Unlawful Disclosure is a Separate Private Right of Action Under Both the Rehabilitation Act and the ADA and other stuff

By William Goren on August 11, 2025

Posted in 501, 504, ADA, Federal Cases, Final Federal Regulations, FMLA, Rehabilitation Act, Title I

Today’s blog entry came down to a close call between two cases that were decided last week. In the first case, Robin Shea, of Constangy Brooks, discussed a religious accommodation case, here, which also has significant implications for the disability rights universe. I highly commend her blog entry. I do plan to blog on that case myself. The case that did make the cut for this week is Mullin v. Sec., US Department of Veterans Affairs, here, a published per curiam decision from the 11^th Circuit decided on August 8, 2025. I actually know one of the plaintiff’s lawyers involved in Mullin, but I am not involved in that case at all. He is aware that I was planning on blogging on the case. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning affirming summary judgment on the disability discrimination claim; court’s reasoning affirming summary judgment on the failure to accommodate claim; court’s reasoning reversing summary judgment on the unlawful disclosure claim; court’s reasoning affirming summary judgment on the retaliation and hostile work environment claim; Judge Tjoflat concurring opinion; Judge Jordan concurring and dissenting opinion; and thought/takeaways. Of course, the reader is free to focus on any or all of the categories.

Facts

The facts are quite numerous but can be condensed quite a bit. Plaintiff is a current employee of the Department of Veterans Affairs. In July 2010, she began experiencing respiratory issues at work and believe the building she was in was causing the respiratory problems. That led to a back-and-forth where various accommodations were trotted out and none of them worked. In March of 2012, plaintiff was diagnosed with breast cancer. Her oncologist noted in a FMLA certification form that she required a six month absence at work for surgery, chemotherapy, and potential radiation. A few months after the cancer diagnosis, a steward with the union that plaintiff belonged to sent her an email mentioning that he had heard about her condition from a human resources manager, and he noted that the human resources manager believed that plaintiff’s breathing issues were caused by her tumor not by any problems with the building. Plaintiff was surprised to learn that the union steward knew about her cancer diagnosis, as the only people she had told were close friends and the Veteran Service Center manager.

Shortly after she came back to work, she informed the Department that the issues in the building were worsening her health condition and asked to further minimize the time spent in the building. On January 30, 2013, plaintiff met with a human resources specialist and a union representative where she requested additional accommodations, including working entirely from home or from a location other than the St. Petersburg office. She also asked to meet another employee outside her building to hand off paperwork so she would not have to go inside. The accommodations continued not to work and plaintiff kept insisting on a work from home arrangement. Eventually, three months later, the Department permitted her to work from home, though it required her to meet someone outside the building on Friday mornings to exchange work related papers. It is unclear whether that accommodation continued.

Court’s Reasoning Affirming Summary Judgment on the Disability Discrimination Claim

While §501 of the Rehabilitation Act, here, follows the rules of the ADA, causation is governed by §794(a), here, where the plaintiff must prove that the adverse employment action was solely by reason of her disability. So, a disability discrimination fails if the employer based the adverse employment action partially on disability and partially on other factors.
Plaintiff has not shown that any sick leave was denied even in part due to her disability.

III

Court’s Reasoning Affirming Summary Judgment on the Failure to Accommodate Claim

Viewing the record in the light most favorable to the plaintiff, the Department provided reasonable accommodations for plaintiff’s disability and ultimately provided her with the accommodation she desired, which was working from home full-time.
Plaintiff cannot fairly cast the period in which she was away from work due to her cancer treatment as an unreasonable delay on the part of the Department. The delay in granting plaintiff the accommodation of full-time work from home was actually three months when the time off for her cancer treatment is incorporated into the equation.
The record indicates that before the cancer diagnosis and upon her return from the cancer treatment, the Department addressed each of plaintiff’s accommodation requests and provided her with an accommodation. Many of those accommodations were in direct response to plaintiff’s own requests and suggestions. When those accommodations were unsatisfactory to the plaintiff, the Department permitted her to fully work from home and exchange work related documents with another employee at the building on Fridays.
Citing to another case, the court noted it had previously upheld the reasonableness of an employer requirement that a plaintiff encounter her direct supervisor.
While the Department did not provide the accommodation plaintiff wanted at first, it was only required to provide a reasonable accommodation that allowed her to perform the essential functions of the job. The Department did ultimately grant plaintiff her desired accommodations.
In assessing whether there was an unreasonable delay in granting an accommodation, courts consider: the length of the delay; the reason for the delay; whether the employer has offered any alternative accommodations while evaluating a particular request; and whether the employer acted in good faith.
The three month delay in granting plaintiff the requested accommodation of full-time work from home was not unreasonable given the intermediate additional accommodations provided by the Department that just didn’t work out.

Court’s Reasoning Reversing Summary Judgment on the Unlawful Disclosure Claim

The Rehabilitation Act incorporates the confidentiality provisions of the ADA.
Under those confidentiality provisions, a covered entity cannot require a medical examination and cannot make inquiries of an employee at the whether such an employee is an individual with a disability or at the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.
Information obtained from an employee through a medical examination or inquiry per 29 C.F.R. §1630.14(c)(1), must be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record.
The 11^th Circuit has not addressed previously whether there is a private right of action for disclosing confidential medical information. However, the 11^th Circuit has explicitly recognized that a plaintiff has a private right of action with respect to the medical exam and disability related inquiry provisions irrespective of disability status. The two statutory provisions run in parallel with each other as they have similar language and virtually identical prohibitions concerning medical inquiries and proof of damages requirements.
Accordingly, a private right of action under 42 U.S.C. §12112(d)(4) exists. In order to bring such a claim, an employee has to show: 1) the employer either made an unlawful inquiry in violation of §12112(d)(4)(A) or violated his confidentiality requirements after making a proper inquiry under §12112(d)(4)(C); and 2) the employee suffered a tangible injury from the unlawful inquiry or disclosure.
An employer must request a medical examination or inquire into an employee’s medical status for there to be an “inquiry,” under the Rehabilitation Act.
An employee’s voluntary disclosure of a medical diagnosis to a supervisor or coworker is not an examination or inquiry for purposes of §12112(d)(4).
When an employer conditions an employee’s access to statutorily protected leave on the submission of medical information, that is an “inquiry,” under §12112(d)(4).
The statute prohibits employers from making medical inquiries unless they are job-related and consistent with business necessity. That restriction cannot be avoided simply because the employer’s demand for information is embedded in the mechanics of leave approval.
The D.C. Circuit has held that an FMLA form was an inquiry as the employee revealed his medical diagnosis only after his employer, through his direct supervisor, told him in writing that he would face disciplinary proceedings unless he completed either the FMLA form or a medical certificate explaining the nature of his illness. The D.C. Circuit reasoned that even if the employee could be said to have submitted the FMLA request voluntarily, that hardly meant he volunteered his medical diagnosis. After all, it was the Postal Service acting pursuant to its statutory authorization, and not the employee that initiated the inquiry into his medical condition by asking for the medical certification. As a result, the FMLA form constituted an inquiry. That court said to hold otherwise, would lead employees to be forced to choose between waiving the right to avoid being publicly identified as having a disability or exercising their statutory rights.
The D.C. Circuit reasoning applies to this case. On March 14, 2012, the Department approved her FMLA leave and told her that if it should become necessary for her to extend her leave beyond the current certification, she would be required to provide an updated position’s statement from her health care provider.
A March 14, memorandum from human resources to the Veteran Service Center manager also recounted that the plaintiff was informed in writing that new medical documentation would be required if her leave exceeded the amount recommended by the healthcare provider. A few lines later, the memorandum said that it was the responsibility of the supervisor to notify the employee that new medical documentation is required when leave usage is not intermittent as defined by the healthcare provider.
When the Department approved her to work from home for three days and two days working in the office, the approval form allowed the Department to ask plaintiff to provide updated medical evidence to establish whether the accommodation should continue or be changed. It went on to say that if plaintiff’s condition changed or if a change in the accommodation was warranted, it was the plaintiff’s responsibility to notify human resources.
When the Department approved her FMLA request, it noted that she would not eligible for a new 12 week allotment of leave until her prior entitlement ended. The letter also told the plaintiff that if it should become necessary for her to extend her entitlement beyond the current certification, she may be required to provide an updated physician’s statement from her health care provider.
In short, plenty of evidence in the record shows that when plaintiff requested leave, the Department told her approval required submission of additional medical documentation, which is exactly what plaintiff did. As such, she did not volunteer the information, rather she disclosed it because under the Department’s previous letters it was clear that disclosing the information was the only way for her to maintain her leave and her pay. That kind of disclosure is not voluntary in any meaningful sense.
When an employee must share medical information to receive benefits guaranteed by law, that requirement operates as an inquiry by the employer.
The partial dissent blurs two distinct legal questions: whether the Department made a medical inquiry; and whether the Department later disclosed information obtained through that inquiry. Both of those two questions are analytically separate questions under the applicable statutes and must be considered entirely separately.
If both a prior voluntary disclosure and a later inquiry are involved, the proper question is whether the disclosure stemmed from the inquiry (prohibited by the Rehabilitation Act/ADA), or from the voluntary disclosure (not prohibited).
The partial dissent’s contrary approach would allow employers to bypass the Rehabilitation Act’s inquiry safeguard by seizing on a prior voluntary disclosure and treating all future demand for medical documentation as outside the statute’s reach.
Where an employer requires medical information as a condition of leave approval, that demand qualifies as a statutory inquiry regardless of any earlier voluntary disclosure; a conclusion that follows from both the text and the structure of the Act.
Once an inquiry has been shown, a plaintiff has to show that the confidential information from that inquiry was disclosed in violation of the Rehabilitation Act.
There is sufficient evidence in the record to find that a person in human resources was the source of the allegedly unlawful disclosure and that she obtained the information from the FMLA form. In particular: 1) an internal memorandum approving plaintiff’s FMLA leave request for her cancer diagnosis signed by the person in human resources stated that specific medical condition was intentionally left off to avoid accidental disclosure; 2) the union steward’s email to plaintiff stated that he had discussed with a person in human resources plaintiff’s cancer diagnosis: 3) although plaintiff said she spoke to a few people about her diagnosis, there is insufficient evidence that the union steward learned of her diagnosis from anyone other than the person in human resources; 4) Sharing a medical condition with a few relatives or close friends does not as a matter of law, make the condition nonconfidential; and 5) plaintiff testified that she never told the human resources person about her cancer diagnosis.
An issue of fact also exists as to whether the union steward learned of the cancer diagnosis before plaintiff told anyone at work.
A reasonable jury could find that the human resources person disclosed plaintiff’s cancer diagnosis to the union steward after the FMLA form was submitted.
To succeed on an unlawful disclosure claim, a plaintiff has to show at least some damages (emotional, pecuniary, or otherwise), caused by the violation of the confidentiality provisions.
Damages liability must be based on something more than a mere violation of that provision. In other words, there have to be some injury in fact that is the legal and proximate cause for damages to arise from the violation.
Plaintiff’s testimony in her deposition alleged that she suffered emotional distress because of the alleged unlawful disclosure of her cancer diagnosis. That testimony is enough to withstand summary judgment on the injury aspect of the unlawful disclosure claim.
Although documentation of emotional distress is not required, the record does contain two letters from the Department of Labor office of Worker’s Compensation Programs updating plaintiff’s medical conditions in her file. If the diagnosis contained in those files are connected to the alleged unlawful disclosure, a jury could reasonably find that plaintiff suffered a tangible injury from the disclosure.

Court’s Reasoning Affirming Summary Judgment on the Retaliation and Hostile Work Environment Claims

A person cannot allege a retaliation claim when it is disguised as a failure to accommodate claim.
A hostile work environment claim contains four elements: 1) plaintiff belongs to a protected group; 2) plaintiff was subjected to unwelcome harassment; 3) the harassment was based on a protected characteristic; 4) harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatory early abusive working environment; and 5) plaintiff’s employer was responsible under a theory of vicarious or direct liability.
The severe or pervasive element contains both a subjective component and an objective component. That is, the employee must subjectively perceive the harassment as severe or pervasive enough to change the term condition of employment, and the perception must be objectively reasonable.
In assessing the objective component, the factor to look at are: 1) the discriminatory conduct’s frequency; 3) whether it is physically threatening or humiliating or a mere offensive utterance; and 4) whether it unreasonably interferes with an employee’s work performance.
Plaintiff did not provide enough evidence demonstrating how the Department’s handling of her continued request for accommodation was sufficiently severe or pervasive.

Judge Tjoflat Concurring Opinion

A shotgun pleading can be divided into four categories: 1) a complaint containing multiple counts were each count adopts the allegations of all preceding counts; 2) a complaint replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action; 3) a complaint committing the sin of not separating into a different count each cause of action or claim for relief; and 4) a complaint committing the rare sin of asserting multiple claims against multiple defendants without specifying which of the defendant are responsible for which acts or omissions, or which of the defendants the claim is brought against.
Plaintiff’s complaint falls into the first category of §VI (1) of this blog entry.
The failure to disclose claim hinges on a single alleged disclosure. However, the complaint incorporates over 100 paragraphs of unrelated material into that count. The incorporation of prior material into that count of the complaint muddles the claim, burdens the defense, and invites the court to sift through the narrative to reconstruct a viable theory. The resources required of the judiciary in that situation is substantial and it should not be the proper function of courts to parse out incomprehensible allegations.
While the plaintiff has a shotgun pleading as described in §VI(1)(1), the defense in this case didn’t do anything about it either.

VII

Judge Jordan Concurring and Dissenting Opinion

An FMLA form can be an inquiry when it is provided by the employer to the employee without the employee having first disclosed her medical condition. However, the record in this case is not clear and presents a genuine issue of fact as to whether an inquiry was made as to plaintiff’s medical condition, i.e. her cancer diagnosis.
Sister circuits have held that voluntary disclosures of medical information-as opposed to those acquired from a medical inquiry where medical examination first requested awarded by the employer-do not constitute an inquiry of §12112(d).
If the employee voluntarily disclosed medical information to the employer without the employer specifically demanding the information first, then the employer has no duty to keep that information confidential.

VIII

Thoughts/Takeaways

The confidentiality requirements are strictly a Title I requirement and do not extend to the other Titles of the ADA.
This court holds that the ADA’s confidentiality requirements apply equally to the Rehabilitation Act.
§501 of the Rehabilitation Act specifically states that it is the ADA’s Title I statutory and regulatory provisions that apply.
The courts, certainly after this case, are split on whether the causation requirements of §504 (sole cause), applies to §501 of the Rehabilitation Act. Since §501 of the Rehabilitation Act incorporates the ADA, many courts have said that the Title I of the ADA’s causation standard, “on the basis of,” applies and not the §504 causation standard (sole cause). Certainly, an argument can be made that the language of §501 v. §504 of the Rehabilitation Act are so different that the two sections could have different causation standards. It will be interesting to follow how this particular issue plays out in the courts.
Unreasonable delay is actionable, as we discussed here. This case lays out the factors that will be considered where a person is claiming an unreasonable delay in granting accommodations.
Unlawful disclosure of information contained in disability related inquiries or medical exams does constitute a separate private right of action.
You don’t have to be a person with a disability to make a claim for violation of the confidentiality provisions.
While voluntary disclosure of a medical diagnosis to a supervisor or coworker is not an examination or inquiry, if that disclosure is being made in response to certain processes mandated by the employer, such as seeking FMLA leave, that disclosure is no longer voluntary regardless of whether a person may have told a few other people.
Proving up and unlawful disclosure claim means showing that an inquiry was made, information was disclosed through that inquiry, and the disclosure stemmed from that inquiry. There must also be damages beyond the mere violation (emotional distress qualifies for that purpose).
Considering Judge Tjoflat’s concurring opinion, plaintiff attorneys may need to reconsider pleading practice that literally goes back decades. That is, it has been true for decades for every count of a complaint to allege all of the facts stated in the facts section of a complaint. I had never thought of that as a shotgun pleading before, though the other examples of shotgun pleading I was aware of. The danger is Iqbal Twombly requires plenty of factual information for it to survive a motion to dismiss. Cutting down a pleading may risk running int Iqbal/Twombly issues. One wonders whether plaintiff attorneys, considering this practice goes back literally decades all around the country, will change how they do complaints as a result of this concurring opinion.
The section of Judge Tjoflat’s concurring opinion where he states that an employee voluntarily disclosing medical information to the employer without the employer specifically demanding the information first, gives the employer the right to spread that information is terribly problematic because it will discourage persons with disabilities from requesting reasonable accommodations for their disabilities.
Even though this is a per curiam decision, it is published and therefore, precedential.
It will be interesting to see if an en banc rehearing is requested or if cert. is sought. Issues that are unclear after this decision include: 1) whether the causation standard for §501 of the Rehabilitation Act is actually the same as the one for §504 of the Rehabilitation Act; 2) whether it is really crystal clear that the Rehabilitation Act incorporates the ADA’s confidentiality provisions of Title I; and 3) whether if §504 applies to §501, does that mean emotional distress damages are out per Cummings v. Premier Rehab Keller, which we discussed
It is not that unusual anymore for current employees to bring discrimination claims against their employers. I would expect that trend to continue now that Muldrow has been decided, here.

A Twofer: A Short Discussion of How Far the Honest Belief Rule Extends and What Constitutes a Judicial Act

By William Goren on August 5, 2025

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

Today’s blog entry is a real short one. I actually have quite a pile of cases to blog on, but I ultimately decided to keep it short. In particular, I wanted to focus on a couple of different concepts that come up frequently. The first point arises in the case of Gray v. State Farm Mutual Company, a published decision decided by the Sixth Circuit on July 25, 2025, here. The second point arises in the case of Mullane v. Moreno, an unpublished decision from the 11^th Circuit decided on May 14, 2025, here. As usual, blog entry is divided into categories and they are: Mullane; importance of Mullane to the disability universe; and Gray and its importance to the disability universe. This blog entry is so short that the reader will probably want to read the whole thing.

Mullane

You cannot sue federal governmental employees for tortious actions done within their scope of employment. So, the question is whether a federal employee acts outside the scope of their employment. In this case, the question is whether a judge acted outside the scope of his employment with respect to referring someone to the State Bar for discipline. The actual facts are a bit of a mess, but aren’t relevant for our purposes. The court said that whether an act is a judicial act depends upon: 1) the nature of the act itself (whether it is a function normally performed by a judge); and 2) the expectation of the parties (whether they dealt with the judge in his judicial capacity). In this particular case, the court said that the judge acted within his official capacity.

Importance of Mullane to the Disability Universe

I get calls at least a couple of times a month regarding judges just not acting the way they should with respect to reasonably accommodating litigants or even attorneys with disabilities. Many courts have set it up so that the judge makes all the decisions with respect to any reasonable modifications that may be necessary. Doing it that way increases the chances of judicial immunity being upheld. This court said that actions relating to scheduling and conducting a hearing as well as recusal orders are plainly judicial acts entitled to immunity. So, anything else needs to explore whether what occurred was a function normally performed by a judge, and whether the judge actions were conducted in the judge’s judicial capacity.
Applying these two factors in a reasonable modification situation isn’t so simple. A lot of the accommodations pertain to the way the court need to go about it business. For example, persons with disabilities may need adjustments in scheduling. It also is not unusual for persons with disabilities to need adjustments in the way any hearings proceed. On the other hand, deciding on reasonable modifications is not an inherently judicial act. For example, the process for deciding what is a reasonable modification shouldn’t be really any different from the process for deciding what is a reasonable accommodation for an employee to do their essential functions of the job as the meaning of the two terms are identical. The latter is certainly not a judicial act. Also, the mere fact the judge makes the decision should not insulate the judge. Otherwise, a judge has carte blanche to ignore their obligations under Title II (assuming a state judge).
The case is useful for setting forth a standard for what is a judicial act (the court actually lifted the two-part test from a Supreme Court decision discussing sterilization of a person with intellectual disabilities). However, when it comes to reasonable modifications (the term used for Title II and Title III of the ADA when it comes to accommodating persons with disabilities in court proceedings) in the courtroom, the two-part test is about as clear as mud.

IIII

Gray And Its Importance to the Disability Universe

In this case, Gray sued for disability discrimination. The employer put together various documents to justify the termination, but it did so by compiling those documents using the evidence it had in a very selective way. The court said that the honest belief rule does not apply because of the selective reports the employer used in justifying the termination.
The importance of the case is that the honest belief rule is not automatically a successful defense for the employer. If an employer is going to terminate someone based upon the evidence they have, that evidence cannot be selective and must be the actual evidence.
Gray is a published decision.

Regarded As Discussed with Clarity Rarely Seen Before and Adverse Action After Muldrow

By William Goren on July 27, 2025

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

The ADA turned 35 this weekend. HAPPY ANNIVERSARY!!!!!!!!!!!!!!!!!!!!!!!

This week’s blog entry is a two-for-one. In the first case, we discuss a case, Meza v. Union Pacific Railroad Company, here, decided by the Eighth Circuit on July 25, 2025. In this case, the Eighth Circuit discusses the regarded as prong of the ADA with a clarity I rarely see. It doesn’t move the needle with respect to existing principles, but the clarity with it presents those principles is something that I do not often see. In the second case, Scheer v. Sister of Charity of Leavenworth Health System, Inc., here, we discuss a case with far broader implications than just the facts presented in that case. This particular case builds on the Muldrow decision with respect to what is an adverse action. As usual, the blog entry is divided into categories and they are: Meza facts; Meza court’s reasoning that plaintiff had established genuine issues of material facts with respect to whether he had been regarded as having a disability; Meza thoughts/takeaways; Scheer facts; Scheer court’s reasoning that plaintiff had established genuine issue of material facts with respect to whether she had been subject to an adverse action by referral to an EAP; and Scheer takeaways. Of course, the reader is free to focus on any or all of the categories.

Meza Facts

Meza had worked for Union Pacific for over twenty years when he had a serious non-job-related motorcycle accident. It required him to spend several days in the hospital recovering from a brain hemorrhage. Fortunately for him, his treating physicians thought his brain injury would not have lasting effects. One, a radiologist, determined from an MRI that “no specific or acute intracranial abnormality” existed and only “a small amount of fluid in the left mastoid air cells” remained. From there, his neurologist cleared him to return to his regular work and life activities. In his view, Meza had made a “full recovery,” at least with respect to his “dizziness, vertigo, and skull fracture.”

Union Pacific was not as sure Meza was ready to return. Its medical examiner feared that his brain injury could cause unpredictable seizures—a conclusion consistent with medical guidelines from the Federal Motor Carrier Safety Administration. Presumably concerned about the danger of an on-the-job seizure with heavy machinery around, the examiner recommended restricting Meza’s work activities for five years. Unfortunately, the restrictions ruled out a return to his old position, which left him searching for another job in the meantime.

Meza sued for discrimination and lost on summary judgment. Meza appealed.

Meza Court’s Reasoning That Plaintiff Had Established Genuine Issues of Material Facts with Respect to Whether He Had Been Regarded As Having A Disability

Unlike suits based on a present physical or mental impairment, regarded as claims per 42 U.S.C. §12102(3)(A), do not require an employee’s perceived disability to place a limit on a major life activity.
Plaintiff’s arguments (Union Pacific’s stated reason for sidelining the plaintiff-the possibility he would suffer seizures following a traumatic brain injury-was all but an admission by the company that it kept him out of work because it regarded him as disabled; and a belief is enough for a regarded as claim), both hold up.
The report from Union Pacific’s medical examiner supports plaintiff’s argument. One part of that report discusses a chemical alteration and injury to plaintiff’s brain that would result in an ongoing unacceptably increased risk of procedures and other neurological events. As such, a reasonable jury could interpret that as creating a perception among Union Pacific’s decision-makers that plaintiff’s brain had become impaired.
It doesn’t matter whether plaintiff’s brain was truly impaired. What is important is that based upon the report, Union Pacific may have thought it was and acted on its belief by imposing work restrictions.
Through Union Pacific’s impact on the terms, condition, or privileges of plaintiff’s employment, a jury could find that Union Pacific violated the ADA.
A genuine issue of material fact exists about whether the chemical alteration the examiner identified was itself in impairment, even if it would only be clear to others if plaintiff began having seizures.
The situation of plaintiff is analogous to a person with epilepsy. No one doubts that epilepsy is a disability, so why would plaintiff’s condition be any different. Union Pacific at this stage of the litigation has no answer for that.
It is possible that the court below could grant summary judgment on another ground it did not previously reach. Open questions that remain include but are not necessarily limited to: whether plaintiff was qualified per the ADA for the job after his motorcycle accident; and whether his injury resulted in a direct threat to the health or safety of others in the workplace.

III

Meza Thoughts/Takeaways

This case to my mind, does not break any new ground. What it does do is talk about regarded as with a clarity that I rarely see.
For a regarded as claim, belief is enough.
One of the issues remaining on remand is the issue of direct threat, which we have discussed numerous times before, such as here. Direct threat is a high bar as it requires an individualized analysis and must be based upon the best/current objective medical evidence. With respect to direct threat, the two cases you want to look at our School Board of Nassau County, Florida v. Arline, and Chevron v. Echazabal, here and here. You can also find many Understanding the ADA blog entries discussing both of these cases and the concept of direct threat by using the blog search engine.
It is a bit ominous for the plaintiff that the court cite to Stanley, which we discussed here, with respect to whether the plaintiff is qualified per the ADA.
While the court just mentioned direct threat to others, in the employment context, direct threat apply to self or others per Chevron v. Echazabal.
When it comes to the ADA, an individualized analysis is always required.

Scheer Facts

From 2014 to 2019, plaintiff was employed as a representative and physician billing department. Her job performance was inconsistent. Within the first four years of her employment, she was issued seven corrective actions based on her failure to productivity targets. She was also counsel for professional and behavioral issues. Eventually, her supervisors recommended placing her on a performance improvement plan aimed at increasing her consistency at work.

One day before the performance improvement plan was drafted, plaintiff expressed to a coworker, her supervisor, and her department manager that she was struggling with personal issues. All three reported concern for plaintiff’s mental well-being and safety, and one of them even mentioned talks of suicide. Accordingly, the PIP would suggested to address those behavioral concerns by imposing an action plan consisting of a mandatory referral to the employee assistance program for counseling.

While the plaintiff, signed the performance improvement plan, she refused, after consulting with an attorney, to consent to the mandatory EAP referral. As a result of her refusal, plaintiff was terminated. Plaintiff then sued under both the ADA and the Rehabilitation Act alleging that she had been fire based upon its erroneous perception that she suffered from a disability of mental illness. The district court granted summary judgment and plaintiff appealed.

Scheer Court’s Reasoning That Plaintiff Had Established Genuine Issue of Material Facts With Respect To Whether He Had Been Subject To An Adverse Action By Referral To An EAP

To obtain relief under the ADA, plaintiff has to prove: 1) she is a disabled person as defined by the ADA; 2) she is qualified with or without reasonable accommodation to perform the essential functions of the job held or desired; and 3) she suffered discrimination by an employer because of that disability.
Proving causation requires an ADA plaintiff to show that they have suffered an adverse employment action because of a disability. Prior case law in the circuit, defined adverse employment actions those constituting a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or decision causing a significant change in benefits. The district court applied this standard. However, soon after the district court issued its order, the Supreme Court unambiguously changed this legal standard in it Muldrow decision, which we discussed here.
In Muldrow, the Supreme Court held that an employment action is adverse if plaintiff can demonstrate that she experienced some harm respecting identifiable term or condition of employment as a result of that action. That means an employer’s action must have left the plaintiff worse off, but need not have left her significantly so (emphasis in opinion).
In a footnote, the court notes that while Muldrow arose under Title VII of the Civil Rights Act, its holding applies in full force across the board. Citing to a case that we discussed here, the court agreed that there was nothing in the text of Title VII decisions or otherwise suggesting Muldrow’s reasoning does not readily apply to nearly identical language of the ADA. Accordingly, the 10^th Circuit joins other circuits in holding that Muldrow’s some harm standard applies to ADA claims as well as Title VII claims.

Scheer Takeaways.

This case has wider implications than just these facts. As readers know, I often work with attorneys for health care professionals/health care students who are being pushed out of the profession/school due to their disability. The critical fact in Scheer that gives the case wider implications is the EAP Formal Referral Form. The Form would authorize New Directions (the EAP provider) to disclose to plaintiff’s employer whether Scheer: (1) attended counseling sessions; and (2) complied with the EAP’s recommendation, all of which is very similar to what is seen in the MLB/PHP world. See this blog entry.
The case is published and therefore, can be cited as precedent.
This case was eminently predicable as we discussed here over a year ago, here.
Unlike most situations I come across, Scheer was very smart to get an attorney involved immediately upon being mandatorily referred to the EAP. I strongly recommend that anyone mandatorily referred to an EAP or to a PHP get ADA knowledgeable counsel involved immediately.

Stay cool and safe!!!!!!

Landlords Can Charge a Fee for ESA’s/Pets and the Impact of Loper Bright

By William Goren on July 20, 2025

Posted in ADA, Administrative law, Constitutional law, Fair Housing Act, Federal Cases, Guidances, Title III

This week’s blog entry come to me courtesy of Clinical Law Prof. Emeritus Leonard Sandler of the University of Iowa Law School. It asks the question of whether a landlord can charge a pet deposit for an ESA (emotional support animal). Loper Bright also comes up as well. The case of the day is Henderson v. Five Properties LLC, here, decided by the United States District Court for the Eastern District of Louisiana on July 16, 2025. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that a fee for ESA’s is permissible in most circumstances; court’s reasoning that HUD guidances on not charging fees for ESA’s do not survive Loper Bright; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

Facts

Five Properties allows pets. However, owners of pets have to pay a fee. Plaintiff requested that the fee be waived because her dog was an emotional support animal. She could pay the fee if it was on an installment plan but believed the law exempted her from a fee altogether. When plaintiff sued under the federal Fair Housing Act (FHA) and its Louisiana equivalent, Five Properties counterclaimed for breach of contract arising of the unpaid rent and damages caused by the dog (in light of the way the court decided the case, the court declined to exercise supplemental jurisdiction over the breach of contract claim and dismissed the defendant’s state law claims without prejudice).

Court’s Reasoning That a Fee for ESA’s Is Permissible in Most Circumstances

Under both the FHA and its Louisiana equivalent, discrimination includes a refusal to make reasonable accommodations in rules, policy, practices, or services, when such accommodations may be necessary to afford that person equal opportunity to use and enjoy a dwelling.
Proving up a failure to reasonably accommodate in the fair housing context involves: 1) the residents of the affected dwelling or home suffer from a disability; 2) they requested an accommodation from the defendant; 3) the requested accommodation was reasonable; and 4) the requested accommodation was necessary to avoid the residence equal opportunity to use and enjoy the home.
Many types of residential fees affect persons with disabilities as well with persons without disabilities equally and those fees are clearly proper.
Fees that merit closer scrutiny are those with unequal impact imposed in return for permission to engage in conduct that under the FHA a landlord is required to permit. The inquiry to determine if a generally applicable fee does this is highly fact specific requiring a case-by-case determination.
Proving whether an accommodation is necessary means that a plaintiff must show the requested accommodation makes the home therapeutically meaningful or financially viable.
Courts consider necessity in light of: 1) the statutory provision’s language; 2) the purpose of the FHA and the ADA to ameliorate the person’s particular disability; and 3) the proposed alternatives.
A preferable accommodation alternative is not sufficient, rather it must be essential. To be therapeutically necessary, an accommodation must be indispensable, requisite, essential, needful that cannot be done without or is absolutely required. That is, the accommodation must be so necessary and so closely linked to the individual’s disability that without the requested accommodation, the benefit provided would be so insignificant so as to deprive the person with a disability from the opportunity to use and enjoy the dwelling of their choice as compared to those without disabilities.
A requested accommodation is necessary only if the plaintiff shows that without the requested accommodation, they will receive no ameliorative effect from the disability, thereby depriving them of the equal opportunity to enjoy the dwelling.
Therefore, to have the fee waived, plaintiff must show that her requested accommodation is indispensable and essential to alleviating the effects of her disability.
Plaintiff put forward no evidence to demonstrate that waiving the fee would alleviate any effects of her disability. Rather, a payment plan for the animal fee would have been effective, and defendants offered twice to establish a payment plan so that the plaintiff could afford the fee. Further, plaintiff stated she could have paid the fee if it had been broken out into installments.
When considering the reasonableness of a generally applicable fee to everyone, a court needs to consider factors such as: 1) the amount of fees imposed; 2) the relationship between the amount of fees and the overall housing cost; 3) the proportion of other tenant paying such fees; 4) the importance of the fees to the landlord’s overall revenues; and 5) the importance of the fee waiver to the tenant with a disability.
In this case, the animal fee was a one time payment of $400.24. The overall housing cost was $910 a month for a term of 15 months. Therefore, the fee was a little under 3% of the total cost of housing.
Plaintiff did not provide any information about the importance of the fee to the landlord’s overall revenue. She also provided no evidence on the number of other tenants paying the fee. Finally, plaintiff submitted no evidence that the fee had an unequal impact on or was designed to wrongly target individuals with disabilities. She also failed to establish the importance of the fee waiver to her.
Animal fees are relatively typical for apartment buildings allowing animals.

III

Court’s Reasoning That HUD Guidances on Not Charging Fees for ESA’s Do Not Survive Loper Bright

It is the role of the courts not the agency to interpret constitutional and statutory provisions.
Plaintiff’s cited agency interpretation, which was not derived from formal adjudication or formal rulemaking, are entitled to respect only to the extent that they have the power to persuade.
The weight of the agency’s interpretation depends upon the thoroughness of the evidence in its consideration, the validity of its reasoning, and its consistency with earlier and later pronouncements.
HUD’s notice is unpersuasive for numerous reasons: 1) the regulatory authorities cited by HUD in its guidance do not provide thorough reasoning in its interpretation or offer any explanation or authorities for its cursory statement regarding the payment of fees; 2) HUD specifically states that the joint statement is not intended to imply that it is binding statutory or regulatory authority; 3) the cases cited by HUD for the authority waiving fees do not refer to the joint statement with respect to animal fees nor do they even deal with the question of animal fee at all; 4) another case cited by HUD refers to the joint statement with no discussion of the cited authority and merely restated the joint statement’s brief conclusion. It also involved a fee that was not generally applicable to everyone; 5) yet another case cited by HUD, referred to the joint statement as if it were binding, but that is no longer the case after Loper Bright.
Just because the joint statement or the notice (the HUD circular), may be convincing on other topics, does not make the entire documents influential.
Plaintiff failed to establish that the waiver of the fee was necessary and reasonable.

Thoughts/Takeaways

A critical fact here is that the landlord charged a fee for pets. This was not situation where the landlord did not allow pets.
Generally applicable fees are okay.
An accommodation under the FHA must be necessary and the plaintiff has the burden of proof on that. Whether the accommodation is necessary is a relatively high burden to meet as the accommodation must be so necessary and so closely linked to the individual’s disability that without the requested accommodation the benefit provided is so insignificant so as to deprive the person with the disability the opportunity to use and enjoy the dwelling of their choice when compared to those without disabilities.
Reasonableness of the fee is something that can be litigated, and showing the fee is unreasonable depends on a variety of factors that is hard for a plaintiff to meet.
A year ago, here, Richard Hunt and I were simultaneously discussing in our own blogs the impact of Loper Bright in the FHA world. I raised the question of whether the HUD circular on service animals and emotional support animals would survive Loper Bright. Now we have a case saying that the HUD circular, at least in part, does not survive, at least in Judge Vance’s (the author of the opinion), courtroom in the Eastern District of Louisiana.
Richard just blogged on the case discussed in this blog entry in his blog, here.
Definitely look for other aspects of the HUD circular to be challenged on Loper Bright grounds, now that one aspect of it has been successfully challenged in a court.
It is entirely possible that Loper Bright might help individuals with disabilities as well. For example, the HUD circular lists certain kinds of animals that may be typically allowed. However, Loper Bright would allow a person with a disability to claim that an animal not listed or subject to a higher scrutiny (an uncommon animal), might survive because the animal was serving a purpose listed by the other animals. On the ADA side, one wonders if Loper Bright would not allow a court to extend protections to a dog that is utilized as a hearing dog that is used for residential purposes only (for example, a person takes their service dog on a train with them, but the dog does not accompany them everywhere on the train as the dog is used for residential purposes). I have been told that is not uncommon for members of the Deaf/deaf/Hard of Hearing communities who have hearing dogs to use their service animals for residential purposes only (it is certainly true in my case).
This decision strictly applies to ESA’s and not to service animals. It is an entirely different kettle of fish so to speak if a service animal is involved. Also, particularly with respect to psychiatric service animals, the line between a service animal and an emotional support animal can be quite small. In light of this decision, look for more claims going forward that the dog, when a dog is involved, is a service animal and not an ESA.
This case gives landlords who allow pets on the premises for AP, a powerful tool, the charging of a generally applicable fee for pets/ESA’s, for discouraging people from claiming an ESA is involved.
For landlord that do not allow pets on their premises, the case also sets a very high standard for a plaintiff with respect to showing the necessity of meeting the animal.
Of course, if a landlord decide to use the tools of this case, it may get very expensive to have the tools of this decision upheld by a court. Since applicable only up Loper Bright is a moving target and just beginning, it would not be surprising to see courts reach a variety of conclusions as to how this kind of situation and others involving ESA’s play out.
It will be interesting to see whether Five Properties having won, now elects to pursue their state law breach of contract claims in state court.

Stay cool everyone!!

ABA Formal Opinion 517 and How it Pertains to Persons with Disabilities

By William Goren on July 13, 2025

Posted in ADA, Legal malpractice, Title II, Title III

This week’s blog entry discusses ABA Formal Opinion 517. That opinion talks about discrimination in the jury selection process under ABA model rule 8.4(g) which prohibits attorneys from discriminating on the basis of various protected characteristics. As readers of my blog know, this has been a long-standing interest of mine. For example, we discussed peremptory challenges and persons with disabilities, here and here.

The blog entry is divided into the categories of highlights of opinion and thoughts/takeaways. It’s pretty short, so the reader will probably want to read the whole thing, but of course the reader is free to focus on either category or both. Finally, I am a member of the ABA Law Practice Ethics and Professionalism Committee. However, the opinions contained in this blog entry, what you will find in the thoughts/takeaways section of this blog entry, are my own and do not represent or are meant to represent the opinions of any other member of the committee or the committee itself.

Highlights of Opinion

A lawyer who knows or reasonably should know that the lawyer’s exercise of peremptory challenges constitutes unlawful discrimination in the jury selection process violates Model Rule 8.4(g).
It is not “legitimate advocacy” within the meaning of Model Rule 8.4(g) for a lawyer to carry out a trial strategy that results in unlawful juror discrimination.
A lawyer may not follow a client’s directive or accept a jury consultant’s advice or AI software’s guidance to exercise peremptory challenges if the lawyer knows or reasonably should know that the conduct constitutes unlawful juror discrimination.
However, a lawyer does not violate Rule 8.4(g) by exercising peremptory challenges on a discriminatory basis where not forbidden by other law.
Rule 8.4(g) provides: It is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.
In a footnote, the opinion says that United States v. Harris, 197 F.3d 870 (7^th 1999), decided that persons with disabilities do not have the right to have Batson challenges exercised on their behalf.
Striking prospective jurors on a discriminatory basis in violation of substantive law governing jury selection is not legitimate advocacy.
Conduct that has been declared illegal by the courts or a legislature cannot constitute “legitimate advocacy.” Put another way, a lawyer who violates Batson has engaged in unlawful discrimination in the jury selection process which, by definition, cannot be deemed “legitimate” conduct. Comment [5] states that a trial judge’s finding of unlawful juror discrimination is not, alone, enough to prove a violation in a discipline proceeding.
A judge’s finding of a Batson violation, under the procedures set forth in the case law does not automatically equate with a Rule 8.4(g) violation, particularly given the higher burden of proof that may apply in disciplinary proceedings.
A disciplinary hearing may yield more complete information and enable the lawyer to offer a more fulsome explanation for exercising peremptory challenges than may have been available during jury selection in the trial in question. For example, to preserve client confidentiality, the lawyer may have provided limited information about the reasons for peremptory challenges or the judge may have needed to make a quick ruling without a full and fair evidentiary hearing. In addition, the extent and severity of unlawful juror discrimination is relevant to a disciplinary authority’s decisions, including whether to investigate the matter at all.
The history of what is now Comment [5] to Model Rule 8.4 (previously Comment [3]) suggests that the “Batson exception” to Model Rule 8.4(g) was based on concerns voiced by the ABA Criminal Justice Section that a trial judge’s subjective decision in the midst of trial to disbelieve a lawyer’s neutral explanation for striking a juror should not become conclusive evidence in a later disciplinary prosecution over discriminatory conduct.
In addition, Comment [5] is limited to a “trial judge’s” finding of juror discrimination. It says nothing about how a decision by another court (such as an appellate court or a court conducting a habeas review) based on a more fulsome record should be treated if that court finds that a lawyer engaged in unlawful juror discrimination.
A lawyer’s unlawful exercise of peremptory challenges does not violate Rule 8.4(g) unless the lawyer “knows or reasonably should know” that the exercise of a peremptory challenge is impermissibly discriminatory. Many rules incorporate a knowledge standard, and “knows” is a defined term in the Model Rules. There may be situations where a lawyer violates Batson but does not know it, because the lawyer erroneously believes that the lawyer’s genuine bases for exercising peremptory challenges do not discriminate based on impermissible attributes. In that event, the question will be whether the lawyer “reasonably should have known” that the lawyer’s conduct was impermissible. Rule 1.0(j) defines “reasonably should know” to mean that “a lawyer of reasonable prudence and competence would ascertain the matter in question.” Ordinarily, when a lawyer decides whether to exercise peremptory challenges, rather than deferring to or relying on someone else, the lawyer will know the genuine reasons for the challenges.
Even so, the lawyer may be mistaken about the legal significance of these reasons. In that event, the question will be whether “a lawyer of reasonable prudence and competence” would have known that the challenges were impermissible.
Whether the lawyer has the requisite culpability will be a more difficult question when, to promote the attorney-client relationship or for reasons of trial strategy, the lawyer defers to others’ judgment.
If the client or jury consultant volunteers or acknowledges that the reason is race- or gender-based, then the lawyer who implements the client’s instruction or the consultant’s suggestion would be knowingly discriminating. That a lawyer acts at a client’s direction does not make otherwise unlawful conduct legitimate. When clients ask lawyers to engage in unlawful conduct, the Model Rules require lawyers to refuse.
Where the lawyer does not personally intend to discriminate on the basis of a protected class but may be advancing someone else’s intent to do so, the “reasonably should know” standard imposes a duty of inquiry. If, upon inquiry, the lawyer ascertains that the client or consultant has sincere reasons that are legitimate, not impermissibly discriminatory, then the lawyer may exercise the peremptory challenges; if an objection is made, or the judge questions the lawyer’s motivations sua sponte, the lawyer may advance those reasons. But if a reasonably competent and prudent lawyer would know that the reasons are pretextual, and that the proposed exercise of peremptory challenges is unlawful, then the lawyer must refrain from relying on the client or consultant.
A similar question about the lawyer’s culpability may be raised when the lawyer relies on software in making decisions about jury selection. It is conceivable that the lawyer could strike jurors for unlawfully discriminatory reasons, constituting purposeful discrimination in violation of Batson, even if the lawyer had no intention of doing so.
Whether a lawyer “reasonably should know” that the peremptory challenges were impermissibly discriminatory will depend on the circumstances. In the context of an AI-assisted program, lawyers should conduct sufficient due diligence to acquire a general understanding of the methodology employed by the juror selection program.
In the context of jury selection, a trial lawyer whose peremptory challenges are discriminatory but lawful has not violated Model Rule 8.4(g).
Therefore, even where unlawful juror discrimination is client directed, the lawyer has no obligation under the Model Rules to follow that direction. On the contrary, the lawyer would have an obligation to consult with the client about the manner in which the lawyer is legally permitted to conduct jury selection and explain any relevant constraints on the lawyer’s ability to carry out the client’s desired strategy.

Thoughts/Takeaways

As noted at the beginning of this blog entry, we have discussed peremptory challenges and persons with disabilities before. The ABA reference to United States v. Harris is unfortunate because that case is no longer good law. Harris holds that persons with disabilities cannot have Batson challenges exercised on their behalf because they fall in the rational basis class. However, Tennessee v. Lane, here, holds that when it comes to accessing the court system, persons with disabilities are not in the rational basis class at all. Accordingly, since the basis for the holding in Harris has clearly been superseded by Tennessee v. Lane, persons with disabilities have the ability to have Batson challenges exercised on their behalf, and United States v. Harris is no longer good law.
The other piece missing from this opinion is the ADA itself. As we first discussed in the blog here, complying with the ADA is a nondelegable duty. Also, lawyers and judges are subject to the ADA themselves when it comes to their actions in the courtroom either under Title II (if they work for a nonfederal governmental entity), title III (if they are part of a private law firm), or Title V (retaliation and interference provision of 42 U.S.C. §12203). So, a litigating attorney in the courtroom that does not understand their obligations under the ADA runs a real risk of interfering with ADA protected rights. A judge runs the risk of not only interfering with ADA protected rights but depending upon what they do when the rights are made known to them, retaliation as well. Of course, none of this accounts for any immunities, but even so the liability risks remain. See also this blog entry.
Not all states have adopted the ABA model rule on nondiscrimination. In fact, according to my very brief research, very few states have adopted this rule. One wonders if this opinion won’t act as a disincentive for states considering adopting this rule to not do so.
“Reasonably know,” means that a lawyer a reasonable prudence and competence would ascertain the matter in question (this kind of standard is very similar to a legal malpractice standard). With respect to persons with disabilities, that becomes incredibly complicated under this rule because lawyers should know something about the ADA as they have a nondelegable duty to know the ADA. So, you may need to have expert testimony as to what the ADA requires of them (serving in this capacity, as readers know, makes up a large part of my consulting practice).
Determining whether a decision to exclude a juror is based upon a disability or some other factor might be very difficult to ascertain. In other words, what is causation under this rule? Is it solely by reason of (§504), or is it on the basis of/by reason of (ADA). The distinction makes a difference. ABA Formal Opinion 517 doesn’t say what the causation standard is.
The opinion says that if the lawyer doesn’t personally intend to discriminate on the basis of a protected class but is advancing someone else’s intent, including AI, to do so, a duty of inquiry arises, which brings us back to causation…
As the ABA Formal Opinion reads, for discipline to ensue, a fuller record than just the granting of a Batson challenge will have to be made.
Tennessee v. Lane, here, is a must read for anyone dealing with a person with a disability as a prospective juror.
I have not been called for jury duty for years. Some states have statutes allowing persons with disabilities to get out of jury duty. Georgia has such a statute but it is supposed to only work with the consent of the prospective juror with a disability, though I don’t know if that is the actual practice.
There is case law out there saying that using AI to discriminate violates the ADA. See this blog entry. Both the EEOC and the DOJ during Pres. Biden’s term put out guidances on that. Those guidances, discussed here, which have since been rescinded, are still very helpful as a matter of preventive law.
Batson is the criminal version; the civil version is this case.
Here is where it gets weird. Federal courts that are not a part of executive agencies are neither subject to the ADA nor to the Rehabilitation Act. Therefore, with respect to a jury trial in such a federal court, the analysis could go like this. Per Tennessee v. Lane, persons with disabilities are no longer in the rational basis class with respect to accessing the courts, which undoubtedly includes serving on a jury. Therefore, Batson challenges and its civil equivalent can be exercised on behalf of a prospective juror with a disability. However, unless that prospective juror has a hearing loss, the nonexecutive agency federal court would not have to do anything to accommodate that juror so that the prospective juror can do their job as a juror (the judge for the nonexecutive agency federal court could elect to do something, but they don’t have to unless hearing loss is involved). Absolutely insane to think of it this way, but nevertheless that is the current state of the situation. The Administrative Offices of the Courts regulations (the regulations that federal courts not part of federal executive agencies have to follow), as far as I have been able to determine just focus on the hearing loss community when it comes to persons with disabilities.

What Notice is Required to Activate the Mandatory Reassignment Process Assuming a Mandatory Reassignment Process Exists in the First Place

By William Goren on July 9, 2025

Posted in ADA, Federal Cases, Title I

I hope everybody had a great Fourth of July weekend.

Today’s blog entry deals with a couple of different questions. First, in a situation where a person can no longer do the essential functions of the job with or without reasonable accommodations, is reassignment mandatory or is it subject to open competition? Second, what kind of notice does the employer need in order to activate the reassignment process, assuming it is mandatory. The case of the day is Equal Employment Opportunity Commission v. William Beaumont Hospital, here, decided in the process of considering motions for summary judgment on July 2, 2025, by the United States District Court for the Eastern District of Michigan. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning concerning the sufficiency of the notice necessary to activate the mandatory reassignment process; whether reassignment for a person who can no longer do the essential functions of the job with or without reasonable accommodation is mandatory; and thoughts/takeaways. Of course, the reader is free to read any or all of the categories.

Facts

The facts are actually quite involved but can be condensed quite a bit. Megan Shefke (for ease of understanding, we will refer to her as plaintiff even though the EEOC is technically the plaintiff), has Fabry disease, a condition causing her body to make too little of an enzyme to keep a fattie substance-GL-3, from building up in her body and causing problems with her heart. As a result, she has pain in her hands and feet that varies with temperature and activity, extreme fatigue, and enlargement of the left ventricle of her heart caused by the buildup of GL-3. She also suffers from pain flares leaving her unable to work at all. The condition can only be treated and manage as it is progressive and worsens over time. Rest and recuperation are necessary for managing her symptoms. She does take medication that slows but does not reverse the progression of her disease. Things ultimately got to the point where she could no longer do the essential functions of the job with or without reasonable accommodations. She then inquired about the possibility of working elsewhere at the hospital. She used the terms in her email subject line “ADA accommodation,” or “Re: ADA accommodations.” She also specifically asked to be placed in an open position she was qualified for as she claimed that was a fair expectation under the ADA. Subsequently she applied to several other part-time nursing positions within the hospital system, but did not inform anyone in HR or in Talent Acquisition that she had applied for those positions. Subsequently, plaintiff resigned from her position in order to take a job with another company after she had been rejected from all the jobs she had applied to. Finally, for each position she applied to, the hiring manager was not made aware that plaintiff was seeking the position as an accommodation for her disability.

Court’s Reasoning Concerning the Sufficiency of the Notice Necessary to Activate the Mandatory Reassignment Process, Assuming Reassignment Is Mandatory in the First Place

In order to show disability discrimination in the reassignment context, a plaintiff must show that she either requested and was denied, reassignment to a position for which she was otherwise qualified or that she requested some specific assistance in identifying jobs for which she could qualify.
If an employee request assistance in identifying vacant positions-even if the request is as generic as “I want to keep working for you-do you have any suggestions?,“ then the employer has a duty under the ADA to ascertain whether the employer has some job that the employee might be able to fill.
The employee is not required to use magic words such as “accommodation,” and “disability,” rather, the question is whether a factfinder could infer that the interaction constituted a request for an accommodation.
In the event of § II(2), (3) of this blog entry, overcoming summary judgment means that the plaintiff generally must identify the specific job she seeks and demonstrate that she is qualified for that position.
Once an employee requests an accommodation, the employer has a duty to engage in the interactive process.
Once the employee establishes a prima facie showing that she proposed a reasonable accommodation, the employer had the burden of showing how the accommodation would cause an undue hardship.
Failing to assist an employee in seeking an accommodation may suggest bad faith.
Plenty of published Sixth Circuit authority indicates that the ADA generally imposes an obligation on the employer and not on the employee to identify vacant roles once a request for transfer as an accommodation is made.
Sixth Circuit case law allows an employer to shift that responsibility to look at a broad range of jobs onto the employee if it has a legitimate, non-discriminatory administrative policy requiring an employee to apply for transfer to a new position within their restrictions. In that situation, an employer need not look into the suitability of jobs that the employee does not apply to.
The proposition that an employer must search for applicable vacant positions upon an employee’s request for transfer comes from cases outside of the Sixth Circuit.
If an employee generically requests only (emphasis in opinion), to be reassigned to a vacant position, then an employer can legitimately, in good faith and as part of the interactive process, ask the employee to put forward the first vacant position they wish to be considered for by using an internal job listing service in order to identify job that they believe they are qualified for. However, if an employee specifically requests help identifying (emphasis in opinion), vacant positions, then an employer must in good faith do at least some investigation into whether possible vacancies exist and propose those to the employee as part of the interactive process, even if they otherwise require applicants to go out and apply. Refusing to follow up on that request may constitute a breakdown of the interactive process for which the employer bears responsibility. It also creates an independent path to liability for a plaintiff that does not necessarily depend on what happened in regards to their request for a transfer more generally.
If an employee specifically requests help in identifying vacant positions, the employer is obligated to take three steps: 1) identify the full range of alternative positions for which the individual satisfies the employer’s legitimate nondiscriminatory prerequisites; 2) determine whether the employee’s own knowledge, skills, and abilities enable the employee to perform the essential functions of any of those alternative positions with or without reasonable accommodation; and 3) consider transferring the employee to any of those other jobs, including those that would represent a demotion. The facts in this case are unclear as to whether the employer had the right to shift the responsibility onto the employee and a jury must decide that.
While a plaintiff does have a burden as a matter of law to identify specific positions open at the time and that the employer could have transferred them to as an accommodation, that burden arises at the summary judgment (emphasis in opinion), stage, and does not necessarily translate to a strict requirement that a plaintiff identify them for the employer at the time of the request for accommodation (emphasis in opinion), itself (when that burden is merely part of the interactive process).
A Sixth Circuit opinion stating that a plaintiff has the evidentiary burden of pointing to a specific vacant position for which she was qualified, which she actually requested, and which was not provided to her, is dicta because that particular fact was not actually at issue in that case. It is also not the facts of this case as the plaintiff did apply for positions she was qualified for and identified particular positions that she actually sought at summary judgment. She also did not necessarily have to bring her application to Beaumont’s attention when they told her that applying was the best way to notify them of her interest.

III

Court’s Discussion of Whether Reassignment for A Person Who Can No Longer Do The Essential Functions of The Job With Or Without Reasonable Accommodation Is Mandatory

The courts are split on whether a reassignment is mandatory when a person can no longer do the essential functions of the job they are currently in with or without reasonable accommodations, but can do the essential functions of other jobs with or without reasonable accommodation within that company. The Seventh, 10^th, and District of Columbia Circuits land on the side of mandatory reassignment. The Third Circuit in an opinion not directly on point has indicated that it leans that way in an opinion by then Judge Alito. On the other hand, the Fourth, Fifth, Eighth, and 11^th Circuits go with the competitive bidding approach. The Sixth Circuit has not directly spoken on the issue.
The trouble with the line of cases taking the competitive bidding approach is that they ignore the statutory text and render reassignment meaningless if all that an employer has to do is to allow the employee to apply to vacant roles never have to hire them.
In a footnote, the court said that the duty to reassign does not extend to positions that are not vacant, that the applicant is not qualified for, or if it is not a reasonable accommodation or represents an undue hardship. Also, the employer has the authority to pick and choose which appropriate vacant job is to offer to the otherwise qualified employee with a disability.
The ADA per 42 U.S.C. §12111(9), requires employers to make reasonable accommodations, which can include reassignment to a vacant position.
While it is true that an employee’s application for transfer will necessarily conflict with the interest of other applicants for that same role, that conflict is only relevant if there is some pre-existing, pre-vested right of other employees at issue, which is not the case here.
Mandatory reassignment is reasonable in the run of cases because it generally applies when reassignment is the only remaining option (emphasis in opinion), for an employee with a disability.
Reasonable accommodation is a reasonable accommodation of last resort and is only required after it has been determined that: 1) there are no effective accommodations enabling the employee to perform the essential functions of their current position; or 2) all other reasonable accommodation impose an undue hardship.
Preferences are sometimes necessary to achieve the ADA’s basic equal opportunity goal. If that was not the case, then the protection of the ADA would be a paper shield. That is, an employer could, for example, tell an employee to apply to transfer to vacant positions, and then decide for each position to go with another candidate. They would then be claiming that reassignment was an option in theory, but denying it in practice.
In the same way that neutral office assignment rules might be required to occasionally yield to the covered employee requiring a ground-floor office, so too must generally neutral hiring considerations occasionally yield to a covered employee left with no option but to transfer into a vacant position accommodating their needs.
It is not the court’s role to decide as a matter of policy whether providing preferential treatment in reassignment to vacant positions is unfair to other applicants in a narrow band of cases were reassignment has become the only available option available to a current employee as that choice is written into the ADA itself.
In a footnote, the court notes that Congress did not reserve special status for healthcare industry when it comes to reasonable accommodation obligations.
While on the face of things, the opportunity to apply on equal terms with other candidate may look non-discriminatory, it is not a reasonable accommodation (emphasis in opinion), for the covered employee by the ADA’s own terms.
Beaumont Hospital was not required to assign the plaintiff to each and every one of the positions she applied for, instead they just had to pick one of them and they were free to choose whichever one they liked.
In a footnote, the court noted that the evidence revealed that the hospital’s most qualified hiring policy was already subject to exceptions, so an ADA exception would be only another exception among several.
Viewing the facts in a way most favorable to the plaintiff, the hospital’s most qualified hire system for transfer application resulted multiple times in the hiring of another external candidate over the plaintiff, who was an internal qualified transfer requesting a transfer as an accommodation. Assuming plaintiff can prove the remaining elements of her claim, that results in an ADA violation.
Plaintiff’s eventual reassignment without the hospital’s help, months after they did not hire her for position she applied to and was qualified for, does not speak to whether the hospital fulfilled its duties under the ADA as to the positions she identified.
The rest of the opinion goes into detail on each of the specific jobs that plaintiff applied to in light of the principles laid out in this blog entry. The end result of that analysis is the judge found numerous genuine issues of material fact existed and set the case for trial.
Early in the opinion, the court says that the plaintiff was undoubtedly a person with a disability and also otherwise qualified for the positions she applied to and granted summary judgment to the EEOC on those points.

Thoughts/Takeaways

It will be very interesting to see how this case plays out on appeal when that point comes. My problem with the court’s reasoning is to activate the mandatory reassignment process under this opinion, it focuses on form over substance. That is, a person has to make a request explicitly requesting assistance in identifying jobs for which he could qualify as one of the ways to activate the mandatory reassignment process. However, as we have discussed numerous times, magic words are not required to activate the interactive process for getting reasonable accommodations. Even the district judge in this case, admitted that magic words are not required.
Absolutely impossible to say which way the United States Supreme Court will land on with respect to mandatory reassignment. The Supreme Court will certainly consider the issue as the circuit courts are split on the question. For the reasons discussed in this section of the blog entry, it will not surprise me to see if the circuit courts also wind up splitting on the question of the sufficiency of notice needed to activate a mandatory reassignment process.
Mandatory reassignment is not the harder issue (it is either required by the ADA or it isn’t), but rather the notice needed to activate the mandatory reassignment process is the more difficult one. I struggle to understand why magic words are not required for outside the mandatory reassignment process when it comes to reasonable accommodation for an employee with a disability, but they are, or at least something close to that, required with respect to activating the mandatory reassignment process, at least according to this decision. It will be interesting to see whether other circuits adopt the view that magic words are not required when it comes to asking for a reasonable accommodation except in the case of activating the mandatory reassignment process.
If you are in the Southern District of Michigan and are an employee unable to do the essential functions of their job with or without reasonable accommodation, use the magic words of needing help identifying positions in order to activate the mandatory reassignment process. That is, magic words are not required except when they are.
Preventive law demands employers to act on the principle that magic words not be required for seeking reasonable accommodations in general AND for seeking the reasonable accommodation of reassignment.
Mandatory reassignment as a reasonable accommodation is a last resort.
While a plaintiff does have the burden to identify specific positions open at the time and that the employer could have transferred them to as an accommodation, that burden arises at the summary judgment (emphasis in opinion), stage, and does not necessarily translate to a strict requirement that a plaintiff identify them for the employer at the time of the request for accommodation itself when that burden is merely part of the interactive process.
Preventive law demands and employer work with the employee to find suitable positions they are a qualified person with a disability for, regardless of whether the employer’s particular circuit takes the mandatory reassignment approach or the competitive bidding approach.

Plaintiff Loses But Persons with Disabilities Going Forward Don’t

By William Goren on July 1, 2025

Posted in ADA, Federal Cases, Title I

Before getting started on the blog entry of the week, I want to wish everyone a happy Fourth of July holiday. Be safe and have fun.

Today’s blog entry is a published decision from the Fourth Circuit, Tarquinio v. Johns Hopkins University Applied Physics Lab decided on June 25, 2025, which can be found here, where the plaintiff with a disability loses, but there is some fantastic language in the opinion for persons with disabilities going forward. Other bloggers, such as Amy Epstein Gluck, have covered the case, but I thought I could add my own perspective. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that plaintiff did not pursue the interactive process properly; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

Facts

The facts are actually pretty straightforward and can be condensed quite a bit. Plaintiff has Lyme disease and worked for Johns Hopkins University Applied Physics Lab during the pandemic. As a federal contractor, Johns Hopkins had to make sure that everyone was vaccinated. Plaintiff was terrified that if she got vaccinated, the COVID antigens would cause her body to go crazy due to immune chaos. She submitted documentation to not have to take the vaccine. However, the documentation submitted was over nine years old. A subsequent back-and-forth ensued but she provided no current medical documents and no confirmation from her doctor. She also never consented to releasing her medical records. Plaintiff never gave the employer information that she had a condition contraindicated for receiving the COVID-19 vaccination according to CDC guidelines. In the end, plaintiff never got vaccinated and never got an exemption. Accordingly, the lab fired her. She sued alleging violations of the ADA.

Court’s Reasoning That Plaintiff Did Not Pursue The Interactive Process Properly

To make out a failure to accommodate claim, a plaintiff has to show that: 1) she was disabled; 2) the employer had notice of her disability; 3) she could perform the essential functions of her position with a reasonable accommodation; and 4) the employer refused to make such an accommodation. #4 requires an employer’s good-faith participation in the interactive process.
The interactive process is not an end in and of itself.
It is doubtful that an employer has a complete defense whenever it can blame the employee for a breakdown in that process.
The interactive process helps the employer discharge their duty to accommodate by giving employers and employees a chance to work together to figure out what accommodation, if any, is reasonable and not unduly burdensome.
An employer who doesn’t engage in good faith with the interactive process violates the ADA so long as a reasonable accommodation is possible.
An employer disrupting or sabotaging the process by which accommodations are determined is not providing its disabled employee with the equal opportunity the ADA mandates.
The interactive process gives the employer a chance to confirm that it has the duty to accommodate to begin with.
The ADA requires accommodating known limitations not known disabilities.
If an employee has a disability causing limitations that interfere with work and the employer knows it, then the employer must try to accommodate. However, if any link in that logical chain is missing, no duty arises and no liability.
The interactive process helps employers to make that threshold call. Employers do not need to take the employee’s word for it that the employee has a disability that may require “special accommodation,” (“special accommodation,” is the term that appears in the opinion).
An employer has the right to confirm whether a need for an accommodation exists, which is why the implementing regulations specify that a goal of the interactive process is to identify the precise limitations resulting from the disability.
To be liable for failure to accommodate, an employer must know that an employee’s disability limits her in a way that needs accommodating, which is the central purpose of the interactive process.
Sometimes, the connection between disability, limitation, and need for the accommodation is obvious. For example, a blind employee would not have to furnish medical records in order to establish that he needed some accommodation to be able to review written reports.
When the need for accommodation is clear, and a reasonable accommodation is evident, the onus is on the employer to act.
The interactive process is a means, not an end.
Neither the employer nor the employee can rest on a breakdown in the interactive process without connecting that breakdown to an element of failure to accommodate liability.
If the employer sabotages the interactive process to avoid discharging a duty, then the employee can use that sabotage to show that the employer refused an accommodation.
If the employee prevents the employer from understanding her disability, then the employer’s duty to accommodate never arises, and the employee’s claim fails.
While plaintiff told the lab about her disability, she never showed the lab that she was limited in a way that required accommodation. For example, she never explained, beyond opaque references to “immune dysregulation,” why her disability made COVID-19 vaccination risky.
It could well be a different story if plaintiff had allowed the lab to contact her medical providers. In that case, it is possible that those medical providers could have explained that plaintiff’s had an autoimmune disease so severe that, in their judgment, plaintiff was more likely to be harmed by the COVID-19 vaccine then by COVID itself. However, plaintiff refused to let that conversation happen.
No reasonable jury could conclude that the lab knew enough to be on proper notice of plaintiff’s needs. Considering plaintiff’s unusual medical profile, the lab had the right to ask for more objective evidence.
Since plaintiff prevented the lab from learning why her condition required the accommodation she asked for, plaintiff cannot show that the lab had a duty to accommodate.

III

Thoughts/Takeaways

Plaintiff loses this one, but there is lots of great language in the opinion to benefit persons with disabilities going forward.
The decision is published.
The interactive process is not an end in and of itself.
An employer does not have a complete defense whenever it can blame the breakdown on the interactive process on the employee.
The employer does not have a right to ask for documentation for every reasonable accommodation request regardless of that person’s disability.
The key for the employee is showing a connection between the disability, their limitation, and the need for the accommodation.
The breakdown of the interactive process is not enough. In order for the breakdown of the interactive process to be effectively used, the breakdown have to be tied to an element of the failure to accommodate.
If an employee prevents the employer from understanding her disability, then the employer’s duty to accommodate never arises.
While an employer has a perfect right to understand the disability so that it can make an accommodation, an employer should not go on a fishing expedition for information. Keep any such requests narrowly focused on the particular facts of the situation.
I have seen individuals with disabilities get very protective about disclosing their disability. I get that. However, being so protective can get in the way of getting needed accommodations/modifications.
In the Fourth Circuit, a failure to accommodate is a separate cause of action.
Under the ADA, a reasonable accommodation (Title I)/reasonable modification (Title II and III), is anything that does not constitute an undue hardship (Title I)/undue burden (Title II and III). The terms “reasonable accommodation,” and “reasonable modifications,” mean the same thing. The terms undue hardship and undue burden are also synonymous with each other.
Regardless of ADA Title, the interactive process is always a good idea.
Stay away from the term “special accommodation,” as the disability community can find that term quite insulting. There is nothing special about needing accommodations/modification per the ADA to get to the same starting line as a person without a disability.

Stanley Decided

By William Goren on June 27, 2025

Posted in 504, ADA, Constitutional law, Federal Cases, Rehabilitation Act, Title I, Title II, Title III

On June 20, 2025, the Supreme Court decided Stanley, which we discussed here. There is no need to go into the facts as we have already covered that previously. Accordingly, the blog entry is divided into the categories of: Justice Gorsuch’s majority opinion; Justice Gorsuch’s plurality opinion discussing how Title I might apply; Justice Thomas concurring opinion; Justice Sotomayor concurring and dissenting opinion; Justice Jackson dissenting opinion; and thoughts/takeaways. The reader is free to focus on any or all of the categories.

Justice Gorsuch’s Majority Opinion

For purposes of Supreme Court review, the Court assumed that the City’s revision to its retirement benefits plan constituted discrimination on the basis of disability.
Under Title I of the ADA, 42 U.S.C. §12111(8), a qualified individual is a person who with or without reasonable accommodation, can perform the essential functions of the employment position that she holds or desires.
In Title I of the ADA, Congress made it unlawful to discriminate against someone who can perform the essential functions of the job she holds or desires. That statement is in the present tense, so that means an individual who with or without reasonable accommodation, is able to do the job they hold or seek at the time they suffer discrimination. It also means that the statute suggests that it does not reach retirees who neither hold nor desire a job at the time of an alleged act of discrimination.
In Title I of the ADA, reasonable accommodation refers to things like job restructuring, modifying existing facilities used by employees, and altering training materials or policies. All of those are kinds of accommodations that make perfect sense when it comes to current employees or applicants, but is hard to see how they could apply to retirees who do not hold or seek a job.
42 U.S.C. §12112(b) also has a similar message as it focuses on the present tense as well. It offers examples of what constitutes discrimination against a qualified individual on the basis of the disability. For example, subparagraph 6 says discrimination includes using certain qualification standards, employment tests or other selection criteria when they are job-related for the position in question. This provision clearly protects jobseekers, but doesn’t make any sense in the context of retirees not seeking employment. The same analysis apply to subparagraph 7, which requires that tests concerning employment accurately reflect the skills and aptitude of an employee or applicant. The pattern repeats itself throughout §12112(b) and underscores §12112(a)’s focus on current and prospective employees-not retirees.
The retaliation provision of the ADA, 42 U.S.C. §12203(a), does not use present tense language. Instead, it prohibits retaliation against any individual opposing a discriminatory act. Since Congress used different language in the retaliation provision v. §12112, that strongly suggests Congress intended for them to work differently.
Title VII of the Civil Rights Act also does not restrict itself to the present tense exclusively. If Congress wanted to follow that approach with the ADA, they could have done so.
Cleveland v. Policy Management Systems Corporation, which we discussed here, also suggests that Title I of the ADA works in the present tense. In that case, the Court held that representations on an SSDI application may not automatically prevent someone from being a qualified person with a disability at a later time. That is, whether a person is a qualified person with a disability operates in the moment of discrimination.
In a footnote, Justice Gorsuch remarked that the ADA no longer requires a plaintiff to show that she was a qualified individual with a disability at the time of the defendant’s discrimination as a result of the amendments.
If Congress wanted to move away from a present tense orientation, they could have added the words “if any,” in Title I in its otherwise qualified individual definition section, but they did not.
Moving away from a present tense orientation would render phrases in Title I of the ADA redundant, and that doesn’t make any sense.
Title I of the ADA bars employers from discriminating against a qualified individual on the basis of disability in regards to compensation. In other words, the statute protects people and not benefits from discrimination. The statute also defines a qualified individual as a person who holds or seeks a job at the time of the defendant’s alleged discrimination.
It is a mistake to assume that any interpretation of the law that does more to advance the statute’s putative goals must be the law.
The Supreme Court has long recognized that the textual limitations of a law’s scope must be understood as no less a part of its purpose than any of its substantive authorizations.
It cannot be said that Title I’s textual limitations, i.e. its focus on the present tense, necessarily clashes with the ADA’s broader purposes. For example, one Court of Appeals predicted that judicial innovations extending 42 U.S.C. §12112(a)’s protection to retirees could create perverse incentives to encourage employers to reduce retirement healthcare benefits for people with disabilities.
It is up to Congress and not to the Supreme Court to decide whether it wants to extend Title I to reach retirees.
Other laws exist that might attack this situation beside Title I of the ADA. For example, plaintiff’s complaint mentioned §504 of the Rehabilitation Act, Florida state law, and equal protection.
It is still possible that Title I even with its focus on the present tense may reach many claims involving discrimination with respect to retirement benefits.

Justice Gorsuch’s Plurality Opinion Discussing How Title I Might Apply

An unlawful discriminatory practice can take place in any of three points in time: 1) when a defendant adopts a discriminatory practice; 2) when an individual is affected by application of a discriminatory practice; or 3) when an individual becomes subject to such a practice.
With respect to II(1)(1) of this blog entry, while it is true that the changes in the benefits occurred while Ms. Stanley was still employed, Ms. Stanley’s complaint provide no basis for inferring that the City’s policy change injured her at the time the policy was changed. Instead, her complaint suggests that when the City first issued its policy, she was not disabled and still expected to complete 25 years of service.
If a person could plead and prove that they were both disabled and qualified when their employer adopted a discriminatory retirement benefits policy, the ADA could be available.
In a footnote, Justice Gorsuch said that not every Title I plaintiff must plead and prove that they had a disability when they suffer discrimination. For example, Title I of the ADA defines discrimination on the basis of disability to include associational discrimination, i.e. discriminating against a qualified individual because of the known disability of an individual they have a relationship or association with. Unfortunately for Ms. Stanley, nothing in her complaint alleges anything along those lines either.
With respect to II(1)(2) of this blog entry, Stanley had been retired for two years and could not satisfy the requirements of her job and was not seeking employment. While Stanley is out of luck, it is possible that others could show that they were affected by a policy change while they were qualified individuals even if they happen to be retired by the time they bring suit.
With respect to II(1)(3) of this blog entry, Stanley’s complaint does not allege what her disability is or when it emerged. It is only from discovery on another issue that it appeared she was diagnosed with Parkinson’s disease in 2016.
That she was diagnosed with Parkinson’s disease in 2016 is unhelpful to the analysis because the dispute comes to the Supreme Court on a motion to dismiss. While a court might with a little more facts in the complaint draw a plausible inference that Stanley suffered discrimination between 2016 and 2018, that didn’t appear in the complaint. For example, Stanley could have allege that she developed Parkinson’s disease before 2018, or that she worked for any period with some disability. If those allegations had been made, her case could likely proceed.
Stanley in her brief at the appellate court did not claim she was impacted by the discriminatory City policy during her employment, which was what the United States argued before the Supreme Court. The 11^th Circuit correctly declined to pass on that argument because Stanley had not presented it to the District Court and specifically disclaimed it in her own brief on appeal. Stanley also did not expressly asked the Supreme Court to address the 11^th Circuit’s preservation rules nor did she ask the Supreme Court to reconsider its own general practice of allowing the Court of Appeals to determine for themselves what arguments they consider properly before them.
In short, for a plaintiff to prevail under §12112(a), a plaintiff must plead and prove that they held or desired a job and to perform its essential functions at the time of the alleged act of disability-based discrimination. While a variety of suits involving retirement benefits might well proceed under that rule, this is not one of those cases in light of the way it came to the Supreme Court.

III

Justice Thomas Concurring Opinion

Justice Thomas concurring opinion focuses on his frustration with the increasingly common practice of litigants urging the Supreme Court to hear a matter on one question and then after it decides to do that, shifting to an entirely different question. Accordingly, he doesn’t sign on to III of Justice Gorsuch’s opinion.

Justice Sotomayor Concurring and Dissenting Opinion

Justice Sotomayor concurs with the majority in that she believed Stanley forfeited the argument she may have been otherwise qualified at the time of the policy change. Otherwise, she agrees with Justice Jackson’s dissent except for Justice Jackson’s footnote 12.

Justice Jackson Dissenting Opinion

Retirement benefits are essential building blocks of the American dream.
Pure textualism makes a mess of what the ADA was intended to do.
The ADA was designed as a comprehensive national mandate for the elimination of disability discrimination.
The ADA protects against disability discrimination with respect to fringe benefits, employee compensation, and other terms, conditions, and privileges of employment.
The Supreme Court should not have used Stanley to make any pronouncements about the viability of the Title I discrimination claim arising after an employee retires.
The Supreme Court majority and plurality misreads Title I to introduce a time related limitation appearing nowhere in the ADA.
In a footnote, Justice Jackson notes that the summary judgment record on Stanley’s non-ADA claim reflects that she was diagnosed with Parkinson’s disease in 2016.
On the facts as alleged in Stanley’s complaint, the City subjected her to the discriminatory policy, not only after she retired. So, Stanley was performing the essential functions of her job at the pre-retirement point at which she became disabled and was subject to the new policy. As such, she was a qualified individual per the ADA.
The complaint does say that Stanley had a disability and eventually had to retire because of it. As such, that is enough to draw a plausible inference that Stanley worked with the disability and was therefore subject to discriminatory policy sometime before retiring.
Stanley never disavowed the argument that she was discriminated against while still working. Instead, all she said was that she did not claim she was impacted by the discriminatory City policy during her employment. Whether a person is impacted by a policy is a separate question from whether they were subject to it [discrimination].
The allegation that the relevant discriminatory act took place while she was still on the job does pertain to the question the Supreme Court decided to hear in the first place. Also, the traditional rule is that once a federal claimant properly presents a question to the Supreme Court, a party can make any argument in support of that claim and is not limited to the precise arguments they made below.
With respect to Stanley’s forfeiting her argument, an argument can be made that the Supreme Court deciding to hear the issue presented gets rid of the forfeiture issue.
The majority and plurality decision create the discrepancy between real-life and legal decision-making matters in concrete and demonstrable ways.
The Supreme Court instead of taking the approach it winds up taking in terms of the majority and plurality opinions should have just dismissed the case as being improvidently granted.
Title I of the ADA says absolutely nothing about the preemployment or postemployment timing of an act of disability discrimination.
Title I of the ADA does not categorically exclude former employees or retirees from its protections. It also does not explicitly carveout postemployment discrimination as not being actionable.
Nothing in Title I actually says one must currently hold or desire a job in order to obtain protection from the forms of disability discrimination prohibited by Title I of the ADA. It also does not place a temporal limit on the reach of it protections. Instead, Title I grants broad protections for workers against disability discrimination with respect to job-related benefits. It also specifically prohibits disability discrimination by an organization providing fringe benefit to an employee of an entity subject to Title I of the ADA.
It is perfectly permissible to read the qualified individual definition as setting a conditional mandate. That is, if a plaintiff relies on Title I regarding a job the plaintiff seeks to obtain or holds, then she must be able to perform the essential functions of that job. That doesn’t mean that definition applies across the entire board of Title I of the ADA. After all, conditional mandates appear all the time on a day-to-day basis. For example, a sign that reads “to live in this apartment building, you must be able to clean up after the pets you own,” does not mean that tenants have to own pets (in a footnote, Justice Jackson discusses other examples as well). So, the qualified individual section of the ADA can be read as to say nothing about the time the alleged discrimination must occur relative to one’s period of employment.
A retiree seeking to remedy discrimination after the payout of benefits already earned on the job does not trigger the concern that motivated Congress to craft the qualified individual provision. That is, the function of the qualified individual provision of Title I of the ADA is to protect employers from having to hire and maintain employees who cannot do the work. That provision was not designed to serve as a temporal limit distinguishing the rights of those who are ready did the work and have now left the job and simply doesn’t make sense to say otherwise. Congress could have easily said that extinguishing the rights of those who are ready did the work and have now left the job from the ADA’s protection was something that it wanted to do but it did not say that.
Under the majority’s logic, an employer cutting off an employee’s entitlement to retiree health benefits because of their disability one day before they retire subjects the employer to liability, but if they wait till one day after they retire they are off the hook under Title I of the ADA. This logic also leads to arbitrariness as well. The rule also makes no sense. After all, why would Congress hinge protection against discrimination with respect to benefits earned while working on whether the individual can perform a job in the future.
Workers often decide whether to enter the workforce and when to leave based on the terms of such benefits. Protecting persons with disabilities rights to receive all that they earned during the working years free from disability discrimination in retirement, is essential to a faithful application of Congress’s handiwork with respect to the ADA.
The Supreme Court has made clear that pension benefits qualify as terms, conditions, or privileges of employment even though they are received only after employment terminates.
Retirement benefits are deferred compensation for past years of service already rendered.
In a footnote, with Justice Sotomayor does not join, Justice Jackson talks about her philosophy about how laws should be interpreted. In short, she is not a fan of pure textualism.

Thoughts/Takeaways

Justice Gorsuch mentioned that the plaintiff in her complaint sought relief under other laws, namely: Florida state law; §504 of the Rehabilitation Act; and the equal protection clause. I am not licensed to practice in Florida, and so I cannot opine on the Florida claim. I can say that §504 is a nonstarter because it’s causation requirement is, “solely by reason of.” It seems to me that it would be extremely difficult to prove that the sole reason for the discrimination was based on disability. With respect to the equal protection claim, that also is a nonstarter because undoubtedly, per this case, here, persons with disabilities would be in the rational basis class with respect to a claim of retirement benefits being changed on the basis of disability.
While §504 and the equal protection clause are nonstarter’s, there are two other laws and possibly a third that might indeed work notwithstanding majority and plurality decision in Stanley. Those laws are: 1) Title II of the ADA, which applies to everything that a nonfederal governmental entity does; 2) Title III of the ADA which applies to places of public accommodation found in 42 U.S.C. §12181(7) and extends to privileges and benefits. See this blog entry, for example; 3) if a private employer is involved, ERISA might be another possibility, but I will leave that to attorneys focusing on that law. The remedies of these three other possible laws are very different from the remedies in Title I of the ADA, so that may be a possibility as to why violation of Title II of the ADA was not alleged in the complaint. ERISA would of course not apply as a private employer was not involved. Title III of the ADA also would also not apply as a nonfederal governmental entity was involved
Did discrimination based on disability actually occur in Stanley’s case? The Supreme Court specifically assumed that it did for the sake of argument, but we don’t actually know if that is really the case.
Another question is what does this case mean for whether a leave of absence could be a reasonable accommodation. The courts are split on that. The Seventh Circuit says that a leave of absence is generally not a reasonable accommodation but other courts disagree so long at that leave of absence has a definite date of return. This decision just might lend support to the Seventh Circuit approach. Definitely worth following to see how this goes.
Justice Jackson’s dissent is actually a policy driven opinion. Justice Sotomayor did not join her footnote 12 where Justice Jackson lays out her view on pure textualism. This reminded me of what Justice Kagan said upon the passing of Justice Scalia, “that we are all textualists now.”
With respect to Justice Gorsuch’s footnotes regarding whether the ADA requires a person to be a qualified individual with a disability, certainly association discrimination is one such possibility. Another example, is the regarded as prong under the ADA, which only requires a person being regarded as having a physical or mental impairment in order to fall under that prong of having a disability. The ADA.
When it comes to drafting ADA complaints, explicitly alleging more facts is always better than alleging fewer facts. Think of it as alleging enough facts so that any reasonable person would have to be on notice as to what transpired and what particular causes of actions are involved.
It is not the first time we have seen litigant bring up the question for the Supreme Court that may not have matched what the Supreme Court decided to hear. See the Supreme Court’s decision in Sheehan, here, for one such example.

The Equal Protection Classification of Transgender Individuals and its Implications for the ADA Going Forward

By William Goren on June 20, 2025

Posted in ADA, Constitutional law, Federal Cases, Title I, Title II, Title V

As everyone knows, I normally don’t blog more than once a week but there are exceptions. I had a bit of time this morning and this is a very short blog entry, so I decided to do a blog entry more than once this week. I am not at all sure about my schedule for next week, so it is possible my blog for next week may appear at any time during the week or even not at all.

The blog entry of the day is United States v. Skrmetti, here, decided by the United States Supreme Court on June 18, 2025. In a 6-3 decision, the Supreme Court held that Tennessee was justified as a matter of constitutional law in banning puberty blockers for minors as a treatment for gender dysphoria. The blog entry is divided into the categories of: 1) the opinions; and 2) ADA implications and thoughts/takeaways. It is probably my shortest blog entry ever, so the reader will probably want to read the whole thing.

The Opinions

The opinion for the Court was written by Chief Justice Roberts. His view is that the Tennessee laws banning puberty blockers do not classify on the basis of transgender status. Therefore, the rational basis equal protection classification applies. As a result, the Tennessee laws are constitutional.
Justice Thomas concurred. His view is where the medical evidence is so contradictory, rational basis review is the way to go. A big part of this opinion and the other non-dissenting opinions, is that other countries, such as the United Kingdom and some Scandinavian countries, have taken a very different view from medical professionals in the United States when it comes to puberty blockers.
Justice Barrett also concurred and was joined by Justice Thomas. Her view is that people who are transgender are subject to rational basis review when it comes to equal protection jurisprudence because gender identity is not a trait definitively ascertainable at moment of birth. Also, the onset of gender identity disorder varies and some individuals go back and forth as well as some return to the gender of their birth for their identity. Finally, gender identity does not involve a discrete group defined by an easily ascertainable characteristic that is fixed and consistent across the group.
Justice Alito also concurred and said that the Tennessee laws classify on the basis of transgender status and not sex. Also, transgender status is subject to rational basis scrutiny. Finally, Bostock, which we discussed here, is not applicable to equal protection jurisprudence.
Justice Sotomayor joined by Justice Jackson and Justice Kagan said that trans discrimination is sex discrimination, and therefore is subject to heightened scrutiny.
Justice Kagan said that transgender discrimination is subject to heightened scrutiny. However, the case should be remanded to the lower courts for fact-finding to determine whether the heightened scrutiny standard was met.

ADA Implications and Thoughts/Takeaways

We do know that the trans community has the ability to proceed under Title VII thanks to Bostock, which we discussed here.
Justice Gorsuch, the author of Bostock, did not offer a separate opinion of any kind in this case.
A majority of the Supreme Court clearly believe that transgender individuals are in the lowest equal protection class. That means as a practical matter, the government is free to take almost any action that may be adverse to members of the transgender community.
I expect the trans community going forward to go all in on the ADA when it comes to combating discriminatory actions against members of that community.
There is language in the non-dissenting opinions that could be read to suggest that the Supreme Court would uphold the exception in the ADA for gender identity disorders not being covered unless a physical impairment is involved (42 U.S.C. §12211(b)(1)). It is reasonable to expect lots of litigation in the future over this.
Many cases, such as here, are now saying that gender identity disorder exclusion in the ADA is not the same thing as gender dysphoria, but the cases are not unanimous on that. It will be interesting to follow going forward just how this decision impacts the issue of whether gender identity disorder and gender dysphoria are the same for purposes of the ADA exclusion.
For those focusing on the ADA as part of their practice, I would expect this decision to mean a lot more business.

The Case for Why McDonnell Douglas as a Summary Judgment Tool Makes No Sense

By William Goren on June 15, 2025

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

This week’s blog entry discusses Justice Thomas with Justice Gorsuch joining concurring opinion in Ames v. Ohio Department of Youth Services, here. By now, you most likely know that the opinion for the Court written by Justice Jackson, holds that a higher standard of proof is not in order if you are from a group of people not traditionally considered a member of a majority group and are alleging discrimination. What I want to focus on is the concurring opinion that lays out the case as to why McDonnell Douglas burden shifting approach as a summary judgment tool doesn’t make any sense. So, the blog entry is divided into two categories and they are: Justice Thomas makes the case for why McDonnell Douglas as a summary judgment tool doesn’t make any sense; and thoughts takeaways.

Justice Thomas Makes the Case for Why McDonnell Douglas as a Tool for Deciding Summary Judgment Doesn’t Make Sense.

The opinion for the Court in Ames assumes without deciding that the McDonnell Douglas framework is an appropriate tool for deciding whether to grant summary judgment.
The judge made McDonnell Douglas framework has no basis in the text of Title VII.
Lower courts extension of the doctrine into the summary judgment world has caused significant confusion and troubling outcomes on the ground.
The framework is a judge made evidentiary tool originally developed for courts to use in a bench trial. Its intended purpose was to help bring the litigants and the court expeditiously and fairly to the ultimate question in a Title VII case-i.e. whether the defendant intentionally discriminated against the plaintiff.
The McDonnell Douglas framework was made out of whole cloth and has no basis in Title VII or any other source of law. In fact, Justice Thomas referencing a case that we discussed here, said that the Court has never attempted to justify it on textual grounds.
Although originally designed for the bench trial context, the McDonnell Douglas framework has over the years taken on a life of its own. It is today the presumptive means of resolving Title VII cases at summary judgment, which is a development that came without the Court ever considering-much less holding-that the framework is an appropriate test for summary judgment task in the first place.
The Court has taken steps to limit the relevancy and applicability of the McDonnell Douglas framework to other contexts. For example, the Court has held: 1) the framework is not applicable when the plaintiff relies on direct evidence to prove the claim; 2) the framework is not applicable to mixed motive cases; 3) the framework is not applicable at the pleading stage and in deciding posttrial motions; 4) the framework’s first step does not need to be satisfied by a plaintiff at trial; and 5) the Court has strongly suggested that the framework should not be referenced in jury instructions because it is too confusing.
Notwithstanding the Supreme Court’s steps to limit McDonnell Douglas, it is now the framework that courts typically apply to determine whether the plaintiff has put forward sufficient evidence to survive summary judgment. The reason for that is unclear as the Court has only once addressed the application of McDonnell Douglas to Title VII cases at summary judgment and held the framework did not apply.
In a footnote, Justice Thomas said that the Court has assumed without deciding that the McDonnell Douglas framework applies at summary judgment outside of Title VII, but as far as he can tell, the Court has never had occasion to decide whether the framework is a useful or appropriate tool for evaluating any kind of claim at summary judgment.
The framework is incompatible with the summary judgment standard for several reasons: 1) it does not encompass the various ways a plaintiff can prove his claim; 2) it requires courts to maintain artificial distinctions between direct and circumstantial evidence; and 3) it has created outsized judicial confusion.
McDonnell Douglas framework does not track Federal Rules of Civil Procedure 56, which requires a court to grant summary judgment when the movant establishes that there is no genuine dispute as to any material fact and therefore, the movant is entitled to judgment as a matter of law.
McDonnell Douglas does not speak in terms of a genuine dispute regarding the facts. Instead, it speaks in terms of proving facts by the preponderance of the evidence. That difference is significant because a plaintiff need not establish or prove any elements by a preponderance or otherwise in order to survive summary judgment. So, McDonnell Douglas requires a plaintiff to prove too much at summary judgment.
If courts are to apply McDonnell Douglas at summary judgment, the framework should be modified to match the applicable legal standard. For example, the third step of the framework cannot involve proving by a preponderance of the evidence that the legitimate reasons offered by the defendant were a pretext for discrimination. Instead, if Rule 56 is to be applied properly, the plaintiff need only present sufficient evidence to create a genuine dispute as to whether the employer’s stated reason was pretextual.
McDonnell Douglas framework fails to capture all the ways a plaintiff can prove a Title VII claim. For example, the explicit statutory provisions of Title VII allow for an unlawful employment practice to be established when the complaining party demonstrate that the race, color, religion, sex, or national origin was a motivating factor for any employment practice even though other factors also motivated that practice. That is, plaintiff can establish a violation of Title VII by proving that an employer took an employment action in part because of an unlawful motive. McDonnell Douglas takes a different approach by requiring a plaintiff to prove that the legitimate reasons offered by the defendant was not it’s true reasons but was a pretext for discrimination. That requirement goes beyond Title VII.
Under Title VII, a plaintiff need not establish that the employer’s reason for its action was wholly pretextual. A plaintiff could prevail even if the employer’s stated reason what just part of the reason for the employer’s action. Therefore, a plaintiff’s inability to satisfy McDonnell Douglas’s third step of the framework does not necessarily mean that the plaintiff’s claim should fail. For example, the Court has held that the McDonnell Douglas framework should not be used in cases where the plaintiff argues that the employer operated with mixed motive.
Even in single motive cases, McDonnell Douglas fails to capture all the ways a plaintiff could prevail. For example, a plaintiff who cannot establish a prima facie case at the first step or pretext at the third step, could still prevail under Title VII the long as his evidence raises a reasonable inference of unlawful discrimination. The ultimate question is simply whether the defendant intentionally discriminated against the plaintiff.
Another problem with McDonnell Douglas it that it requires court to draw and maintain an artificial distinction between direct and circumstantial evidence.
The Court’s holding that McDonnell Douglas is not applicable when a plaintiff presents direct evidence of discrimination, forces courts to make the often subtle and difficult distinction between direct and indirect or circumstantial evidence.
In any lawsuit, the plaintiff may prove his case by direct or circumstantial evidence or some combination of that. The law makes no distinction regarding the weight or value assigned to either kind of evidence. The reason for treating circumstantial and direct evidence the same is that circumstantial evidence is not only sufficient, but may also be more certain, satisfying, and even more persuasive than direct evidence.
The conventional rule of civil litigation that a plaintiff can proceed with either direct or circumstantial evidence applies with full force to Title VII cases. Yet, McDonnell Douglas requires courts to determine at the outset the nature of the evidence before it, which often only prolongs litigation instead of streamlining it.
Since a Title VII plaintiff can prove his claim with either direct or circumstantial evidence, one has to be skeptical about a framework that requires court to perform the difficult task of characterizing each piece of evidence.
McDonnell Douglas has befuddled courts since its origins and that is another reason to question it.
Six years after the Court created the framework, the First Circuit observed that the subtleties of McDonnell Douglas are confusing and have caused considerable difficulty for judges at all levels. A decade later, Justice Kennedy made the same observation. Twenty years after that, another judge said that lower courts have struggled to implement the burden shifting framework for over thirty years. McDonnell Douglas has now been on the books for fifty years and the courts are still reporting continuing confusion. Those who have carefully dived into the framework for decades cannot make sense of it and that suggests the framework is unworkable.
While McDonnell Douglas as a summary judgment tool was not before the court in this case, Justice Thomas and Justice Gorsuch would be willing to consider whether that framework should be used for summary judgment purposes when squarely presented with the question.
Litigants and lower courts are free to proceed without the McDonnell Douglas framework. The Court has never required anyone to use it. District courts are well-equipped to resolve summary judgment motion without it. Every day-and in almost every situation outside of the Title VII context- district courts across the country resolve summary judgment motion by applying the straightforward provisions of Rule 56.

Thoughts/Takeaways

McDonnell Douglas indeed multiplied everywhere. It is standard practice for McDonnell Douglas to be used throughout the ADA universe.
Justice Thomas makes a strong case as to why McDonnell Douglas, especially by itself: 1) makes no sense as a summary judgment tool; 2) uses unsupportable distinctions between evidence; and 3) also goes beyond what is allowed by Rule 56 of the Federal Rules of Civil Procedure.
I read an awful lot of case law, and McDonnell Douglas comes up frequently. Trying to figure out the distinction between direct and indirect evidence and what that means can be mind-boggling even for a reader involved with it all the time. The third step, pretext, can also be mind-numbing to deal with as well.
So, what’s next? Justice Thomas said that litigants and lower courts are free to proceed without the McDonnell Douglas framework and the Court has never required anyone to use it. What this means is that any of three things will happen: 1) courts will adopt the Ortiz approach of the Seventh Circuit, which we discussed here; 2) courts will adopt the Tynes approach of the 11^th Circuit, which we discussed here; or 3) the courts (as we are seeing in the district court’s within the Seventh Circuit), will allow litigants to use either the McDonnell Douglas framework or the Ortiz/Tynes approach (Ortiz and Tynes are very similar in their approach except that the Seventh Circuit refuses at the pain of it being reversible error, to use the term, “convincing mosaic”). I think it is fair to say with respect to any of these approaches just described, that you will see more plaintiffs surviving summary judgment motions.

Understanding the ADA

menu

Unlawful Disclosure is a Separate Private Right of Action Under Both the Rehabilitation Act and the ADA and other stuff

A Twofer: A Short Discussion of How Far the Honest Belief Rule Extends and What Constitutes a Judicial Act

Regarded As Discussed with Clarity Rarely Seen Before and Adverse Action After Muldrow

Landlords Can Charge a Fee for ESA’s/Pets and the Impact of Loper Bright

ABA Formal Opinion 517 and How it Pertains to Persons with Disabilities

What Notice is Required to Activate the Mandatory Reassignment Process Assuming a Mandatory Reassignment Process Exists in the First Place

Plaintiff Loses But Persons with Disabilities Going Forward Don’t

Stanley Decided

The Equal Protection Classification of Transgender Individuals and its Implications for the ADA Going Forward

The Case for Why McDonnell Douglas as a Summary Judgment Tool Makes No Sense

Understanding the Americans with Disabilities Act, Fourth Edition

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