Of course, you have the litigation over how the military currently treats trans individuals. It is also perfectly realistic to expect litigation against religious-based entities that discriminate on the basis of sexual orientation or transgender status where that individual is not a minister.
  6. Previously, as mentioned at the top of this blog entry, I have gone through all of Justice Gorsuch’s opinions on disability rights to try and figure out how he might handle disability related cases at the United States Supreme Court. From that review, I did see a stream going through his opinions of how common sense matters. You see some of that in his decision in this case. I have his book that came out shortly after he was put on the Court. I now plan to read it with an eye to see if I can figure out how he got to where he got with respect to the majority opinion.
  7. Justice Roberts also joined the opinion. Previously, he had dissented in gay-rights decisions earlier, such as Masterpiece Cake and Obergefell.
  8. Interesting that Justice Gorsuch brings up the debate about the equal rights amendment. I am pretty sure that the arguments about how the ERA would protect homosexuals from discrimination was a big point made by the anti-ERA activist and not by the pro-ERA side.
  9. Interesting that both Justice Gorsuch and Justice Alito say they are squarely in Justice Scalia’s way of looking at things. That shows just how huge of an impact Justice Scalia has had on the Supreme Court.
  10. Very unclear now why a trans individual would even consider ADA claims when they can now proceed under title VII. After all, the ADA has an exception that can make it difficult for trans individual to proceed under the ADA. See also this blog entry.