EEOC v. William Beaumont Hospital Redux

By William Goren on December 8, 2025

This week’s blog entry will be the last substantive blog entry of the calendar year. As mentioned previously, I will put up the greatest hits of 2025 for the Understanding the ADA blog the week of Christmas.

Turning to the blog entry for the week, on November 19, 2025, the United States District Court for the Eastern District of Michigan denied William Beaumont Hospital’s motion to reconsider, which can be found here. We have blogged previously the court’s decision on the summary judgment motions, here. There is no need to go into the facts as we have previously blogged on it, so the categories for this blog entry are: overview of when a motion for reconsideration should be granted; when can an employer can request what updated medical documentation; whether the initial care coordinator position was vacant is a question of fact; with respect to the initial care coordinator position, William Beaumont Hospital was responsible for the breakdown in the interactive process; and thought/takeaways. Of course, the reader is free to focus on any or all of the categories.

Overview of When a Motion for Reconsideration Should Be Granted

A motion for reconsideration should not be used for a second bite of the apple.
Defendant’s original motion for summary judgment did not make the argument that it had no duty to accommodate until the plaintiff provided the requested medical documentation.
Defendant’s argument for summary judgment rested on several other grounds, and not on the alleged requirement for medical documentation or its necessity. If it was truly a necessity as defendant now asserts, the court would expect that the point should have been front and center during the initial consideration of the issue and it was not. Therefore, it is within the court’s right to deny the motion for reconsideration on procedural grounds alone. That said, the court proceeds to address the merits, as discussed in the below categories, because that discussion is undoubtedly relevant to the remaining issues at trial.

When Can an Employer Request Updated Medical Documentation

Case law indicates that an employer, as part of the interactive process, may request documentation from the employee to verify that they have a disability, but it says nothing about when that documentation is due as a matter of law.
The case law also does not state that an employer can take no action on a plaintiff’s request or pause the interactive process entirely when it is already on notice of an employee’s disability.
An employer’s requirement of providing paperwork is permissible when necessary to establish that an employee’s disability is medically supportive in the first place.
Defendant was already aware that plaintiff had a medically diagnosed disability, and she had already provided them medical paperwork to that effect both when receiving a prior reasonable accommodation and when taking FMLA leave.
A jury could find that imposing a requirement to provide the defendant with updated medical documentation before they took any action (emphasis in opinion), on her request to be transferred to a position with fewer hours as bad faith where the defendant (a hospital, no less, words precisely in the opinion), had relevant information about her disability in their possession already.
There is no general requirement as a matter of law that a plaintiff who has already provided medical documentation must provide updated medical documentation prior to triggering any obligation on the part of the employer to continue the interactive process.
If defendant wishes to make the factual argument that this specific (emphasis in opinion), interactive process was caused entirely while they waited for updated paperwork, for them to be entitled to summary judgment, they will still have to prove that such a policy existed at Beaumont, that Beaumont in fact applied such a policy to the plaintiff and relied on that rationale to pause the interactive process, that such a policy was applied in good faith to the plaintiff under the circumstances, and/or that they clearly communicated that requirement during the interactive process.
Looking at the evidence in the light most favorable to the plaintiff, Beaumont never told the plaintiff that the medical form was necessary for the mandatory reassignment process. Instead, plaintiff was told that the form would “assist,” or “expedite,” reassignment in some undescribed way.
The EEOC also raises factual questions concerning whether a policy requiring employees to provide documentation was generally in place, thereby raising the question of why it was necessary to ask the plaintiff specifically for a new, updated medical form.
Whether a new “request form,” was actually necessary for Beaumont to make effort to transfer her to a part-time role as an accommodation is a question best left to the jury, who could find that Beaumont “unreasonably stalled,” plaintiff’s request in light of the information already in their possession.
There is also evidence in the record indicating Beaumont firmly stated that it would consider plaintiff for vacant positions despite not having updated paperwork, and that it acted as though it did not need a form, thereby raising factual issues about their argument that they required her to provide the paperwork first and relied on that rationale.
The ability to apply for a position and a request to be transferred as an accommodation are two entirely different things.
The EEOC identified multiple communications indicating that plaintiff should go ahead and apply to open positions as an accommodation, and that Beaumont did not mention to her a requirement that she first had to submit new paperwork. A reasonable jury can read that evidence as stating that plaintiff was always allowed to apply to positions to move the process along, and that medical documentation was not required to trigger an “expedited,” process for being considered. That is, she could have provided medical documentation to Beaumont at some later point while the interactive process continued in the meantime.

III

Whether The Initial Care Coordinator Position Was Vacant Is a Question of Fact

Beaumont’s arguments that the positions were not vacant at the time plaintiff submitted her updated medical form appeared nowhere in the original argument for summary judgment and therefore, is not properly brought in a motion for reconsideration.
The no vacancy argument of Beaumont fundamentally rests on the factual disputes pertaining to: 1) whether Beaumont clearly communicated to the plaintiff that it would not consider her for any open position until the moment she provided updated documentation; 2) whether such a policy in fact existed; 3) whether such a policy would properly apply to the plaintiff; and 4) whether the lack of updated medical information was the reason that Beaumont did not consider her for those positions.

With Respect to the Initial Care Coordinator Position, William Beaumont Hospital Is Responsible for the Breakdown in the Interactive Process

The undisputed evidence is that Beaumont personnel did not reject plaintiff’s candidacy for the initial care position for lack of a medical accommodation form. Instead, Beaumont personnel declined to consider the application because of the belief that the hiring manager already had two other candidates in mind.
When the interactive process is triggered but not successfully resolved, courts have to isolate the cause of the breakdown and then assign responsibility to whoever blows up the interactive process.
Since the evidence showed that the absence of a medical form had nothing to do with Beaumont’s rejection of plaintiff’s application for the first care coordinator vacancy, it is irrelevant to their liability as to that position because responsibility for cutting short the interactive process undisputedly lies with Beaumont alone.

Thoughts/Takeaways

If you are going to make a motion for reconsideration, the arguments in that motion need to have been made before that point in time.
An employer cannot pause the interactive process or unreasonably delay it when it is already on notice of an employee’s disability.
Requesting further medical documentation is permissible if used to establish that an employee’s disability is supported by the medical evidence in the first place.
Asking for excessive documentation is an indicator of bad faith. See also this blog entry.
No requirement as a matter of law exists, that a plaintiff who has already provided medical documentation must provide updated medical documentation prior to triggering an obligation on the part of the employer to continue the interactive process.
The ability to apply for a position in the ability to request to be transferred as an accommodation are entirely two different things.
An employer does not get the right to delay or not pursue the interactive process when it is already on notice of an employee’s disability.
Remember, magic words are not required to initiate the interactive process. However, also remember just what words are required can vary from jurisdiction to jurisdiction so be sure to check that.
The party that blows up the interactive process bears the ultimate responsibility.

Are Retaliation and Interference Claims Viable under the Rehabilitation Act in Employment Matters? The Sixth Circuit Says No

By William Goren on November 24, 2025

Posted in 501, 504, ADA, Constitutional law, Federal Cases, Final Federal Regulations, Rehabilitation Act, Title I, Title IX

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

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

Facts

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

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

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

III

Whether An Implied Cause Of Action Under §504 Exists

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

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

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

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

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

VII

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

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

VIII

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

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

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

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

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

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

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

Thoughts/Takeaways

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

ADA and 504 as an Alternative to §1983 in Excessive Force Cases

By William Goren on November 18, 2025

Posted in 1983, 504, ADA, Federal Cases, Rehabilitation Act, Title II

When the Federal Bar Association national convention was held in Kansas City Missouri, I was part of a panel that explored outside the box uses of the ADA. One of the panelist, Jamie Strawbridge, talked about how the ADA/504 can be an alterative to excessive force §1983 cases. The case of the week explores exactly that.

The case of the day is the estate of Ryan Leroux v. Montgomery County, here, decided on October 24, 2025, in the United States District Court for Maryland, Southern Division. This is an excessive force case which was pursued as an ADA/504 claim instead of as a §1983 claim. As usual, the blog entry is divided into categories (lots of them), and they are: facts; a reasonable jury could find that plaintiff had a mental impairment as defined by the ADA; a reasonable jury could find that plaintiff’s impairment substantially limited major life activities; a reasonable jury could find that Montgomery County knew of plaintiff’s disability and the need for accommodation; a reasonable jury could find that Montgomery County failed to provide reasonable accommodations; exigent circumstances is not a get out of jail free card in this case; defendants have not conclusively established the affirmative defense of direct threat; a reasonable jury could find that Montgomery County’s failure to reasonably accommodate proximately caused plaintiff’s death, and therefore the claims survive plaintiff’s death; a reasonable jury could find that Montgomery County discriminated against plaintiff based on his disability; a reasonable jury could find that Montgomery County acted with deliberate indifference; a reasonable jury could find that a Montgomery County official knew of the need to accommodate plaintiff and failed to act; reasonable jury could find that an officer of Montgomery County did not provide plaintiff with an accommodation and was an official with authority to correct the discrimination against the plaintiff; a reasonable jury could find that Montgomery County was deliberately indifferent in failing to train officers on federal disability law; a reasonable jury could find that the defendant officers are not entitled to public official immunity and genuine issues of material fact exists; and thoughts/takeaways.

Facts

For purposes of this blog entry, the term “plaintiff,” either refers to the person who was killed or to what his attorneys did in proving up the case.

The specific facts are in the opinion and they are quite extensive. I will try to condense it considerably in this section of the blog entry, especially given all the categories needing to be covered in this blog entry. Other facts might come up and be mentioned in the various categories of this blog entry.

Basically, you have a person with a documented history of mental illness, including paranoia, that was well-known to the Montgomery County police. The person (plaintiff), pulls into a drive-through at McDonald’s, orders his food, receives his food, but does not pay. When challenged about that, he tried to convince McDonald’s that he had paid for the food. That led to a 911 call where the situation was discussed and then put on the list of pending nonpriority calls for service. Another officer happened by and checked on the situation with the McDonald’s employee. McDonald’s employee said that the plaintiff was just sitting there and not saying much, though he was still blocking the drive-through lane. At 10:28 PM, Ofc. Brooks Inman arrived and when he checked on the situation he noticed that there was a handgun in the seat next to the plaintiff. Plaintiff was unresponsive to any of the commands issued by the officer. The officer then backed up keeping his firearm drawn and called for backup. Eventually a total of 17 officers were present at the McDonald’s. They surrounded plaintiff’s car at a distance of about 10 yards, drew their handguns, and one even trained an assault rifle on the plaintiff. What follows subsequently was disorganization by the officers with no plan at all. Eventually, a crisis negotiator radioed that he was two minutes away. A few seconds later, plaintiff again raised the gun with his right arm and several officers opened fire by firing a total of 23 shots at the plaintiff where he died after being transported to a hospital. Again, the facts are extremely extensive and go into far more detail than what is described here, and the reader is referred to the actual opinion for that. I tried to keep the facts to the critical points in the interest of space.

Plaintiff’s estate sues under §504, Title II of the ADA, and Maryland state law and NOT §1983. As typical, the defendants moved for summary judgment after discovery. The court wasn’t having it.

A Reasonable Jury Could Find That Plaintiff Had a Mental Impairment as Defined by The ADA

When assessing claims filed under the ADA, the definition of disability gets construed broadly in favor of expansive coverage. Such an approach is consistent with the amendments to the ADA whose purpose was to make it easier for people with disability to obtain protection under the ADA by focusing on whether entities complied with their obligations and whether discrimination occurred rather than on definitional matters.
Plaintiff produced sufficient evidence to show that he suffered from a mental impairment as defined by the ADA. Such evidence includes: 1) being involuntarily committed for inpatient treatment with the diagnosis of unspecified mental health disorder; 2) treating physicians checking a box saying that he had a mental disorder; 3) being discharged with a diagnosis of psychosis; 4) being prescribed antipsychotic medication; 4) plaintiff expert stating that he most likely has schizophrenia; and 5) the way he reacted during the fatal police encounter by remaining uncommunicative and unresponsive for a period of over two hours was also typical of someone with a mental illness.
The Fourth Circuit has declined to require that medical evidence is necessary to always establish a disability at the summary judgment stage, even where an alleged impairment might be unfamiliar to a lay jury.
Nothing in Title II of the ADA requires a person to be formally diagnosed with a mental health disorder before finding the person has a mental impairment.
The fact that a non-examining expert declined to formally diagnose an impairment based on the record alone does not support a finding of no disability.
The argument that a diagnosis of psychosis is not a mental impairment runs counter to federal guidance that the definition of disability must be construed broadly in favor of expansive coverage to the maximum extent permissible under the ADA.
Plaintiff produced an expert opinion indicating that the prolonged paranoia of the plaintiff as he experienced it after October 2020 is more consistent with a mental health disability rather than a one time consumption of any drugs. Further, there is no evidence that drug use played a role in the instances plaintiff put forward with respect a previous incident at a hotel and what happened at McDonald’s.

III

A Reasonable Jury Could Find That Plaintiff’s Impairment Substantially Limited Major Life Activities

In considering whether an impairment substantially limits an individual in a major life activity, the statutory text must be broadly construed in favor of expansive coverage. It is not a demanding standard to meet.
Plaintiff’s estate put forward evidence that when plaintiff was experiencing the effects of his mental health disability, it impacted his ability to think, communicate, interact with others, and speak.
Without his medication, he said he dreamt about people trying to kill him.
It is not normal to act unresponsive to the police.

A Reasonable Jury Could Find That Montgomery County Knew of Plaintiff’s Disability And The Need For Accommodation

Title II of the ADA applies to police activities and investigations.
Under Title II of the ADA, a public entity must make reasonable modifications when the entity had knowledge of a person’s disability related limitations.
A person’s need for accommodation must be clear.
A plaintiff may establish that a defendant knew of an individual’s need for accommodation by showing that the individual with a disability or a third party lucidly asked for a modification, but a specific request is not required.
A plaintiff can also demonstrate knowledge by showing that an individual’s disability and resulting need for an accommodation were obvious or apparent.
Evidence indicating that a person’s disability and need for an accommodation were obvious includes evidence that officers on the scene: 1) observed behavior suggesting that an individual suffered from a disability; 2) received training on behavior indicators associated with particular disability; or 3) received information from third parties suggesting the presence of the disability.
The court was not buying the argument of Montgomery County that officials were never told that plaintiff had a disability and plaintiff never requested an accommodation because neither action is necessary in order to establish knowledge under the ADA. Instead, to establish that Montgomery County had an obligation to provide reasonable accommodations under the ADA, all plaintiff had to show was that his disability related limitations and subsequent need for an accommodation were obvious.
Plaintiff produced evidence that County officials knew of his disability early. Specifically, a McDonald’s employee told the dispatcher that plaintiff was acting crazy. That employee also elaborated by describing abnormal behavior, i.e. refusing to exit the drive through line, stopping communicating or responding, and putting on his headphones as well as making statements that were simply not true to the McDonald’s employee.
Plaintiff’s expert on emergency response communications stated that based on the call, the call taker knew or should have known that the call for service involved a mental health component and required a modified response.
Plaintiff’s experts reported that symptoms of plaintiff’s mental illness were readily observable and obvious once officers arrived on the scene. The expert testified that plaintiff presented as mentally disorganized, with flat affect, and engaged in abnormal behavior. The expert also testified that his behavior included symptoms of catatonia, such as not moving, not talking, staring, or sluggish responses, all of which were observed by the officers on the scene. The observable nature of plaintiff’s symptoms not only supports an inference that County officials knew of plaintiff’s disability, but also to knowledge of the limitations caused by that disability and the need for an accommodation to address those limitations.
While at the scene, officers observed plaintiff’s inability to engage, answer questions, or follow basic commands. One officer even noted the abnormality of the behavior by saying that he had no idea what was going on with the guy, and it was like a suicide by cop type of thing. Another officer expressed similar sentiments. Several of the officers testified they knew there was something wrong and that this was not a normal situation. Further, after only two minutes on the scene, the commanding officer requested a dispatch of crisis negotiators.
Plaintiff’s also produced evidence that Montgomery County officers are trained on recognizing and interacting with people with mental illness. That training included information on recognizing potential symptoms of people in emotional distress, mental distress, and instructed officers that when a person with a mental illness does not comply with orders, it is entirely possible they are not intentionally ignoring orders or being defiant. The training also noted that many people with mental health disorders experience processing delays and/or may be distracted by hallucinations or other stimuli.
Montgomery County was familiar with plaintiff through past interaction. Prior encounters with the police predicated on the same individual’s suspected mental illness can imply knowledge, even if it involves separate officers in the same department.
The fact that abnormal behavior could indicate either a mental illness or indicate substance use is not enough to allow an entity to be free and clear of knowledge of a disability under the ADA.
Officers at the scene were not operating under the assumption that plaintiff’s abnormal behavior was due to substance use.
All an individual has to do is demonstrate obvious limitations and a clear need for accommodation. Where the circumstances indicate that an individual has an obvious need for accommodation, the ADA shifts the burden of compliance on to public bodies and their employees.
In a footnote, the court noted that in the Fourth Circuit satisfying the knowledge requirement means a plaintiff has to show: 1) the physical or mental disability related limitation is known; and 2) the need for accommodation is clear. That is, it is the need for the accommodation and not the specific necessary accommodation itself that must be obvious. Many other circuits agree with this principle.

A Reasonable Jury Could Find That Montgomery County Failed to Provide Reasonable Accommodations

A modification is reasonable if it is reasonable on its face or ordinarily in the run of cases and does not cause an undue hardship.
What constitutes a reasonable accommodation during a police investigation is a question of fact and varies according to the circumstances.
Exigent circumstances are considered as part of the reasonableness of the accommodation rather than as a separate inquiry. The existence of such circumstances does not excuse officers from providing reasonable accommodations.
When the County first became aware of plaintiff’s abnormal behavior, the McDonald’s employee stated that the plaintiff was not a danger to those around him. At that point, plaintiff’s expert stated that Montgomery County knew or should have known that plaintiff was exhibiting disability related limitations and required an accommodation, thereby triggering the County’s obligation to accommodate under the ADA. So, given the content of the call and the opinions of the experts, a reasonable jury could find that Montgomery County had a responsibility to provide a reasonable accommodation at the 911 call stage but failed to do so.
A reasonable jury could find that the accommodations provided were ineffective or unreasonably delayed and therefore, inadequate under the ADA. For example, the presence of trained officers in mental health awareness was not provided until 75 minutes after the initial 911 call. Once those officers were on the scene, they did not adhere to their training thereby providing accommodation in name only.
Nearly all of the mental health trained officers who were asked about their training could not answer any questions about the content of the training.
Asking for crisis negotiators was arguably just too late as the crisis negotiators were not asked for until 97 minutes after the 911 call and 21 minutes after the first officer arrived on the scene.
Unreasonable delay may constitute a denial of an accommodation. While relatively short delays do not support such an argument, the circumstances surrounding a delay are part of a larger reasonableness inquiry and have to be considered within the context of an individual incident.
A delay is more likely to be reasonable when an entity is actively working towards securing an accommodation or when an entity has no reason to believe harm may follow from a brief delay.
If a genuine factual dispute exists surrounding such a delay, that question is one for the factfinder to figure out.
Prior to the event or a request for a crisis intervention team, no officer attempted to secure such an accommodation, and the scene was tactical chaos with 17 officers without any clearly assigned roles and without any coordinated response plan or any form of organization of the scene.
County officials had good reason to believe that harm may come to the plaintiff if the situation continued.
Plaintiff produced evidence that the County’s failure to call for negotiators and implement mental health accommodation sooner was counter to Montgomery County’s own policies and training.

Exigent Circumstances Is Not A Get Out Of Jail Free Card In This Case

The behavior of officers at the scene undercuts any argument that exigent circumstances were involved. In particular: 1) in the 34 minutes between when the first officer on the scene arrived and plaintiff’s death, groups of officers milled around making small talk or joking around; 2) the commanding officer on the scene walked around the scene for 10 minutes without any sense of urgency and almost never giving any proactive instruction to anyone; 3) throughout this period, plaintiff was calm and had made no threats or shown any signs of violence or escalation; 4) a Sgt. described the scene as secure, noting that innocent were out of the way and the McDonald’s was sealed off; and 5) plaintiff’s expert in police training in crisis intervention stated that based on plaintiff’s behavior, the environment, and the context of the situation, the gun in the seat next to plaintiff did not pose an immediate threat for much of the time.
When plaintiff pointed the gun at officers, that event occurred well after the officers obligation to provide a reasonable accommodation arose, which was over 90 minutes after the 911 call and 18 minutes after officers arrived on the scene.
Plaintiff’s action did not impact the officer’s ability to summon mental health resources before he raised the weapon.
17 officers were on the scene, most without any clearly assigned roles.
What constitutes a reasonable accommodation is a question of fact.

VII

Defendants Have Not Conclusively Established The Affirmative Defense Of Direct Threat

In order to determine whether an individual poses a direct threat per 28 C.F.R. §35.139, a public entity must make an individualized assessment, based on a reasonable judgment relying on current medical knowledge are on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk.
When summary judgment is sought on an affirmative defense, the movant must conclusively establish all essential elements of that defense.
Defendant must conclusively show that Montgomery County conducted an individualized inquiry to ascertain the nature of the risk, the probability that potential injury will occur, and whether modifications would mitigate that risk.
Plaintiff produced plenty of evidence that the County did not utilize resources available-either the County’s mental health resources or the resources available to officers by way of their laptops in their cruisers-in order to learn more about the plaintiff, past police involvement, or his mental health history, all of which could have been easily found if they had done so.
More than one officer stated that they did not consider calling any mental health resources to the scene.
Defendants simply have not conclusively shown that plaintiff posed a direct threat that could not be eliminated through reasonable modifications, nor that the County made an individualized assessment based on the best available objective evidence.

VIII

A Reasonable Jury Could Find That Montgomery County’s Failure to Reasonably Accommodate Proximately Caused Plaintiff’s Death, and therefore the claim survived the plaintiff’s death.

In the Fourth Circuit as well as in other circuits, courts have tended to hold that federal common law rather than state law, governs the survival of claims for compensatory damages under the ADA.
Remedial actions survive the death of a plaintiff.
An action for compensatory damages under the ADA is remedial and not punitive in nature.
Plaintiff produced evidence demonstrating that had plaintiff’s disability been accommodated in a reasonably timely manner, the incident at McDonald’s would not have resulted in plaintiff’s death.

A Reasonable Jury Could Find That Montgomery County Discriminated Against Plaintiff Based On His Disability

Failure to provide accommodations may constitute a form of disability discrimination.
Failure to accommodate claims focus on whether a defendant failed to respond reasonably to the individual’s disability and therefore harms the victim.
In the context of a failure to accommodate claim how plaintiff’s own behavior impacts the reasonableness of an accommodation is considered within the greater totality of the circumstances involved.

A Reasonable Jury Could Find That Montgomery County Acted with Deliberate Indifference

Citing to cases we have previously discussed in our blog, here and here, the court noted that a plaintiff may demonstrate discriminatory intent through a showing of deliberate indifference. A position most of the circuits have taken as well.
For a plaintiff to establish deliberate indifference, a plaintiff must show in the Fourth Circuit: 1) an ongoing or likely violation of a federally protected rights; 2) knowledge of a substantial risk of deprivation of those rights; and 3) a failure to act to resolve that risk.
Deliberate indifference is an actual notice standard and requires a deliberate or conscious choice to ignore something. In other words, an official have to know of the dangers to federal rights and none of the less disregard them. That official must know of the facts from which a federal rights violation could be inferred and then actually draw the inference from that.

A Reasonable Jury Could Find That A Montgomery County Official Knew Of The Need To Accommodate Plaintiff And Failed To Act

When a risk is so obvious that an official must have had knowledge, that is sufficient to get a deliberate indifference question to a jury.
Obvious goes beyond what a reasonably prudent person would know, but rather looks to whether a risk was so obvious they must have known.
Liability can be imputed to a county only when a county official with authority to address the discrimination knew of the likely federal rights violation but failed to act.

XII

Reasonable Jury Could Find That An Officer Of Montgomery County Did Not Provide Plaintiff With An Accommodation And Was An Official With Authority To Correct The Discrimination Against The Plaintiff

The strongest argument for deliberate indifference is against defendant Ofc. Inman.
Inman was one of those people with mental health awareness training and must have been exposed to indicators of mental illness. What the officer encountered at the scene should have been put him on notice that he was dealing with a person with significant mental health issues and would have to adjust his behavior accordingly. In fact, he repeatedly remarked to others about plaintiff’s behavior.
Inman directly observed and commented on the obvious impact of plaintiff’s disability, including his abnormal behavior, inappropriate response to police present, and plaintiff’s inability to effectively communicate or respond to police commands.
Rather than implement de-escalation tactics, officer Inman engaged in escalatory behavior by holding the plaintiff at gunpoint, screaming at him, and suggesting that other officers, “Pepper spray his ass.”
Inman did not take any affirmative steps to implement any plan or accommodations and in fact asked people multiple times what was the plan and what did everybody else wants to do. Accordingly, the officer did not make good faith effort to remedy plaintiff’s problems either by applying his training, implementing de-escalation tactics, or calling for mental health supports.
An official for the purpose of imposing liability on an entity like Montgomery County, is a person who has some discretion at a key decision point in the administrative process.
Plaintiff produced evidence that Ofc. Inman had both the discretion at key decision points and the authority to implement accommodations on the night plaintiff was killed. He was empowered to call for crisis negotiators or implement other accommodations. He also had mental health awareness training and was the primary officer tasked with determining if other mental health resources were needed.

XIII

A Reasonable Jury Could Find That Montgomery County Was Deliberately Indifferent in Failing To Train Officers On Federal Disability Law

Plaintiff put forward evidence indicating that Montgomery County failed to uniformly train their police officers on disability law.
Multiple officers testified in the deposition that they either did not receive training on disability law or they did not remember the training.
While Ofc. Inman did receive ADA training, he did not receive it until he had been with the Montgomery County Police Department for over nine years.
While the training included several sessions on identifying and interacting with individuals with mental health disabilities, it provided no information on disability law or on an officer’s statutory duty to provide reasonable accommodations.
A jury could reasonably find that Montgomery County’s failure to uniformly or comprehensively train officers on their obligations under the ADA and the Rehabilitation Act present an obvious potential for violations of federal rights.
Without specific training on disability law, there is no reason to assume that an officer knows how to comply with the sensitive and nuanced obligations imposed upon him by the ADA and the Rehabilitation Act.
Training on mental illness generally is not a substitute for training on the sensitive and nuanced obligations that police officers under the ADA and the Rehabilitation Act.
Insufficient evidence exists that the mental illness trainings informed officers of their statutory obligations to provide individuals with mental health disabilities with reasonable accommodations when necessary.

XIV

A Reasonable Jury Could Find That The Defendant Officers Are Not Entitled To Public Official Immunity And Genuine Issues Of Material Fact Exists

Maryland law provides that an official of a municipal Corporation when acting in a discretionary capacity without malice and within the scope of their employment or authority, is immune as an official or individual from any civil liability for the performance of the action. However, no such immunity exists for intentional torts, acts committed with actual malice, or acts that are grossly negligent.
Gross negligence is defined as an intentional failure to perform a clear duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the making of any effort to avoid them.
The question of whether an officer acted with gross negligence or malice is generally a question for the jury.
Plaintiff need not show malice or gross negligence as to the use of force, but rather as to their conduct across the police response as a whole.
A reasonable jury could find that the officers were grossly negligent by failing to implement de-escalation tactics and failing to attempt to secure mental health resources for the plaintiff despite the readily observable nature of his disability and his related limitations.
All of the officers received mental health awareness training where they should have been able to recognize that mental health issues were involved. That training also encouraged officers facing this kind of situation to consider reaching out to the crisis center in order to see if they have any history with the individual that would be useful in diffusing the current crisis. The training also talked about how interaction with people with significant mental health issues can be entirely different than interaction with those without such issues. Finally, Montgomery County’s own expert stated that it would be appropriate to have a crisis negotiator involved in the scene when the initial levels and initial efforts of communication from the responding officers to an individual in an agitated state or in a moment of crisis had proven unsuccessful.

Thoughts/Takeaways

This case is an excellent example of how a plaintiff attorney might forgo entirely §1983 in favor of ADA Title II claims and §504 claims. One advantage to doing it that way, is to circumvent qualified immunity arguments. The two disadvantages are: 1) that it is very much an unknown as to what kind of damages might be available; and 2) causation is different between the ADA and the Rehabilitation Act.
While the Rehabilitation Act and the ADA get interpreted in the same way, causation is not the same with the ADA being “by reason of,” and the Rehabilitation Act being “solely by reason.” The distinction as we discussed here, matters.
Medical evidence is not always necessary to establish a disability at the summary judgment stage even where the particular impairment at issue might be unfamiliar to a lay jury.
A formal diagnosis is not necessary in order for a person to have a disability under the ADA.
Title II of the ADA applies to police activities and investigations. See also this blog entry.
A plaintiff doesn’t have to make clear that they have a disability or request an accommodation if the disability related limitations and subsequent need for an accommodation are obvious.
I have noticed in my practice that police officers are routinely trained on mental health awareness but are lacking in training with respect to their obligations under the ADA and the Rehabilitation Act. It has been particularly noticeable in the area of service animals (full disclosure: training on what the ADA does and does not require is a huge part of my practice), but it also impacts excessive force training as well.
I previously discussed in this blog entry how the training on excessive force is using a case that would in all probability violates the ADA. This is a case that illustrates how police department need to think beyond the traditional excessive force situations, and expand their thinking to how to deal with persons with disabilities in terms of the obligations they have under the ADA and §504 of the Rehabilitation Act.
Exigent circumstances are not a get out of jail free card for police departments. You have to look at the overall circumstances involved.
Unreasonable delay in granting an accommodation is actionable.
I still have no idea what it means that a modification is reasonable if it is reasonable on its face or ordinarily in the run of cases.
Direct threat is an affirmative defense and all of its elements must be conclusively shown by the party setting forth the defense.
It is going to be very interesting to see how the court deals with damages going forward. This decision says deliberate indifference has been shown or certainly arguably has been shown. However, that doesn’t answer the question because the question is still what kind of compensatory damages can the plaintiff receive. We know on the Rehabilitation Act side that emotional distress damages are out per Cummings, here. We also know that many courts are saying that emotional distress damages are also out with respect to Title II cases. It is an open question to eventually be decided by the Supreme Court whether Title II of the ADA prohibits emotional distress damages because it is not spending clause litigation unlike the Rehabilitation Act. The Supreme Court in Cummings specifically reserved that question for a later time. If Cummings does apply, what other kinds of damages might there be. One argument might be lost opportunity. There may be other arguments as well. Damages under state law may be another way to get significant damages, such as we discussed here. How much interest plaintiff side lawyers will have in pursuing ADA/§504 claims as an alternative to §1983 claims will very much depend on how the courts wind up looking at damages.
Survival of ADA claims is a federal question, and it depends upon whether the claim is remedial in nature or not. Compensatory damages are remedial in nature. See also this blog entry.
It is also an open question on what the courts are split as to whether vicarious liability exists to a Title II entity when its employees violate the ADA. In the 11^th Circuit, here, and arguably in the Fourth Circuit as well per this case, liability only happens if a an official with authority to address the discrimination knew of the likely federal rights violation but failed to act. There are cases saying that vicarious liability is possible as well. So, be sure to check your jurisdiction.

Have no Idea as to Why Defense Side Attorneys Keep Defending on the Grounds that an ADA Disability Does Not Exist

By William Goren on November 10, 2025

Posted in ADA, Federal Cases, Final Federal Regulations, Title I

After the amendments to the ADA, it doesn’t make any sense for an attorney to defend on the grounds that a disability doesn’t exist, with a notable exception being where the major life activity of working is involved. It should be a rare situation where plaintiff alleges the major life activity of working considering all of the other options available to a plaintiff after the amendments. Our case of the day illustrates how defending on the ground that an ADA disability doesn’t exist is very much an uphill climb. The case is Edwards v. Shelby County, Tennessee decided by the Sixth Circuit on November 7, 2025, here. It is a published decision. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning affirming the disability discrimination claim by rejecting defendant’s claim that night blindness was not a disability; court’s reasoning affirming the retaliation verdict; court’s reasoning affirming the failure to accommodate verdict by rejecting defendant’s claim that asthma was not a disability; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

Facts

In 2020, Shelby County hired Edwards as a contact tracer. In December 2020, Shelby County promoted her to the position of environmentalists inspector, which required some nighttime driving. Edward managed the nighttime issues from January to March 2021 but not easily due to her vision impairment that made seeing at night very difficult. Over time, this night vision issue worsened so as to make night driving impractical. For example, the brightness of other cars lights left her unable to see, streetlights and traffic lights blinded her, reading road signs were difficult or impossible, and she could only see off turns from the expressway when she got right next to them. Since this to her mind was not the result of an eye injury or not an eye disease, she did not disclose this condition on her preemployment questionnaire.

Edwards also has asthma and did disclose that in her preemployment physical examination. When she lost access to her prescription temporarily, she had a severe flareup of the asthma where she could not sleep, had extreme difficulty breathing, and even struggled to move from her bedroom to her bathroom. On September 15, 2021, Edwards exhausted and still laboring to breathe, called her manager at 4:30 AM in advance of a shift a few hours later to let her know she was unable to come to work that day. Shelby County had a policy that notification had to be at least one half hour before a person was supposed to come in. Even so, her supervisor demanded that she come into work, and she did go into work that day.

On October 4, 2021, her supervisor reassigned Edwards to a new shift that would involve nighttime driving. Edwards told her supervisor that she had night blindness and would need to drive over 20 miles home in the dark, which raised not only medical but also personal safety concerns as a woman working at night. The morning after her reassignment, her supervisor repeatedly called her to confirm whether she was coming to work that day for her shift. Edward said she would come to work but under protest. In terminating Edwards, Shelby County relied solely on information provided by her supervisor despite the fact that Edwards had no prior disciplinary record for similar or related conduct and nothing being mentioned of Edwards disclosures to her supervisor regarding her night blindness. Edwards offered to provide a Dr.’s note regarding her difficulty driving at night.

Without receiving her right to sue letter, Edwards filed suit on October 5, 2022 for violations of §1983 and the ADA. Once she received the right to sue letter, she filed an amended complaint alleging failure to accommodate her asthma, discrimination based on her night blindness, and retaliation for having requested an accommodation for night blindness. While the District Court dismissed the §1983 claims, it kept in the ADA claims, which proceeded to trial. The jury wound up finding for Edwards on her failure to accommodate claim, disability discrimination claim, and retaliation claim, and Shelby County appealed.

Court’s Reasoning Affirming the Disability Discrimination Verdict by Rejecting Defendant’s Claim That Night Blindness Was Not a Disability

Disability discrimination rooted in circumstantial evidence follows McDonnell Douglas, which involve showing that: 1) a plaintiff is disabled or regarded as having a disability; 2) a plaintiff is otherwise qualified for the position; 3) a plaintiff suffered an adverse action; 4) her employer knew or had reason to know of her disability; and 5) her position remained open or she was replaced.
While it is unclear which of the prongs of the definition of a disability under the ADA the jury applied to Edwards, it doesn’t matter because enough evidence was presented for a reasonable jury to conclude that she had an actual impairment that substantially limited the major life activity.
The ADA and its implementing regulations at 29 C.F.R. §1630.2(h)(1), define a physical or mental impairment as including any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems.
The determination of whether a substantial limitation exists is a relative one assessed by comparing the individual’s abilities to those of the general population, 29 C.F.R. 1630.2(j)(1)(ii).
The regulations consistent with the Amendments Act clarify that an impairment need not prevent or significantly or severely restrict the performance of a major life activity in order to be considered substantially limiting. In fact, the required level of functional limitation to qualify as an impairment under the ADA is rather low.
The regulations, consistent with the amendments to the ADA, caution that the term “major,” is not to be interpreted strictly so we have to create a demanding standard for disability. 29 C.F.R. §1630.2(i)(2).
The Amendments Act lowered the threshold for establishing disability by focusing the inquiry more on whether discrimination occurred rather than on whether a plaintiff meets a stringent definitional threshold. The ADA also rejects categorical approaches to disability determinations and favors individualized evaluations of whether an impairment substantially limits a major life activity.
While pre-amendment cases went in a completely different direction, the amendments to the ADA mean that the substantial limitation inquiry requires an evaluation of how impairment affects an individual’s daily life compared to the general population per 29 C.F.R. §1630.2(j)(1)(ii). The standard is very generous and need not significantly or severely restrict a major life activity to qualify as substantially limiting. Accordingly, plaintiff’s night blindness could constitute a substantial limitation.
Whether driving is by itself a major life activity under the ADA is not the point. One of the requirements of plaintiff’s job was to drive at night. Driving is inherently dependent on the ability to see, and seeing is a major life activity expressly recognized by the ADA. So, the proper focus is on the plaintiff’s impairment substantially limiting her ability to see.
In plaintiff’s case, most people can safely navigate, drive, or engage in outdoor activities at night but the plaintiff cannot do that. United States Circuit Courts of Appeals around the country have reached similar conclusions when faced with similar facts. These cases also display an avoidance of categorical rulings about whether night blindness substantially limits a major life activity of a particular individual, and focus instead on how the impairment affect the individual in context. Accordingly, substantial limitations on night vision may serve as strong evidence of a substantial limitation on the major life activity of seeing.
The court holds that the jury was not unreasonable in finding based on the evidence presented at trial, that plaintiff’s night blindness constituted a disability insofar as it substantially limited her ability to see.
Shelby County’s argument that plaintiff drove sometime does not change the analysis because she drives at night only when she has no alternative, such as when caring for her mother with Alzheimer’s, or needing food, or needing medication. It doesn’t matter in any event because the ADA does not require an individual to be entirely unable to perform a major life activity in order to qualify as a person with a disability. A person who can technically perform an activity, but with difficulty, pain, or risk, may still be substantially limited under the ADA.
The relevant question is not whether plaintiff is capable of driving, but whether her condition substantially limits her ability to see, especially under conditions where most people have no difficulty.
Whether an individual’s impairment substantially limits a major life activity under the ADA is a fact driven inquiry with credibility determinations lying squarely within the province of the jury.
Edwards testified that her night blindness made it difficult to see surrounding traffic in her mirrors, read road signs and exits, and detect barricades. She also described secondary effects, including increased anxiety that interfere with her concentration, particularly after exposure to bright lights. She further explained that during those periods, she struggled to read a restaurant menu. Finally, she testified that her condition had been diagnosed by a doctor, had worsened over time, and impaired the sensory function of her eyes.

III

Court’s Reasoning Affirming the Retaliation Verdict

To make a case for retaliation, a plaintiff has to show: 1) she engaged in activity protected under the ADA; 2) her employer knew of that activity; 3) her employer took an adverse action against her; and 4) there was a causal connection between the protected activity and the adverse action.
Edwards presented evidence to the jury that she made Shelby County aware of her night blindness and that she otherwise requested accommodations in good faith. She testified that she had informed her supervisor that she could not work the night shift because she can’t see well while driving at night and has night blindness. The jury also heard testimony about her medical history and prior treatment for night blindness, including the description of symptoms and the difficulty she experiences seeing in driving in low light conditions. She further testified that although she occasionally drove at night for work in the past, those instances rarely occurred and typically involves assistance from a coworker and one or two police escorts.
On the record, a jury could reasonably conclude that plaintiff’s request was grounded in the concern about her ability to drive safely at night even if it was also concerned about crime and personal safety.
The County did not meet its burden of showing that no reasonable jury could have found that Edwards engage in protected activity and was retaliated against for doing so.

Court’s Reasoning Affirming the Failure To Accommodate Verdict by Rejecting Defendant’s Claim That Asthma Was Not a Disability

Failure to accommodate claims use the direct evidence test, which means: 1) the plaintiff bears the burden of establishing that she is a person with a disability; 2) the plaintiff bears the burden of establishing that she is otherwise qualified for the position despite his or her disability: a) without accommodation from the employer; b) with an alleged essential job requirement eliminated; or c) with the proposed reasonable accommodation; and 3) the employer bears the burden of proving that a challenge job criterion is essential, and therefore a business necessity, or that a proposed accommodation imposes an undue hardship upon the employer.
The ADA does not require a condition to be permanent or continuously symptomatic in order to qualify as a disability.
Impairments that occur episodically or intermittently may still be disabilities if when active, they substantially limit a major life activity. 42 U.S.C. §12102(4)(D).
Under the Amendments Act, the inquiry into whether a condition is substantially limited must be made without regard to whether medication can ameliorate the condition. 42 U.S.C. §12102(4)(E)(i).
Edward presented sufficient evidence to support the jury’s findings that her asthma impose real limitations on one or more major life activities. She testified that when her asthma was triggered her asthma restricted her ability to breathe, sleep, and walk short distances. Common irritants such as perfumes or smoke predictably provoke asthma attacks forcing her to rely on her rescue inhaler.
It is not permissible to impose as Shelby County suggested a higher burden on plaintiff than what the ADA requires, by demanding that Edwards show “severe” limitations or constant symptoms. Such an approach conflicts with the ADA and its implementing regulations, which make clear that a limitation need not be severe—only “substantial.” See, e.g., 29 C.F.R. §1630.2 (j)(1)(ii).
The implementing regulations explicitly reject a severity-based standard for disability. The implementing regulations are consistent with the congressional rebuke—in the form of the ADAAA—of “years of court decisions” that applied restrictive and narrow standards in defining “who qualifies as an individual with disabilities.

Thoughts/Takeaways.

Whether McDonnell Douglas will remain a thing in the future, is a matter of hot debate. See this blog entry.
I have seen cases that McDonnell Douglas is not a thing when it comes to trial despite what this decision says as it applies McDonnell Douglas in the context of a trial.
Figuring out whether a diagnosis is a disability is, at this decision says, the wrong way to go about it. The question is whether a physical or mental impairment exists that substantially limits one or more major life activities. Focusing on a diagnosis is too narrow. Also, a diagnosis needs to relate to a major life activity and doesn’t stand by itself.
The required level of functional limitation to qualify as an impairment after the amendment to the ADA is a low one.
The ADA always requires an individualized analysis.
I do see attorneys from time to time and even courts rely on pre-amendment cases with respect to determining what a disability is. That is simply a fundamentally flawed approach that is being rejected by the courts in just about all situations, except for the major life activity of working.
Defending a case on the grounds that a disability doesn’t exist after the Amendments Act is (with apologies to the Borg of Star Trek), almost always futile, though exceptions do happen.
Whether a failure to accommodate claim requires an adverse action, which is not an issue in this case, is also a matter for considerable debate. A strong argument can be made after Muldrow that failure to accommodate cases for all essential purposes do not require an adverse action. See this blog entry.
The direct evidence test the court uses with respect to how to go about proving a failure to accommodate claim is a bit hard to decipher. Under the ADA, an employer does not have to eliminate an essential job function. Therefore, the only way to read the direct evidence test posed by the court properly is to say that the plaintiff can argue that they could perform a particular job without one of the essential functions listed in the job description. If the plaintiff makes that argument, it is then up to the employer to prove that the particular function of the job at issue was essential. Any other reading, i.e. suggesting that an employer could eliminate an essential function of the job or has the obligation to, just doesn’t make sense.
HR needs to do independent investigations and not just rely on supervisor reports prior to terminating a person.
A plaintiff needs a right to sue letter from the EEOC before proceeding in the courts with an employment disability discrimination claim. Whether that right to sue letter can be obtained before the time the EEOC has to complete an investigation of the claim without encountering a failure to exhaust defense is an open question and something to be considered by plaintiff’s counsel at the appropriate time.
I know of attorneys on the plaintiff side that prefer not to try their ADA case it to a jury due to the law’s complexity. Such a calculation by plaintiff counsel most certainly depends on a myriad of factors.
A request for a disability related reasonable accommodation is still valid even a part of the reason for the request is based upon a non-disability-related concern.
The decision is published.

In Architectural Barrier Litigation, Plaintiff’s Motivation Doesn’t Matter if Plaintiff Has Transacted Business

By William Goren on November 3, 2025

Posted in ADA, Federal Cases, State Statutes, Title III

I am very regular about posting blog entries for the week. I have rarely missed doing that over the 14 years I have been doing this. I do have a good explanation for missing last week. My father died a week ago today, and I was away for funeral events. By any objective measure he lived a very full and long life. He definitely would not have wanted me to not leave blogging alone for a considerable length of time, because I enjoy doing it so much. So, we are back on track this week.

The blog entry for the week is the case of Gilbert v. 7-Eleven, Inc., here, a published decision decided by the Ninth Circuit on October 24, 2025. One of the reasons I picked this case to blog on, is that I have seen media reports on it. After reading the case, I am not sure the media reports I have seen got it right. So, I wanted to take a crack at it, especially since the legal principles involved are procedurally important. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that the removal of architectural barriers by the defendant was readily achievable; court’s reasoning that Gilbert’s full and equal access to the facility was denied; court’s reasoning that Gilbert has standing to pursue an Unruh Act violation; court’s reasoning that Gilbert’s motivation for visiting the store was irrelevant; court’s reasoning rejecting 7-Eleven’s argument that plaintiff must have a bona fide intent to be a customer in order to have standing under the Unruh Act; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

Facts (Taken Directly from the Opinion)

In August 2021, Gilbert drove his wheelchair-accessible van to a 7-Eleven convenience store in Rio Linda, California. 2 During this visit, the van-accessible parking space was occupied, so Gilbert parked in an adjacent regular parking space. Using his prosthetic leg, Gilbert walked behind the vehicle parked in the van-accessible space and up the sidewalk curb ramp from the stall access aisle to the sidewalk in front of the store. Because of his balance issues, Gilbert had some trouble walking up the sidewalk curb ramp, which had an “excessive and uneven slope.” He was also “tired because of the ‘energy’ he had to expend to get into 1 After Gilbert’s death in July 2024, his successors in interest were substituted as the relevant parties on appeal. We remand to the district court to address any issues raised by the substitution. 2 We summarize the district court’s factual findings, which are undisputed on appeal. 6 Gilbert v. 7-Eleven, Inc. the store.” Once inside, Gilbert purchased items from the store.

Gilbert sued 7-Eleven under the ADA and Unruh Act two months later. 3 In relevant part, he asserted that 7-Eleven discriminated against him in violation of the ADA by failing to remove architectural barriers where such removal was readily achievable, and by denying him “full and equal enjoyment” of its store based on his disability. Gilbert sought injunctive relief under the ADA to remove these barriers. He also alleged that this ADA violation violated the Unruh Act, under which he sought statutory damages. After Gilbert filed this lawsuit, 7-Eleven remodeled the parking lot and entryway. As a result, the store now has an ADA-compliant van-accessible parking stall, access aisle, curb ramp, and entry walkway.

The district court held a two-day bench trial and concluded that “[d]uring his visits to the [s]tore, Gilbert personally encountered a lack of accessible route of travel from the designated accessible parking to the [s]tore entrance” because of several different violations of the ADA Accessibility Guidelines. The district court further concluded that although 7-Eleven’s voluntary removal of the challenged barriers mooted Gilbert’s claim for injunctive relief under the ADA, Gilbert “established that 7-Eleven violated the ADA with regard to the route of travel from the designated accessible parking to the [s]tore.” Because a violation of the ADA constitutes a violation of the Unruh Act, see Cal. Civ. Code § 51(f), the district court awarded 3 Gilbert also asserted a violation of California’s Health and Safety Code, but the district court ruled for 7-Eleven on that claim. Because Gilbert does not appeal that ruling, we do not discuss it. Gilbert v. 7-Eleven, Inc. 7 Gilbert $4,000 in statutory damages, see Cal. Civ. Code §§ 52(a), 55.56. 7-Eleven appealed.

Court’s Reasoning That the Removals of Architectural Barriers by the Defendant Was Readily Achievable

In the Ninth Circuit, the plaintiff bears the initial burden of articulating a plausible proposal for barrier removal, the costs of which on its face do not clearly exceed its benefits. However, the defendant bears the ultimate burden of persuasion, that is proving barrier removal is not readily achievable.
7-Eleven concedes that it voluntarily altered its premises to comply with the ADA after Gilbert filed his action. 7-Eleven also did not present any competing evidence to meet its burden of persuasion.
7-Eleven’s voluntary remodel demonstrates that the barrier removal was readily achievable. So, Gilbert did not have to do anything else, and it doesn’t matter that he did not provide evidence to satisfy his initial burden.

III

Court’s Reasoning Back Gilbert’s Full and Equal Access to the Facility Was Denied

Since the ADA accessibility guidelines outline the technical standards required for full and equal enjoyment, if a barrier violates those standards related to a plaintiff’s disability, that barrier automatically impairs the plaintiff’s full and equal access, which constitutes discrimination under the ADA.
Since the record plainly shows that Gilbert personally encountered barriers relating to her disability as a mobility impaired individual using a prosthetic leg and wheelchair to get around, the district court properly held that Gilbert established an ADA violation.

Court’s Reasoning That Gilbert Has Standing to Pursue an Unruh Act Violation

Standing under the Unruh Act is broad.
An individual personally encountering an ADA violation while transacting with a brick-and-mortar business has standing to bring an Unruh Act claim.
Gilbert personally encountered a construction -related ADA violation while purchasing items from 7-Eleven’s store. As such, that was all Gilbert needed to establish standing under the Unruh Act.

Court’s Reasoning That Gilbert’s Motivation for Visiting the Store Is Irrelevant

Nothing in the Unruh Act or in any case interpreting it, bars a claim by a plaintiff who can show injury (the encountered alleged discrimination when they transacted with the defendant’s business), just because they were motivated by a desire to initiate litigation.
Whether motivation matters, is a question for the legislature, and the California legislature has taken no steps with respect to that issue.
Gilbert’s motivation in initiating litigation has no bearing on her standing under the Unruh Act.

Court’s Reasoning Rejecting 7-Eleven’s Argument That Plaintiff Must Have A Bona Fide Intent To Be A Customer In Order To Have Standing

Motivation and intent are not synonymous.
In a footnote, the court noted that when California amended the Unruh Act to deal with serial plaintiffs, it did not revise the damages available, but rather it set forth additional procedural hurdles.
Whether Gilbert desired to initiate litigation does not undermine the fact she actually purchased items from the store.
California Supreme Court has said that a plaintiff has standing where that plaintiff had transacted with a defendant and has been subjected to discrimination under the Unruh Act.
The California Supreme Court has made clear that it does not require a plaintiff to show they have a bona fide intent to use the defendant’s services where the plaintiff actually transacted with the defendant’s business.
Any intent element that has been discussed by the California Supreme Court acts as a substitute for either completing a transaction or presenting oneself for services at a brick and mortar store and not as an additional requirement.
Gilbert showed that she personally encountered a construction-related violation at a place of public accommodation and experienced difficulty due to that violation.
Requiring a plaintiff to also (emphasis in opinion), show that they visited the business with intent to use its services in order to establish standing is inconsistent with the plain text of the Unruh Act.
Under the Unruh Act, a plaintiff is denied full and equal access if the plaintiff personally encountered the violation on a particular occasion, or (emphasis in opinion), the plaintiff was deterred from accessing a place of public accommodation on a particular occasion.
If a plaintiff personally encounters a violation, the Unruh Act requires the plaintiff to show that they experienced difficulty, discomfort, or embarrassment because of the violation, but it does not require any showing of intent. In other words, where a plaintiff personally encounters construction -related accessibility violations, they need to show they were affected by the violation, but they do need to show they intended to use the defendant’s services on a particular occasion.
Court cannot add an intent requirement without going against the broad determine and remedial purposes of the Unruh Act and California’s separation of power principles, which mandate that courts refrain from creating extra-statutory barriers to statutory remedies.
It is unnecessary to add a bona fide intent requirement for purposes of standing requirements in a case like this because it is obvious that Gilbert had a concrete and actual interest that was not merely hypothetical or conjectural.
The Ninth Circuit has never held that intent was required for standing under California law.

VII

Thoughts/Takeaways

When it comes to architectural barriers, the Americans with Disabilities Act Architectural Guidelines act as a strict liability statute. Outside of architectural barriers, Title III does not work that way.
I have no idea how you could assess whether the costs of barrier removal on their face does not clearly exceed its benefits.
Barrier removal looks to the entire resources of the particular entity.
7-Eleven remediated the problem in a hurry in order to eliminate the plaintiff’s ability to seek injunctive relief. However, California has the Unruh Act, so the plaintiff was still entitled to statutory damages and to attorney fees.
Intent to use a store, actually using that store, and the motivation for going into that store to make a purchase, are entirely different concepts. The distinction matters for purposes of standing.
Title III regulations. 28 C.F.R. §36.304(b), (c), talks about readily achievable barriers and the priority for addressing removal of those barriers.
7-Eleven is lucky that the plaintiff did not suffer personal injuries because it would be quite possible, depending upon the State, including Georgia and most probably California as well, that the plaintiff could use the lack of ADA compliance for the ramp as a basis for a negligence per se claim, as we discussed here.

Let’s Count the Ways Alcoholism is a Disability

By William Goren on October 21, 2025

Posted in ADA, Federal Cases, Title I, Title II, Title III

There is a lot of confusion out there about whether alcoholism is a disability. Illegal use of drugs gets exempted from the ADA but alcoholism is a different story. True, you can evaluate a person engaged in excessive use of alcohol in terms of performance as if the alcohol use doesn’t exist, but that is an entirely different matter from whether it is a disability. The case of the day explores how alcoholism is an ADA disability in several different ways. It also illustrates how state law and federal law on disability discrimination don’t always match up. The case is Hughes v. Certified Flooring Installation, Inc., decided on October 7, 2025, by the Eastern District of Kentucky Northern Division, here. As usual, the blog entry is divided into categories, and they are: facts; court’s reasoning that plaintiff plausibly alleged her alcoholism constitutes a disability under the ADA; court’s reasoning that plaintiff’s alcoholism, when inactive, constitutes a disability; court’s reasoning that plaintiff’s employer regarded plaintiff as disabled; court’s reasoning that plaintiff failed to state a claim under the Kentucky Civil Rights Act; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

Facts

Plaintiff is a recovering alcoholic and has been so for several years prior to beginning work at her employer. While in the throes of alcoholism, she had trouble engaging in daily activities such as concentrating, sleeping, working and taking care of herself. Eventually, she sought and received treatment for alcohol addiction.

Even 19 years sober, her alcoholism still impacts her life in significant ways. More specifically, she avoids exposure to environments where alcohol is consumed, displayed, or encouraged as it presents a substantial risk of relapse that would significantly impair her ability to function, concentrate, and maintain her recovery. Such avoidance is a matter of clinical necessity and never adversely affected her performance as an employee. In fact, she received positive performance reviews, never received a reprimand, and earned a promotion.

She was open about being in recovery as she frequently discussed her sobriety with her peers. When the employer began to hold occasional wine and cheese events at the office to wind down the workday, she had to make arrangement to leave the office early in order to avoid exposure to alcohol. This created tension between the plaintiff and her coworkers, who taunted her for not participating in the events.

In November 2023, plaintiff learned that her employer’s offices would be relocating to another town. The new office sat across the street from a liquor store and above a popular bar. Because working in that environment would involve consistent exposure to alcohol, plaintiff realized that she would need to work from home. She could perform all of the essential functions of her job remotely and had worked from home in the past. Further, other employees holding similar positions worked remotely and the employer’s infrastructure allows her to work from home. So, she requested to work remotely due to her alcoholism.

After making the accommodation request, plaintiff experienced ostracism and exclusion at her employer’s office. She was excluded from meetings, left out of communication, and was the subject of watercooler gossip about her alcoholism and her request for accommodation. Around January 25 of 2024, plaintiff repeated her accommodation request and provided her employer with letters from her health care provider and her sponsor. The letters outlined the threat to her sobriety posed by working at the new location. In February 2024, plaintiff went even further by proposing an alternative accommodation where she would alter her working hours to avoid the bar’s hours of operation. Without granting any of plaintiff’s request, her employer informed her that she would have to submit her accommodation request on her health care provider’s formal letterhead. When she submitted such a request the next day, she was promptly fired.

Although her employer originally informed her that she was terminated because her services were no longer required, weeks later, her employer claimed that she was fired because she used vulgar gestures and language towards the CEO, which she denied.

Court’s Reasoning That Plaintiff Plausibly Alleges That Her Alcoholism Constitutes a Disability under the ADA

A disability under the ADA, includes any of the following: 1) a physical or mental impairment that substantially limits one or more major life activities of an individual; 2) a record of such an impairment; or 3) being regarded as having such an impairment.
The amendments to the ADA provide a nonexhaustive list of what is a major life activity. The list includes: caring for oneself; performing manual tasks; seeing; hearing; eating; sleeping; walking; understanding; lifting; bending; speaking; breathing; learning; reading; concentrating; thinking; communicating; and working. 42 U.S.C. §12102(2)(A).
Whether an impairment substantially limits a major life activity gets decided without regards to any mitigating measures per 42 U.S.C. §12102(4)(E).
The definition of disability is construed in favor of broad coverage of individuals.
An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. 42 U.S.C. §12102(4)(D).
The fact that plaintiff’s alcoholism was in remission when she worked for her employer makes no difference to the ADA’s disability inquiry.
Plaintiff sufficiently alleged a substantial limitation on several major life activities, including: thinking clearly, concentrating, maintaining regular sleep, working, and caring for herself. In fact, her alcoholism so impacted her ability to function that she sought and received treatment for her addiction.
The proper question is whether plaintiff’s plausibly alleged that her alcoholism when active (emphasis in opinion), substantially limits a major life activity. The allegations contained in the amended complaint certainly meets that standard.

III

Court’s Reasoning That Plaintiff’s Alcoholism, When Inactive, Constitutes a Disability

Plaintiff plausibly alleged that her alcoholism continued to substantially limit at least one major life activity during her employment.
For example, plaintiff alleges that when she rearranged her work schedule to avoid being in the office during one of her employer’s wine and cheese events, her coworker taunted her and mock her sobriety. Those facts, informed by the court’s judicial experience and common sense, allow the court to draw the reasonable inference that plaintiff’s alcoholism substantially limited her ability to interact with coworkers at her place of employment. Since plaintiff’s alcoholism need only substantially limit one or more major life activities, that allegation is sufficient.

Court’s Reasoning That Plaintiff’s Employer Regarded Plaintiff as Disabled

An employer regards an employee as disabled when it regards her as having a physical or mental impairment that substantially limited one or more major life activities and that the impairment was one with a duration of more (taken directly from the court opinion), than six months.
To establish a regarded as claim, a plaintiff must show that she had been subjected to an action prohibited by the ADA because of an actual or perceived physical or mental impairment whether or not the impairment limit or is perceived to limit a major life activity. (Emphasis in opinion).
Plaintiff asserted in her amended complaint that defendant mistakenly believed her condition rendered her unfit for the workplace when in fact that was not so.
Plaintiff alleged that her employer was well aware of her disability and her status as a recovering alcoholic. In fact, the steps she took to maintain her sobriety were public knowledge at her employer’s office.
When plaintiff learned of her office’s new location, she requested permission to work remotely, more than a month prior to her termination. She even repeated that request three weeks later and provided her employer with letters from her healthcare provider and sponsor. According to the plaintiff, those letters outlined the detrimental effects that working at the new location would have on her continued sobriety given the consistent exposure to alcohol that she would have to endure.
The amended complaint also alleges that her employer required to resubmit her accommodation request on her healthcare provider’s formal letterhead and then it promptly fired her when they received that request. In short, plaintiff has plausibly alleged that her employer was aware of her alcoholism and the manner it impacted her life and work and that her employer terminated her employment as a result of her alcoholism.
Plaintiff alleges that her status as a recovering alcoholic was common knowledge to her employer and to its employees. It also plausibly alleges that her employer knew of the limitations her alcoholism placed on her ability to interact with others. It also alleges that her employer received multiple letters from her healthcare provider and her sponsor describing her alcoholism and the limitations it would have on her ability to work at the new location.
Plaintiff also alleged that she was terminated as a result of her request to accommodate her alcoholism by working remotely or altering her hours.
All of these facts plausibly state a claim that her employer subjected the plaintiff to an action in violation of the ADA because of the employer’s perception of her alcoholism.

Court’s Reasoning That Plaintiff Failed to State a Claim under the Kentucky Civil Rights Act

While the Kentucky Civil Rights Act in many ways tracks the ADA, it contains a specific exclusion for current or past alcohol abuse problems from the definition of disability. As such, the Kentucky Civil Rights Act claim fails from a plain reading of the statute.
While courts often interpret the Kentucky Civil Rights Act in harmony with the ADA, such an interpretation has to go by the wayside when the text of the act parts ways with that of the ADA.

Thoughts/Takeaways

State laws and the ADA frequently act in harmony with each other. However, there can be differences going either way. In this case, we see how a disability discrimination law at the state law level is actually narrower than the ADA. In other cases, such as the situation we discussed here, the state law may have broader protection than the ADA. Another example, is that state antidiscrimination laws might have differences with respect to how many employees an entity have to have in order to be covered. So, when it comes to disability discrimination laws, you always want to be aware of state laws as well, assuming they exist at all.
This case makes clear that a recovering alcoholic is a person with a disability in several different ways: 1) actual disability; 2) regarded as strong; 3) episodic disability; and I would argue, though not explicitly addressed by the court, a record of a disability as well. The case also makes clear that a person consistently using alcohol to excess (an alcoholic not in recovery), is a person with a disability as well (though it is worth pointing out that such a person can be evaluated as if the alcoholism doesn’t exist).
Precise and detailed pleadings in ADA matters is always very helpful on the plaintiff side.
A cautionary tale for employers that have events incorporated into their culture involving alcohol. Be prepared to make reasonable accommodations for those who don’t drink or have issues with alcohol abuse either currently or in the past. Also, this case illustrates that should such individuals seek to abstain from such events because of their aversion to alcohol for whatever reason get ostracized by employees, the employer will face trouble. This is especially an issue in the legal profession where drinking is very much a part of the culture. In fact, lawyers are the number one profession for those struggling with problem drinking with an estimate of 20% of lawyers being in that category.
Although timing of the termination was not discussed in the opinion, the fact that the employer fired her the day after receiving supporting documentation from plaintiff on the form they requested, certainly was not helpful to the employer.
The court assumed without deciding, that in office attendance was not an essential function of plaintiff’s job.
Shifting reasons for termination are never helpful to the employer.
You only need one major life activity to be substantially limited in order to get coverage under the ADA.
The six months exception only applies to regarded as claims not to actual or record of claims. Also, the six months exception, unlike what the court says, is six months or less and not more than six months. Further, the disability also has to be minor as well for this exception to apply. See 29 C.F.R. 1630.15(f).
The court’s discussion of regarded as is very confusing as the case law cited by the court is contradictory. For regarded as claim after the amendments, a plaintiff only has to show that the employer perceived a physical or mental impairment. A plaintiff does not have to show that the employer also perceived a substantial limitation on a major life activity.
An actual disability can be for less than six months if it substantially limits a major life activity.
After Muldrow, which we discussed here, one wonders if ostracism and the other conduct of the employees would not constitute an adverse action.

Eighth Amendment, Title II, and Nondelegable Duty

By William Goren on October 16, 2025

Posted in 1983, 504, ADA, Constitutional law, Federal Cases, Final Federal Regulations, Rehabilitation Act, Title I

Today’s blog entry is a published decision from the Third Circuit, Montanez v. Price, here decided on October 8, 2025 (which was my birthday). It discusses a series of issues, including: the Eighth Amendment; what is a program, service, and/or activity; and nondelegable duty. More specifically, the blog entry is divided into the following categories and they are: facts; Eighth Amendment overview/conclusions; who can be sued for the disability law claims; programs, services, and activities were involved; ADA/504 are nondelegable duties; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

Facts (Taken Directly from the Opinion)

On August 28, 2021, Jose Montanez stood up in his cell at SCI-Huntingdon and suddenly collapsed, his body numb from the chest down. Lying on the cell floor, Montanez alerted a nearby guard to his condition, and the guard soon returned with another prison officer. Montanez was then forced to “drag his body over to the cell door” before he was eventually taken to the medical unit in a wheelchair by Appellee Nurse Melanie Wagman.

Once in the medical unit, Nurse Wagman took Montanez’s vitals and felt around his legs. She then phoned Appellee Dr. Rajinder Mahli, who instructed her to move Montanez from his third-floor cell to a cell on the first floor and said he would evaluate Montanez the next day. When Montanez—still paralyzed from the waist down—learned that he would not be evaluated or treated until the next day, he 1 Evidence adduced in discovery may not support or may affirmatively disprove the allegations in Montanez’s complaint. In reviewing the dismissal of a complaint, however, we must accept the allegations as true. Stringer v. Cnty. of Bucks, 141 F.4th 76, 84, 90 (3d Cir. 2025). We therefore recount the facts below as set forth in the complaint, drawing all reasonable inferences in Montanez’s favor, as required at this stage. Id. 5 asked to be taken to the hospital, but Nurse Wagman responded, “you’re not going to the hospital,” and laughed at the request. App. 38. Nurse Wagman then wheeled Montanez to the door of his new cell, where she ordered him to “get out of the wheelchair,” offering him no assistance, forcing him to drag his limp body “across [his] cell to the bed,” and leaving him “exhausted and in so much pain.”

The next day, Dr. Mahli came to examine Montanez, but he, too, did not enter the cell, and ordered Montanez to “walk for him.” App. 38. Montanez was still unable to stand, let alone walk, so he again dragged his paralyzed body across the cell floor as Dr. Mahli watched. And when Montanez informed Dr. Mahli that he was also involuntarily urinating on himself, Dr. Mahli simply “nodded” and “walked off,” doing nothing to help Montanez with his sudden paralysis or incontinence.

Montanez was then left alone in his cell in this condition—paralyzed from his chest to his feet and uncontrollably urinating on himself—for another three days before receiving medical attention. At that point, Montanez was finally given an MRI that revealed spinal cord stenosis and spinal cord edema, requiring expedited back surgery in September 2021. Following surgery, Montanez was transferred to a private rehabilitation facility.

A mere two weeks into rehabilitation and still unable to stand, Montanez was returned to detention, this time to the infirmary of a different Pennsylvania state prison, SCI-Rockview. There, he continued his recovery until he took a serious fall that caused him intense pain in his spine. Nonetheless, the doctor on staff, Appellee Dr. Vernon Preston, refused to give him adequate pain medication. An x-ray revealed that Montanez had herniated a disc in his back in the fall, but SCI-Rockview’s Healthcare Administrator, Appellee Richard Ellers, “lied” to his doctor “about the results of the x-ray” to delay his treatment.

Two months later, Montanez was transferred back to SCI-Huntingdon, where he continued to suffer mobility issues and intense discomfort from his recent spinal surgery and subsequent spinal injury. So he requested certain accommodations, including a double mattress to control his back pain while sleeping, a cane or crutches to facilitate walking, stronger medication for pain management, and access to physical therapy. Those requests were repeatedly denied by prison personnel.

Eventually, Montanez is look to the courts and filed a pro se complaint against the Commonwealth of Pennsylvania and Wellpath seeking compensatory and injunctive relief and alleged violations of the Eighth Amendment, Title II of the ADA, and §504 of the Rehabilitation Act. At the time, the middle District of Pennsylvania require pro se. Bringing civil rights claim to file their action using a specific complaint form. That form restricted any complaint to just 12 lines with no more than three extra sheets. Accordingly, the defendants moved to dismiss. Montanez responded with over 50 pages of new factual allegations, but the District Court wound up dismissing the complaint anyway. Montanez appealed

Eighth Amendment Overview/Conclusions

An Eighth Amendment claim for inadequate medical care involves a prisoner showing a serious medical need and acts or omission by prison officials indicating deliberate indifference to that need.
A medical need is sufficiently serious it is one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a layperson would easily recognize the necessity for a Dr.’s attention.
A prison official acts with deliberate indifference if the official knows of the serious medical need yet disregards it by failing to act reasonably. Such acts can be inferred from circumstantial evidence, including the obviousness of the serious health need.
Deliberate indifference has been found in a variety of different situations, including where: 1) prison authorities deny reasonable requests for medical treatment; 2) knowledge of the need for medical care is accompanied by intentional refusal to provide it; 3) necessary medical treatment is delayed non-medical reasons; and 4) prison authorities prevent an inmate from receiving recommended treatment for serious medical needs.
The spinal cord stenosis, edema, his sudden incontinence, and the herniated disc he suffered after falling at a facility, all easily qualify as serious medical needs.
Montanez plausibly alleged that Dr. Mahli was deliberately indifferent to his health needs. In particular, the doctor despite knowing that Montanez was suddenly paralyzed and uncontrollably urinating on himself, provided no medical treatment and instead abandon him in this state for three days. So, this is a situation where knowledge of the need for medical care was accompanied by the intentional refusal to provide that care. It is also a situation where the defendant abandoned a prisoner in a condition unreasonably exposing him to the threat of tangible residual injury. Both constitute deliberate indifference.
While certain defendants were dismissed from Eighth Amendment claims, the Eighth Amendment claims against Ellers and Wagman were plausibly alleged.
Wellpath was properly dismissed for the §1983 claim because there were no allegations that their policies or customs were the cause of the constitutional violation.

Who Can be Sued for the Disability Law Claims

Individual Commonwealth defendants and individual medical defendants are not subject to suit in their personal capacities because neither state employees nor contractors are public entities. Therefore, they cannot be sued under Title II of the ADA.
The Commonwealth of Pennsylvania is a public entity that receives federal funds so it is a proper defendant under both Title II of the ADA and §504.
While the allegations are not sufficient to transform Wellpath into a state actor, Wellpath indirectly through the prison facility and the Pennsylvania Department of Corrections receives federal funding. Therefore it is a proper defendant on the §504 claim. Further, the evidence is contradictory as to whether Wellpath directly receives federal funds.

III

Programs, Services, and Activities Are Involved

No question exists that Montanez is a qualified person with a disability.
The phrase “service, program, or activity,” under both Title II and §504 is extremely broad in scope and includes anything a public entity does.
Healthcare is a service prison must provide to prisoners. The facts are such (see facts section above), that Montanez has made sufficient allegations to show that he was denied meaningful access to medical care because of his disabilities.
Necessity for hygiene, including, showers, sinks, and toilets, are basic services that prison must provide. The allegations that Montanez was abandoned in his cell for at least three days, paralyzing urinating on himself, neither able to reach a toilet nor given an alternative way to relieve himself with dignity is a textbook example of a disabled prisoner being denied access to fundamental prison service.
Given that all people need sleep, providing prisoners with accessible beds and appropriate and adequate bedding is are services of a prison.
Construing the complaint liberally, Montanez adequately pleaded that he could not access the bed on the same basis as able-bodied inmates and was denied a reasonable accommodation necessary for him to sleep without significant pain just like able-bodied inmates could.
Montanez argues persuasively that the Commonwealth of Pennsylvania and Wellpath had an obligation to reasonably accommodate his disabilities and that their repeated failure to do so was the reason he could not meaningfully access various prison services.
The duty to accommodate is triggered when a disabled person’s need for an accommodation becomes known either because: 1) he requests an accommodation; or 2) his disability and need for the accommodation are open and apparent.
Both the Commonwealth and Wellpath had an affirmative duty to accommodate Montanez, and their failure to do so was the same thing as denying him access to those prison services on the same basis as other inmates.
Toilets, beds, and medical care are all services or programs under Title II and §504.

ADA/504 Are a Nondelegable Duty

Both the text and purposes of Title II and §504 confirm the Commonwealth’s obligation to ensure compliance with both laws even when it contracts out the operation of their programs, services, or activity to third parties.
Congress wanted to give people with disabilities an affirmative right to access all (emphasis in opinion), covered programs and services no matter how or through whom (emphasis in opinion), the government or federally funded entity elects to deliver them. Regardless of the medium of delivery, those programs and services must be accessible to people with disabilities.
Congress’s use of the passive voice (no qualified individual with a disability shall by reason of such disability, be excluded…), only reinforces that conclusion. That is, both statutes (ADA and the Rehabilitation Act), focus on an event constituting a type of prohibited disability discrimination without respect to a specific actor. Such a linguistic choice to pull the actor off the stage reflects Congress’s indifference as to who does the excluding or denial of benefits-be they government employees or government contractors.
Title II of the ADA prohibits covered entities from directly or indirectly (through contractual or other arrangement), from utilizing criteria or methods of administration that have the effect of discriminating on the basis of disability.
While it is true that States often contract with private companies to provide prison services and programs of many different kinds of varieties, Title II and §504 would become dead letter if States could evade their statutory duties merely by outsourcing the operation of such programs.
Congress did not design the ADA or the Rehabilitation Act so that a public entity could forever prevent a qualified individual with a disability from utilizing a service, program, or activity.
Whether or not a State uses contractors, States remain responsible for ensuring that prisoners with disabilities can accept their prisons services, programs, and activities on the same basis as nondisabled prisoners. As such, the Commonwealth of Pennsylvania was obligated to ensure that Wellpath and its employees-like all other state contractors-complied with federal laws prohibiting discrimination on the basis of disability.
In a footnote, the court noted that 28 C.F.R. §35.152(a) says that Title II of the ADA applies to public entities that are responsible for the operation or management of correctional facilities either directly or through contractual, licensing, or other arrangements with public or private entities. That is, if a person is occupied by state prisoners and is inaccessible, the State is responsible under Title II of the ADA.

Thoughts/Takeaways

The court also said that the court erred by not granting Montanez the ability to amend the complaint since he had stated several different claims that were plausible.
With the exception of the 11^th Circuit when it comes to an individual employed by a public entity engaged in retaliatory activities, here, the courts are unanimous that individual liability is not a thing under either the ADA or §504 of the Rehabilitation Act.
Title II of the ADA and §504 of the Rehabilitation Act apply to everything that a public entity does.
The legal standard for Title II and §504 is meaningful accessibility.
The duty to accommodate is an affirmative duty.
If the duty to accommodate is an affirmative duty that gets triggered when a disabled person’s need for an accommodation becomes known as the court says, a logical extension of that is that an interactive process is required to figure out how to accommodate that individual. Granted, you have to look far and wide to find, outside of higher education, cases holding that Title II of the ADA requires an interactive process (the cases can be found), the logic still remains. Also, an interactive process regardless of whether it is required or not is excellent preventive law. Finally, we discussed the do’s and don’ts of the interactive process in this blog entry.
The court all but says that the ADA and §504 are nondelegable duties.
An entity can be subject to §504 of the Rehabilitation Act if it indirectly take federal funds.
Another example of why the ADA is a nondelegable duty for Title II entities can be found in 28 C.F.R. §35.130(b)(1)(v), which prohibits a public entity from providing significant assistance to an entity that discriminates on the basis of disability. I have also found that this particular section is often underutilized when a Title II entity contracts with another entity that discriminates on the basis of disability.

Direct Evidence Cases do Exist and Other Good Stuff

By William Goren on October 6, 2025

Posted in ADA, Federal Cases, Final Federal Regulations, Title I

Today’s blog entry comes out of the Eighth Circuit, where just don’t see a lot of ADA cases. This case, Equal Employment Opportunity Commission v. Drivers Management, LLC, is a published decision decided on July 10, 2025, and can be found here. The case explores several topics including: 1) direct evidence; 2) logistical undue hardship; 3) undue hardship as an affirmative defense; 4) direct threat as an affirmative defense; 5) stray remarks; 6) essential functions of the job; 7) punitive damages; 8) injunctive relief; and 9) prejudgment interest. As usual, blog is divided into categories and they are: facts; court’s reasoning that plenty of direct evidence existed and so causation existed; court’s reasoning upholding the court’s summary judgment granted to the EEOC with respect to the undue hardship defense; court’s reasoning upholding district court’s summary judgment granted to the EEOC with respect to Werner’s direct threat defense; court’s reasoning that the district court did not abuse its discretion by admitting evidence by non-decision-makers occurring two years after the decision was made to reject Robinson; court’s reasoning that the district court did not abuse its discretion by admitting evidence of other trucking companies accommodation for deaf drivers; court’s reasoning that Robinson was a qualified person with a disability; court’s reasoning that the district court did not err by submitting the issue of punitive damages to the jury; court’s reasoning that the district court properly granted injunctive relief; court’s reasoning that the district court properly awarded prejudgment interest; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

Facts

The person the EEOC brought suit on behalf of was a Victor Robinson, a deaf individual.
Federal regulations require all drivers to meet specific hearing requirements in order to obtain a commercial driver’s license.
Those same federal regulations also allow an individual to obtain a medical variance from the Federal Motor Carrier Safety administration in order to obtain a commercial drivers license. Therefore, an individual who is deaf, but obtains from the Federal Motor Carrier Safety Administration a medical variance from the physical qualification standards, is able to obtain a commercial drivers license and is physically qualified to drive a commercial vehicle under federal law.
Robinson obtained his variance in 2015 and enrolled in a driver training school owned by Werner. He successfully completed that program and obtained his commercial drivers license.
Robinson then applied to Werner for an over the road truck driver physician before finishing his training. Since he had fewer than six months of experience driving a commercial truck, Werner’s policy obligated Robinson to go through the placement driver program before becoming a solo driver. That program required new hires lacking six months of experience to drive throughout the country for 4 to 6 weeks with a trainer, delivering customer orders while receiving contemporaneous corrections and instructions while driving. According to Werner, this training program required all trainees to be able to engage in verbal communication with their trainers, as any other method of communication would result in unsafe distraction from the road.
After submitting his application, Robinson received an email from the recruiting manager, Erin Marsh, informing him that his application had been preapproved and he should contact Werner to discuss further opportunities. Robinson then called Marsh who spoke with him about the job, the orientation, providing interpreting services, and other matters.
About a week later Marsh emailed Robinson asking him to speak with Werner’s’s VP of Safety and Compliance. Marsh participated in the call with a Jamie Hamm, VP Of Safety and Compliance. Hamm testified that in preparation for the call she researched potential accommodations that Werner’s could provide safely in order to train Robinson while he participated in the placement driver program. Hamm and an investigator for the Nebraska EEOC, testified that when he asked her if she had conducted research into potential accommodation prior to speaking to Robinson, she said she had not done so. After discussing Robinson’s previous accommodation, Hamm told Robinson that he can’t be hired because of his deafness and ended the call.
After a variety of pretrial motions, the case went to a jury trial with both parties moving for judgment as a matter of law. The district court granted the EEOC’s motion because all of Werner’s’s explanation for its failure to hire Robinson were premised on his deafness. The case was then submitted to the jury, which found that Werner failed to hire and failed to accommodate Robinson in violation of the ADA. The jury awarded Robinson $75,000 in compensatory damages and $36,000,000 in punitive damages. The district court subsequently reduced to punitive damages to $300,000, the statutory maximum.
After the jury verdict, the case continued to a trial to determine applicable relief. After the trial, the trial court determined that Robinson was entitled to back pay and eventually determined that the EEOC was also entitled to prejudgment interest of $11,000. Finally the district court concluded that injunctive relief was appropriate given the finding of intentional discrimination.

Court’s Reasoning That Plenty of Direct Evidence Existed and so Causation Existed

Direct evidence of discrimination is evidence showing a specific link between the alleged discriminatory animus and the decision sufficient to support a finding that an illegitimate criterion actually motivated the adverse employment action.
Direct evidence most often consists of remarks by decision-makers reflecting without interference a discriminatory bias.
A review of the record confirms that there was no evidence from which a jury could conclude that Robinson was rejected for any reason aside from his deafness. In particular, Vice President of Safety and Compliance ended Robinson’s employment interview by stating, “no, I’m sorry, we can’t hire you because of your deafness.” Additionally, Werner stated in a sworn interrogatory that its position was that a deaf student driver could not safely complete the over the road training portion of Werner’s’s student driver program. That is, Werner would not hire any (emphasis in opinion), deaf applicant, including Robinson. In other words, Werner’s theory of the case was that Robinson would not qualify for the truck driver position because he was deaf (emphasis in opinion), and, as the district court noted, Werner provided no other reason to why it did not hire Robinson. Accordingly, the district court properly entered a directed verdict in favor the EEOC on the issue of causation.
No meaningful difference exists between taking an adverse action because of the job performance consequences of disability rather than the disability itself because all of the alleged consequences describe (emphasis in opinion), Robinson’s disability.
While the issue of Robinson’s qualifications was a question for the jury, Werner’s reason for failing to hire him was not.

III

Court’s Reasoning Upholding District Court’s Summary Judgment Granted to the EEOC with Respect to the Undue Hardship Defense

The ADA exempts employers from making a reasonable accommodation for an employee if the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business.
Once the plaintiff has demonstrated that a proposed accommodation is reasonable on its face “in the run of cases,” (phrase in quotations in the opinion), the employer must show special circumstances demonstrating undue hardship.
Werner produced virtually no evidence before the District Court about how providing non-verbal cues would fundamentally alter its business (emphasis in opinion), not just the training program, nor did it cite any financial burden it would incur by accommodating Robinson.
As the District Court noted, it is unclear how nonverbal communication during training fundamentally alter the ability of a trucking company to carry goods in interstate commerce, which was Werner’s’s primary purpose. Further, it offered no evidence establishing a genuine dispute regarding a significant difficulty or expense.
Werner has the burden to prove the affirmative defense. As a result, its failure to provide any evidence at the how the accommodation would affect his business as a whole is fatal to a challenge on appeal.

Court’s Reasoning Upholding District Court’s Summary Judgment Granted to the EEOC with Respect to Werner’s’s Direct Threat Defense

When it comes to direct threat, the Supreme Court requires an individualized direct threat analysis relying on the best current medical or other objective evidence in order to protect persons with disability from discrimination based on prejudice, stereotypes, or unfounded fear. Specific factors to analyze include per 29 C.F.R. §1630.2(r), include: 1) the duration of the risk; 2) the nature and severity of the potential harm; 3) the likelihood that the potential harm will occur; and 4) the imminence of the potential harm. The employer bears the burden of proof.
The only person who allegedly inquired into whether Robinson’s disability constituted a direct threat was the Vice President of Safety and Compliance, Hamm. However, it is undisputed that she did not conduct the required individualized direct threat analysis. While she testified that she called relevant trucking associations and asked if they had research on road tests with hearing-impaired individuals, she has no notes from those calls, no record of any analysis, and no evidence of any discussion about Robinson individually (emphasis in opinion), in light of his prior training as a commercial driver.
Even viewing the facts in the light most favorable to Werner, it is undisputed that Werner did not conduct the individualized analysis necessary to prove this affirmative defense. Instead, the VP of Safety and Compliance just made a few general calls to back up her prejudice, stereotypes, and unfounded fear of allowing a deaf individual to drive a Werner’s truck. A one-size-fits-all approach is insufficient to create a genuine dispute of material fact as to Werner’s direct threat defense, and therefore the district court committed no error on this issue.

Court’s Reasoning That the District Court Did Not Abuse Its Discretion by Admitting Remarks by Non-Decision-Makers Occurring Two Years after the Decision Was Made to Reject Robinson

On one occasion, a Werner’s employee sent Marsh, the recruiting manager, a link to an article detailing how a deaf man obtained a truck driving job, to which Marsh responded, “this scares me to death.”
On another instance, Marsh was communicating with another recruiting manager via instant messaging and the other recruiting manager told her: “[I]’m on hold with a deaf guy.. wtf,” and proceeded to make several comments regarding this deaf applicant, including, “[others] must be trying to find him.. you know yelling his name.. but he can’t hear them” and “marco . . . nobody can here [sic] polo” to which Marsh responded, “lmao . . . omg.”
While stray remarks, standing alone, may not give rise to an inference of discrimination, such remarks are relevant. That is particularly the case here where Werner admitted (emphasis in opinion), that it did not hire Robinson because of it disability and the EEOC sought to prove Werner was motivated by animus and not safety in failing to hire Robinson. Further, the EEOC produced other evidence which, together with those comments, would allow the jury to find that Werner intentionally discriminated against Robinson for purposes of punitive damages.
The EEOC was not using those comments to prove pretext as McDonnell Douglas was not involved since direct evidence existed.
While the emails were circulated two years after Robinson’s rejection, the recruiting manager, Marsh, held the same position she held at the time of Robinson’s application and, as the district court stated, those discriminatory comments were directly relevant to Werner’s long-standing decision-making and attitude toward deaf applicants. As such, the comments provide additional threads of evidence for the jury directly relevant to animus.

Court’s Reasoning That the District Court Did Not Abuse Its Discretion by Admitting Evidence of Other Trucking Companies Accommodations for Deaf Drivers

The evidence of other companies policies and their ability to train deaf drivers safely was directly relevant to whether Robinson’s proposed accommodation was reasonable.
Werner admitted at trial that it employed experienced (emphasis in opinion), deaf drivers who did not need its training.

VII

Court’s Reasoning That Robinson Was a Qualified Person with a Disability

Federal regulations specifically allow a person that does not meet specific hearing requirements to obtain a waiver, which Robinson obtained.
The federal regulations are no longer the same from what they were when the Supreme Court decided Albertson’s, Inc. v. Kirkingburg, here, back in 1999. In particular, the waiver is no longer experimental and is now enshrined in the code of federal regulations and carries the full force of the law.
Werner’s essential function argument fails because the essential function requirement focuses on the desired result, i.e. safe driving, rather than the means of accomplishing it.
Robinson’s accommodation did not eliminate the essential functions of safe driving. In particular, the jury heard from two EEOC experts about how to accommodate a deaf individual while training using hand signals, and diverting one’s eyes from the road for a brief time was equivalent to the time spent checking a mirror or changing the radio. Also, several trucking company testified that they use those types of accommodations safely in their own training programs. Finally, Robinson’s own testimony supported the safety of using hand signal to communicate, as that was the accommodation he received while training to receive its commercial drivers license. As such, sufficient evidence existed to support the jury’s finding that Robinson was qualified per the ADA.

VIII

Court’s Reasoning That the District Court Did Not Err by Submitting the Issue of Punitive Damages to the Jury

To be liable for punitive damages, the employer must also know that it may be acting in violation of federal law.
Plenty of evidence existed of malice, including: 1) Marsh’s discriminatory commentary with recruiters and her involvement with Robinson’s application; 2) the Vice President of Safety and Compliance testimony about her familiarity with antidiscrimination laws, per away inquiry into accommodations, and her failure to record any information about the accommodation research; and 3) testimony from the EEOC investigator that the VP of Safety and Compliance told her that he was not hiring Robinson because he was deaf, despite his application being approved.
Punitive damages are appropriate as a matter of law where evidence was presented to the jury that a managerial employee engaged in discrimination while knowing that federal law prohibited such discrimination.

Court’s Reasoning That the District Court Properly Granted Injunctive Relief

The injunction mandates that Werner report records of deaf applicant to the EEOC every six months (at a minimum) for three years and that it retain a record regarding such applications. The district court noted that the requirement do not harm Werner so long as Werner complies with the federal law by not blatantly discriminating against deaf applicants. It found that the requirements would enable Werner to avoid future lawsuits by demonstrating its good faith effort to comply with the ADA. As such, the injunction serve the public by requiring Werner to report deaf applicant directly rather than allowing Werner to wait until the victim of discrimination approaches the EEOC. Especially in light of the cap on damages, which reduced the jury award by more than 99%, the injunction might actually deter Werner from future discrimination.

Court’s Reasoning That the District Court Properly Awarded Prejudgment Interest

Prejudgment interest is equitable relief for making a person whole for injuries suffered on account of unlawful employment discrimination.
Prejudgment interest is permissible despite a lack of inclusion in a pretrial brief because the finding of liability at trial places the defendants on notice that they would ultimately face monetary damages, including interest.
The Eighth Circuit has previously allowed a party to request prejudgment for the first time after trial. Since the award is equitable, the purpose of the award is to account for compensation for the inability to use the money between the time of the compensable injury and the time the award is paid. Accordingly, the district court was proper in granting the EEOC the relief to which it was entitled even though it had not demanded that relief in its pleadings.

Thoughts/Takeaways

You don’t see many direct evidence cases, but this is certainly one of them. I am a bit surprised it didn’t settle as a direct evidence case is virtually impossible for a defendant to win. Also hard to win, is defending on the grounds that a blanket policy that discriminates against a person with a disability should survive.
Blanket policies are always a bad idea.
Always do an individualized analysis, whether it be with respect to essential functions of the job or for determining a direct threat. Documenting such analysis is always a good idea.
In some jurisdictions, as we have discussed here for example, there are alternatives to McDonnell Douglas that a plaintiff can use. When direct evidence exists McDonnell Douglas and its alternatives do not even come into play.
Interesting the use by the court of italics in various places. The court was clearly bothered by the egregious conduct of Werner and wanted to add special emphasis.
The court puts “in the run of cases,” in quotation marks, which indicates to me that the court, just like myself, may not understand what the term means.
Logistical undue hardship (think fundamental alteration concept in Title II and III of the ADA), relates to the business as a whole and not to an individual part of the business.
Undue hardship is an affirmative defense that the employer has the burden of proof on.
Doing research to back up prejudice, stereotypes, and unfounded fear with respect to persons with disabilities simply doesn’t cut it. Instead, always engage in the interactive process, and if you get stuck, contacting the Job Accommodation Network is certainly worthwhile.
Training, training, training by knowledgeable ADA individuals is important.
To get prejudgment interest, it doesn’t have to appear in the pretrial brief. It can be obtained after the trial.
Even long after a situation has occurred, what employees say can come back to bite you.
When it comes to essential functions, focus on what the job is trying to accomplish rather than on the tasks typically associated with accomplishing that job. I can’t tell you how often I’ve seen employers make this mistake. It happens more than you would think.
Damage caps are under debate in Congress. It may take a change in control of political parties for anything to happen on that, but that remains to be seen. We recently explored a case of how a federal court was able to maneuver around the damage caps, here. In this situation, there wasn’t an analogous state law that the court could turn to. That said, that the ceiling on damages reduced the jury award by 99% with respect to punitive damages, was a significant factor in why the court affirmed the grant of injunctive relief.
The decision is unanimous, and it is also published. As a published decision, it can be freely cited as precedent.
In Albertson’s, the court held that mitigating measures inherent to an individual could be factored in when deciding whether a person has a disability (this aspect of the decision has been overturned by the amendments to the ADA). In a concurring opinion, Justice Thomas wrote that the decision should have been decided with respect to federal regulation governing the trucking industry as the ADA does not preempt safety regulation by other federal regulatory bodies.
Knowledgeable ADA legal counsel is always a must. The ADA can get terribly complicated, though this should not have been one of those situations for either HR or for legal counsel.
The court uses small deaf and not Deaf, but one wonders from the opinion if Robinson was not Deaf; cap D and small d are not the same thing at all. It also uses the term “hearing-impaired,” with drives many of us in the hearing loss community absolutely batty. We prefer D/deaf and hard of hearing.

Religious Freedom and Remote Work ADA Implications and the Latest With HUD and Animals in Housing

By William Goren on October 1, 2025

Posted in ADA, Fair Housing Act, General, Guidances

Today’s blog entry is a two for one. First, we explore some stunning developments in the area of housing and animals when it comes to persons with disabilities. Second, we explore a memorandum opinion from DOJ to the acting chair of the EEOC when it comes to remote work as an accommodation for religious liberty purposes. As usual, blog entry is divided in the categories and they are: HUD withdrawal of the circulars involving ESA and SA’s; memorandum opinion pretty acting chair of the EEOC; and thought/takeaways. Of course, the reader is free to focus on any or all of the categories, but since this blog entry is so short, you will probably wind up reading the whole thing.

HUD withdrawal of the circulars involving ESA and SA’s

On September 17, 2025, HUD, here, withdrew the 2013 and 2020 circulars dealing with people with disabilities and their animals in housing. What this means is that issues pertaining to people with disabilities and their animals that enable them to enjoy the benefits of housing will now be dominated by state law. Not every state has laws on point, but some, such as the one we discussed here, do. The result of this is that it is going to be very much a Wild West situation with respect to animals in housing when it comes to persons with disabilities. It also means that you may see an awful lot of litigation over whether ESA’s even have to be allowed in the first place. Prior to the withdrawal of these guidances, it was debatable per Loper Bright, whether ESA’s were in play. Now that the guidances/circulars have been withdrawn entirely, it is very much an open question about whether ESA’s remain a thing so to speak. Since the FHA has a very brief final regulation talking about a service animal with respect to the blind, service animals are still going to have to be allowed under the FHA. I do expect we will see an awful lot of people try to figure out how to get their animal to be a service animal. It often doesn’t take much training to do that. An open question is whether a court might interpret Loper Bright in such a way as to allow an animal that is not a dog but otherwise functioning as a service animal, to be counted as a service animal under the FHA.

Memorandum Opinion For the Acting Chair, EEOC

Remote work is a big issue in the area of ADA now that employers are insisting that people come back to work at least for some of the time. On September 18, 2025, DOJ issued a memorandum opinion talking about remote work in the context of religious liberty in light of Pres. Trump’s executive order mandating return to work at a physical location. Some of what is said in this DOJ opinion definitely has ramifications for the ADA universe, and so the memorandum is worth covering in that respect.
The memorandum focuses on situational telework and not on full-time telework.
The memorandum specifically references EEOC guidances on reasonable accommodations with respect to telework as it pertains to persons with disabilities.
The memorandum states that for more than 20 years, telework and similar flexible work schedules can constitute reasonable accommodations within the meaning of similar federal antidiscrimination statutes (ADA explicitly referenced).
The memorandum mentions that there have been fundamental changes to how we work and significant legal changes in how work must accommodate worship. It also references how everybody was working from home during the Covid-19 pandemic and how people thought though changes might be permanent.
The memorandum states that as telework has become more prevailent, both EEOC and courts have recognized that it may provide a viable option to accommodate individuals protected under federal anti-discrimination laws
The memorandum references Groff v. DeJoy, which we discussed here.
In 2003, the EEOC issued a guidance about accommodating individuals with disabilities wishing to work from home.
Where an employee’s workstation is a long distance from the location of the required religious observance, telework may reduce the number of hours the employee would otherwise take off for that observance. Such an arrangement has the potential to benefit all parties, minimizing overall absence and disruption and increasing efficiency in certain circumstances.
The return to work memorandum does not preclude situational telework for two reasons: 1) the memorandum defines remote work specifically not as a full-time situation and so is and subject to the return in person executive order at all; 2) the Executive Order allows department and agency heads to make exemptions that they deem necessary and the Executive Order has to be implemented consistent with applicable law; and 3) agencies have broadly way and deciding when to permit telework.
Whether a particular accommodation is warranted in any given context is always a fact specific inquiry.
A categorical exclusion of situational telework as a form of religious accommodation has no basis in the Executive Order.
Refusing an accommodation in the name of purported fairness toward employees who have returned to work is inconsistent with Title VII.
By definition any “special accommodation,” requires the employer to treat an employee with a disability differently, i.e. preferentially.

III

Thoughts/Takeaways

Much of what is said in this memorandum has even more force when it comes to persons with disabilities. In fact, the memorandum several times refers to documents pertaining to the rights of people with disabilities.
Situational telework if it is a thing for religious observances and religious liberty purposes, it is most certainly a thing for persons with disabilities.
Full-time telework is still a possibility for persons with disabilities as the memorandum specifically references documents talking about telework being full-time possibly.
I don’t like the word “special accommodation,” as there is nothing special about the accommodation that a person with a disability needs to get to the same starting line as a person without a disability. In the disability community, you see a similar debate with respect to the term “special needs,” which I don’t like either for the same reason.

Inflexible Return to Work Policies Can Cost You Big Time

By William Goren on September 22, 2025

Posted in ADA, Federal Cases, Title I

Before getting started on the blog entry for the week, I want to wish those who are celebrating a happy and healthy Jewish new year. The new year starts this evening and culminates with the day of atonement next week.

The case of the week is Granas v. Union Pacific Railroad Company out of United States District Court for Oregon, here. It discusses what happens when an employer has an inflexible return to work rule, and imposes permanent restrictions without engaging in an individualized analysis. The result is an award of $$952,863 in front as well as back pay and $25 million in punitive damages. As usual, the blog entry is divided into categories and they are: facts; key points revealed through trial; court’s view of compensatory damages; court’s view of punitive damages; court’s review of front pay and back pay under the ADA; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

Facts (greatly condensed).

Ideal plaintiff (moved to area as a child and had to raise himself; served 20 years in the United States Army; worked for Union Pacific for 16 years as a conductor and brakeman; two kids and six grandchildren; built a ranch from scratch).
Injured (dislocated shoulder),while loading a hay wagon on his ranch on his 55^th However, received physical therapy, worked a variety of different jobs, and was even stronger than he was before injury. His doctor gave him a release to return to work without restrictions.
Since 2016, Union Pacific has a 1% rule whereby a person is given a permanent restriction of not being able to work in what it calls a safety sensitive job if the person has a 1% chance of reinjuring themselves. The rule was informal and not in writing but nevertheless enforced.
Union Pacific did not engage in an individualized analysis as to whether the plaintiff was a direct threat to self or others or whether he could do his job with the without reasonable accommodations. The 1% rule is absolutely inflexible.

Key Points Revealed through Trial

Expert testimony put on by the plaintiff from a doctor with a great deal of expertise in fitness for duty examinations, explained: 1) when determining whether an employee is fit for duty, a decision-maker needs to understand the nature and components of the job and assess the particular individual in light of their circumstances and medical facts; 2) it is not medically professional to exclude a person from returning to their occupation on the basis of a shoulder dislocation alone without a more individualized evaluation of the employee’s ability to perform the duties of the job; 3) there is no medical basis for the 1% rule or for determining the method by which a 1% rule would apply to a shoulder injury. That is, nothing found in the medical literature or standards that are published suggesting the 1% rule was appropriate under the circumstances of this case or how it was calculated for the plaintiff. In short, no scientific or medical basis exists for applying the 1% rule to terminate the plaintiff; 4) the 1% rule was not uniform across the industry and was an outlier; 5) Union Pacific did not contact any of plaintiff’s treating doctors or therapists and did not obtain his full medical record; 6) Union Pacific did not have a complete picture of plaintiff’s shoulder injury or the status of his rehabilitation; 7) Union Pacific did not do any particular analysis of plaintiff as a person; 8) Union Pacific did not have the plaintiff physically examined; 9) Union Pacific did not seek to discover how successful plaintiff’s rehabilitation was; 10) Union Pacific did not request plaintiff to provide evidence of an MRI to confirm any questions that it might had nor did it bring him to the train yard to perform a physical function test; 11) Union Pacific did not contact any of his treating doctors; 12) Union Pacific should have taken a harder look at the plaintiff as an individual rather than apply the 1% rule to dismiss him; 13) Union Pacific did not follow the medical literature with respect to the plaintiff’s particular injury, which actually showed a lower risk of injury for the plaintiff than for someone much younger; and 14) it is not a best practice to use a uniform, blanket policy to screen out from working as a trainman all employees who had ever had an anterior shoulder dislocation.

III

Court’s View of Compensatory Damages

Since losing his job, plaintiff had not had the income necessary to pay for the costs to sustain his ranch, which also caused him a great deal of emotional distress.
Losing his job had caused him serious emotional distress and necessitated a completely different financial situation.
It is more probable than not given the evidence for need of income for the ranch and plaintiff’s overall good health, strength, and energy, that plaintiff would have retired at the age of 67 with a full pension. As a result, plaintiff’s total economic net loss for past, present, and future earnings reasonably calculated to be $952,863 with the back pay portion of that being $443,014.

Court’s View of Punitive Damages

Union Pacific has revenue of $24.3 billion and net income of $6.7 billion in 2024 with $18.5 million a day in profit.
Union Pacific is a sophisticated company aware of unlawful employment practices under the ADA.
Plaintiff’s expert discussing fitness for duty and how they are supposed to work was absolutely critical. Companies would do well to pay attention to that testimony described in this opinion.
To recover punitive damages under the ADA, plaintiff must show that the defendant engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to her federally protected rights. That means showing that an employer must at least discriminate in the face of a perceived risk that its actions will violate federal law. In general, intentional discrimination is enough to establish punitive damages liability.
The unanimous jury determined by preponderance of the evidence that Union Pacific intentionally discriminated against the plaintiff based on disability and that it did so with the knowledge that its conduct would likely violate the ADA.
Unanimous jury also determined by the preponderance of the evidence, that Union Pacific’s 1% policy was an unlawful screening policy tending to screen out individuals with disabilities, including the plaintiff.
By a preponderance of the evidence, the court determined that Union Pacific’s 1% policy was unlawful and that it screens out or tend to screen out individuals with disabilities, such as the plaintiff. Union Pacific also excluded the plaintiff from returning to his job because of his injury regardless of his individual condition, which showed that it was more likely than not that had Union Pacific had done an individualized analysis, it would have concluded that plaintiff could return to his job. It didn’t do that and fired the plaintiff based on the 1% policy.
Abundant evidence at trial exists concluding that it was more likely than not that Union Pacific: 1) was aware of antidiscrimination principles and that its policy was facially discriminatory; 2) the policy was directed at employees with a certain medical diagnosis; and 3) Union Pacific used the policy to restrict those employee from work or returning to work. Accordingly, sufficient evidence exists to support a finding that Union Pacific had sufficient malice, or reckless and outrageous indifference to a highly unreasonable risk of harm and acted with a conscious indifference to the health, safety, and welfare of others so as to support an award of punitive damages.
For the same reasons, punitive damages under Oregon State law are justified.
Since the lawsuit also involved Oregon law, the court is free to allocate damages between the federal and state law so as to avoid the federal statutory damages cap.

Court’s Review of Back Pay and Front Pay under the ADA

The Ninth Circuit has held that backpay is an equitable remedy with the court and not the jury having the ultimate discretion regarding the amount of the award. Accordingly, backpay is not subject to the damages cap.
Front pay is a remedy previously authorized under the Civil Rights Act. Congress did not limit the availability of such awards. Instead, Congress expanded the available remedies by permitting the recovery of compensatory and punitive damages in addition to previous available remedies, such as front pay.
The Supreme Court has held that front pay is not an element of compensatory damages within the meaning of the Civil Rights Act. The Supreme Court has said that front pay is a remedy authorized under prior law, so the statutory damage is inapplicable to front pay.
The statutory damage cap applies to punitive damages and compensatory damages, but not backpay or front pay.
The jury’s award is supported by a preponderance of evidence on the record, and departing from the jury’s intent would be impermissibly disregarding those findings.

Thoughts/Takeaways

From looking at the docket, it looks like that this case may be appealed. As of this writing, plaintiff is in the process of trying to obtain an order specifying the attorney fees plaintiff is entitled to.
Ideal plaintiff
A policy that screens out people with disabilities is a terrible idea. Any inflexible rule results in screening out persons with disabilities.
If you have return to work policies, it should be backed up by medical evidence supporting that policy.
The ADA always requires an individualized analysis. Failing to do that can cost you big time as it did in this case.
Front pay and backpay are not subject to the statutory damages cap per this decision.
Filing under state and federal law claims simultaneously may be a vehicle to enable a plaintiff to get around the statutory damages cap with respect to compensatory and punitive damages.
Intentional discrimination is generally enough to establish punitive damages liability.
Not every legal counsel is knowledgeable about the ADA. Be sure knowledgeable ADA counsel gets involved when necessary. As readers of this blog know, the ADA in every one of its titles is enormously complex.
Unless you are talking about exquisite federal regulation talking about safety sensitive jobs, “safety sensitive,” is not a thing (unless you are talking about the burden of proof), under the ADA. Instead, the question is whether the person with a disability is a direct threat to self or to others per Chevron v. Echazabal, which we have discussed many times in the blog, such as here.

Understanding the ADA

menu

EEOC v. William Beaumont Hospital Redux

Are Retaliation and Interference Claims Viable under the Rehabilitation Act in Employment Matters? The Sixth Circuit Says No

ADA and 504 as an Alternative to §1983 in Excessive Force Cases

Have no Idea as to Why Defense Side Attorneys Keep Defending on the Grounds that an ADA Disability Does Not Exist

In Architectural Barrier Litigation, Plaintiff’s Motivation Doesn’t Matter if Plaintiff Has Transacted Business

Let’s Count the Ways Alcoholism is a Disability

Eighth Amendment, Title II, and Nondelegable Duty

Direct Evidence Cases do Exist and Other Good Stuff

Religious Freedom and Remote Work ADA Implications and the Latest With HUD and Animals in Housing

Inflexible Return to Work Policies Can Cost You Big Time

Understanding the Americans with Disabilities Act, Fourth Edition

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