I am back in the office after taking an Alaskan cruise with a side trip to Denali National Park. Both are absolute bucket lists. If you have not done both, I highly recommend it. The scenery in Alaska is something that cannot be easily explained. If you have only done the cruise, definitely worth going back to Alaska in order to take in Denali National Park.

 

Turning to the blog entry of the day, it is about a case illustrating how not to do the interactive process. The case of the day is Powers v. Town of Durham, New Hampshire, here, decided by the United States District Court of New Hampshire on September 10, 2025. As usual, the blog entry is divided into categories, and they are: things an employer should not do with respect to the interactive process when it is aware of the employee’s disability; court’s reasoning denying summary judgment for the disability discrimination claim; court’s reasoning denying summary judgment for the retaliation claim; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Things an Employer Should Not Do with Respect to the Interactive Process When It Is Aware of the Employee’s Disability

 

 

  1. When a person makes a request to continue reasonable accommodations that have been working, have a consultant on the matter say that the person making the request for reasonable accommodations is causing problems and undermining the supervisor’s authority.
  2. After the reasonable accommodation request has been made, prepare a Performance Improvement Plan (PIP), and blindside the employee completely with that plan. Also, read the plan out loud and refuse the employee’s request to read it to himself in order to minimize the effects of his PTSD, even though the employer was quite aware of the employee’s PTSD.
  3. Revoke existing accommodation already working.
  4. Suspend the employee for how he reacted to being blindsided by the PIP due to his PTSD.
  5. In retaliation for demanding reasonable accommodations and the PIP meeting being handled with difficulty by the employee, insist on a fitness for duty evaluation.
  6. When the employee files a grievance with respect to the PIP and the fitness for duty evaluation demand that the employee finish listening to the PIP.
  7. Terminate the employee because the employee would not release the results of the fitness for duty exam while his grievance was pending.

 

II

Court’s Reasoning Denying Summary Judgment for the Disability Discrimination Claim

 

  1. The ADA requires reasonable accommodations for known mental limitations of an otherwise qualified individual (“otherwise qualified individual,” is the term used by the court).
  2. The employer was fully aware of plaintiff’s PTSD, and weekly therapy during business hours, the effects of PTSD on his communication and interaction skills, and his symptoms of panic and rumination due to PTSD, especially when confronted by conflict related to his work or job security. The extent of the employer’s knowledge and understanding of plaintiff’s limitations due to PTSD is a fact matter suitable for trial collect and are not summary judgment.
  3. A reasonable jury could conclude that his supervisor was very familiar with plaintiff’s condition and knowingly provoked plaintiff’s PTSD response during the PIP meeting by surprising him with the PIP in reading it out loud in a confrontational manner.
  4. 42 U.S.C. §12112(d)(4)(A), here, prohibits employers using medical exams as a pretext to harass employees or to fish for nonwork related medical issues and the attendant unwanted exposure of the employee’s disability and the stigma it may carry.
  5. With respect to the employer’s business necessity defense, the facts are plainly disputed and are material and therefore, summary judgment must be denied.

 

III

Court’s Reasoning Denying Summary Judgment for the Retaliation Claim

 

  1. The ADA prohibits covered employers from retaliating against employees who request or use (emphasis in opinion) reasonable accommodations, or who oppose disability discrimination.
  2. In order to prove up the retaliation claim, a plaintiff must show: 1) that he engaged in protected conduct; 2) that he experienced an adverse employment action; and 3) that the protected conduct and the adverse employment action were causally related.
  3. For the reasons discussed in §II of this blog entry, a reasonable jury could find that the plaintiff made a request for reasonable accommodations, was using a reasonable accommodation already in place, and complained about discriminatory conduct.
  4. No dispute exists that the employer imposed an adverse employment action against the plaintiff.
  5. The timing of the events and the evidence of the supervisor’s unusual familiarity with plaintiff’s disability and his possible use of plaintiff’s disability against him, could support finding in plaintiff’s favor on the elements of his ADA retaliation claim.

 

IV

Thoughts/Takeaways

 

  1. If an accommodation is working, taking away that accommodation from the employee is always a recipe for litigation even if the ADA would arguably permit taking away the accommodation because it didn’t have to be granted in the first place.
  2. Making a request for reasonable accommodations is a protected activity. Causing trouble for the employee after that request is made is also a recipe for future litigation.
  3. Refusing to accommodate an employee throughout the disciplinary process, is a bad idea and a recipe for future litigation.
  4. The court uses the term “otherwise qualified individual,” which is actually not an ADA term at all. Instead, that is the term used by the Rehabilitation Act. The ADA term is, “qualified.” All that said, “otherwise qualified individual,” (the Rehabilitation Act term), and “qualified individual with a disability,” (the ADA term), mean exactly the same thing.
  5. As readers know, a great deal of my practice over the last few years has dealt with working with counsel for those in the healthcare profession whose clients are getting pushed out of their profession because of their disability. So, it is very significant that this court says that the ADA prohibits using medical exams as a pretext to harass employees or to fish for nonwork related medical issues and the attendant unwanted exposure of the employee’s disability and the stigma it carries. This particular statement by the court may have much wider applications than just this particular case.
  6. Medical exam need to be narrowly focused on the issue at hand and not a fishing expedition. See this blog entry for example.
  7. Business necessity from this decision, appears to be an affirmative defense.
  8. After Muldrow, it doesn’t take much for a plaintiff to establish an adverse action. See this blog entry for example.
  9. Read this blog entry on the do’s and don’ts of the interactive process, here.

Before getting started on the blog entry of the week, a housekeeping matter in order. I will be out of the office August 30-September 12, so this will be my last blog entry until the week of September 15.

 

This week’s blog entry raises the question of whether unions can hide behind the duty of fair representation in order to avoid the more burdensome requirements of complying with the ADA and Title VII. In Lucas v. American Federation of Government Employees, here, the United States Court of Appeals for the District of Columbia Circuit decided on August 15, 2025, that ADA and Title VII compliance is not trumped by the duty of fair representation. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning reversing the dismissal of the Title VII and ADA claims; court’s reasoning that the union’s reliance on the Civil Service Reform Act is of no help; miscellaneous matters and rebutting the dissent/dissent; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Key Facts (taken from the opinion itself)

 

Nia Lucas, a woman with a traumatic brain injury, worked for the U.S. Small Business Administration (SBA) from 2017 to 2020. Lucas believed that the SBA had discriminated against her and had not compensated her properly. In late 2017, she brought these allegations to her union’s local chapter. The local did not take any action for several months.

 

Around this time, Green began professing his love for Lucas and making unwanted sexual advances toward her. 7 Lucas told him to stop and reported his conduct to Michael Kelly, one of the union’s national officers.

 

Green stepped down as Lucas’s designated representative ahead of the arbitration hearing, but the two of them remained in contact as the hearing date approached. Lucas had recently given birth, and, on one occasion, Green told her that “she did not have a right or need to be at the arbitration hearing based on the additional expenses and logistics associated with her being a nursing mother.” He added that Lucas’s “having a newborn was a burden to the union.”Lucas again reported his comments to Kelly.

 

At Green’s instruction, the local postponed the arbitration hearing after it had begun. Six months later, Lucas filed a ULP charge with the Federal Labor Relations Authority, complaining of Green’s harassment and the hearing’s delay. After learning about the charge, Green called Lucas, told her she was a “b*tch,” and threatened to “ruin her federal career” if she did not withdraw the allegations. The local later pulled out of the arbitration proceedings. Green explained that the union “did not want to represent disabled mothers of newborns such as [Lucas].”

 

Lucas filed two more ULP (unfair labor practices), charges with the Authority: one asserting that the local had wrongfully withdrawn from the arbitration hearing, and another contending that Kelly had conspired with Green to restrict her rights as an employee in the union’s bargaining unit.

 

Separately, Lucas filed a discrimination charge against the union with the EEOC, which declined to pursue the matter and issued her a right-to-sue letter. Lucas then filed in district court the two lawsuits that are now before us. The first named the union and the local as defendants and alleged violations of Title VII and the ADA, including claims of sex discrimination, disability discrimination, sexual harassment, and hostile work environment.

 

 

II

Court’s Reasoning Reversing the Dismissal of the Title VII and ADA Claims

 

  1. It is unlikely that Congress would have done away with fundamental protections it conspicuously and specifically made applicable to discrimination by unions.
  2. Title VII and the ADA represent two of the most significant legislative enactments of our time, and both statutes explicitly apply the prohibitions against discrimination to labor organizations.
  3. The plain text of both statutes reflects that Congress considered specifically that labor organizations are subject to both of those statutes.
  4. Congress legislates against and preserves existing law and background understandings is the presumption whenever Congress makes law.
  5. Congress has long afforded claimants multiple overlapping avenues to obtain relief from the discrimination they prohibit.
  6. It is well-settled that employees in every other relevant context can concurrently pursue administrative remedies for discrimination as well as Title VII or ADA claims (or the materially identical Rehabilitation Act claim), in federal district court.
  7. For federal employees suing their employers, the Civil Service Reform Act makes it a prohibited personnel practice for a supervisor to discriminate against employees or applicants in violation of Title VII or the Rehabilitation Act. It also allows employees to bring claims under both Title VII and the Rehabilitation Act in district court.
  8. Private sector employees may bring Title VII and ADA claims in district court against the unions even if they can also pursue overlapping administrative remedies before the National Labor Relations Board.
  9. In a footnote, the court notes that Title II of the ADA and §504 of the Rehabilitation Act are interpreted as if the two statutes are one law. In the same footnote, the court notes that §501 of the Rehabilitation Act, which prohibits disability discrimination in federal employment, is governed by the same standards as Title I of the ADA.
  10. The Supreme Court has recognized that legislative enactments in this area have long intended to accord parallel or overlapping remedies against discrimination.
  11. Since the Civil Service Reform Act’s 1978 Enactment, Congress has either created enhanced remedies for discrimination claims without ever saying that federal employees suing their unions are excluded in any respect from the statutes’ protections. In fact, the ADA itself was enacted 12 years after the Civil Service Reform Act and the more specific law governing unions. Further, the ADA defined its coverage to include all labor organizations and not just private sector unions.
  12. The Civil Rights Act of 1991 make compensatory and punitive damages available to a plaintiff establishing unlawful intentional discrimination in violation of Title VII or the ADA, and there is no indication that Congress understood that enhancement not to apply to federal employees suing their unions.
  13. The law governing unions when it mentions discrimination is perfectly consistent with the view that Congress stuck to its long-standing practice of affording employees multiple avenues for relief in a case such as this one. In fact, it is a more natural reading of the law governing unions that Congress meant to complement existing remedies by providing employees lacking the resources to file a Title VII or ADA claim with a faster and less expensive means to obtain relief even if the payoff is far more modest.
  14. The remedies explicitly guaranteed by the law governing unions are paltry by comparison to the ADA and to Title VII. It is particularly implausible that Congress would so drastically curtail federal employees’ protection from discrimination by the unions without ever saying it was doing so, and without any apparent justification.
  15. For employees demonstrating misconduct by federal unions, the law governing unions appears to offer only cease-and-desist orders and, if applicable, back pay awards.
  16. The limited remedies for the law governing unions are subject to an administrative scheme that, in practice, almost never results in judicial review. Under this administrative scheme, charges of discrimination are subject to the discretion of the Regional Director and the unreviewable discretion of the General Counsel, of which there currently is none, over whether to initiate a complaint. By one account, based on seven years of data, fewer than 1% of charges filed by all individuals against unions ever result in a complaint with nearly all the other charges being withdrawn or dismissed.
  17. The statute respective limitations periods also differ. The law governing unions gives employees only six months to file a charge, while a discrimination charge under Title VII or the ADA may be filed up to 300 days after the challenged conduct if an employee first seeks relief from a state or local agency.
  18. Plaintiff makes a substantial case that the law governing unions is not just weaker than Title VII and the ADA in terms of procedure and remedies, but also more limited in terms of its substantive coverage. In fact, several Courts of Appeals have held that proving a breach of the duty of fair representation requires a showing beyond what is necessary to make out a Title VII or ADA claim. Therefore, stripping federal employees of Title VII’s and the ADA’s protection from discrimination by their unions would put some misconduct beyond the law’s reach.
  19. Unlike the law governing unions, with respect to Title VII or the ADA, a non-union member like the plaintiff can seek relief for discriminatory representation.
  20. As a result of virtually all charges with respect to the law governing unions being withdrawn or dismissed, there is very little case law existing with respect to a union’s discrimination based on protected traits breach of the duty of fair representation. When a complaint is withdrawn or dismissed, it is the responsibility of the General Counsel to provide a written statement of the reasons for not issuing a complaint, thereby leaving no public trace of the application of the law governing unions to particular facts.
  21. Even if the scope of coverage with respect to the law governing unions overlap with that of Title VII and the ADA, the stark disparities in remedies, opportunity for judicial review, and limitation periods remain.

 

III

Court’s Reasoning That The Union’s Reliance on the Civil Service Reform Act Is of No Help

 

  1. Unlike in the law governing unions, Congress chose to explicitly define prohibited personnel practices based on Title VII and other specific statute by name when it came to the Civil Service Reform Act. Accordingly, that creates the obvious implication that Congress intended to funnel those statutory claims exclusively through the Civil Service Reform Act scheme. So, confronted with that implication, Congress carefully specified that employees could still concurrently pursue those kinds of claims in district court.
  2. None of the provisions in discussing discriminatory conduct in the law governing unions explicitly reference any antidiscrimination statute.
  3. Congress chose to be clear that employees have concurrent rights to pursue claims under the law governing unions as well as under Title VII and the ADA.
  4. It makes no sense for Congress to have intended to distinguish federal employees Title VII/ADA apart from the general norm of overlapping remedies only when they seek to sue their unions and not when they sue their employers.
  5. There is no support for the idea that Congress wanted to give federal unions more freedom to engage in discrimination against the very employees they are obligated to represent.
  6. There is no reason to think that the Civil Service Reform Act goes so far as to displace all other statutory discrimination claims.
  7. To the extent the legislative history sheds any light, it shows Congress’s concern with duplicate paths and lengthy litigation was plainly more front of mind with respect to federal employee challenging their employer’s actions, rather than in the context of employees suing their unions. It also shows that Congress was perfectly happy to tolerate dual-track discrimination claims against federal agencies.
  8. Neither Title VII nor the ADA is a catchall statute. Instead, both statutes address specific evils of discrimination by labor organizations, rather than labor-management relations in general.
  9. There is no concern that every charge filed under the law governing unions could give rise to a parallel Title VII or ADA claim, as unions can commit nearly all of the violations of the law governing unions without acting with any discriminatory intent whatsoever.
  10. Plaintiff seeks to sue her union for specific acts she claimed were discriminatory under statute specifically targeting that conduct, and plaintiff cannot litigate her Title VII and ADA claims through the statutory scheme in the context of concrete bargaining disputes.

 

IV

Miscellaneous Matters and Rebutting the Dissent/Dissent

 

  1. Case law talking about how the law governing unions can be preclusive with respect to certain actions doesn’t hold up with respect to Title VII and ADA lawsuits because if that was the case, a plaintiff would have no meaningful opportunity for judicial review of the discrimination allegations because access to the court will be subject to the General Counsel’s unreviewable discretion to dismiss her charges, which is the fate met by nearly every charge filed by a federal employee against unions under the law governing unions. Also, the Federal Labor Relations Authority has known particular expertise in the general applicable antidiscrimination laws involved in this case, and has itself directed federal employees with such claims to seek assistance from other quarters.
  2. The promissory estoppel approach doesn’t work because an employee’s decision about where the first seek relief cannot be inaccurate or appropriate barometer of federal courts subject matter jurisdiction.
  3. The cases cited by the dissent do not stand for the categorical rule ascribed to them by the dissent because otherwise the decisions in this area of the law would be considerably more concise.
  4. Despite what the dissent says, even the union concedes that intentional torts are not preempted by the laws governing unions, and the dissent offers no reason to think that Congress intended them to be.
  5. Taking the dissent at face value, would open up a whole new realm of litigation with respect to the law governing unions of which there is virtually no guidance on at present.
  6. Congress’s initial focus on discrimination claims can be found in the Civil Service Reform Act, the ADA, and Title VII. The Civil Service Reform Act explicitly preserves federal employees’ ability to pursue overlapping remedies when they sue their employers for discrimination.
  7. The court is unpersuaded that Congress intended to extinguish discrimination claims when those same employees seek to sue their unions for similar misconduct when it does not exclude such claims otherwise.
  8. Civil Service Reform Act and the law governing unions precedent to date has not addressed a statute like Title VII or the ADA. Those particular statutes create their own elaborate schemes to root out misconduct and specifically include labor unions within their coverage. Congress explicitly ensure that federal employees can bring concurrent District Court claims per Title VII and the ADA and actions under the law governing unions for discrimination by their employers, and private employees can also bring overlapping claims against their unions.
  9. With respect to the dissent itself, Judge Pan would have found the law governing unions preempts Title VII and the ADA.

 

 

IV

Thoughts/Takeaways

 

  1. This case is a published decision.
  2. It is extremely difficult according to this case to bring a successful breach of the duty of fair representation against a union. So, this case gives real teeth to plaintiff’s that are discriminated against by a union based upon their protected characteristic.
  3. Given the current configuration of the Supreme Court, I like the chances chances chances of the plaintiff in this case prevailing at the Supreme Court level even if this case does nominally involve an employment situation (the Supreme Court is generally very positive toward persons with disabilities outside of employment).
  4. While it is absolutely true that Title II of the ADA and §504 of the Rehabilitation Act are interpreted as if the two statutes are one law, important distinctions between the two do exist and can become important from time to time depending upon the particular facts.
  5. The panel did unanimously agree to dismiss plaintiff’s Fair Labor Standards Act claim.

Today’s blog entry is on a case that we have blogged on before, Kluge v. Brownsburg Community School Corporation, decided by the Seventh Circuit on August 5, 2025, here. Our previous blog entry on the case can be found here. The Seventh Circuit had to revisit the matter in light of the Supreme Court opinion in Groff v. DeJoy, which we discussed here. Robin Shea in her blog did an excellent job of discussing the latest opinion from the Seventh Circuit in Kluge, here. I just wanted to add a few thoughts of my own. The blog entry is super short even if it is divided into categories (no need to discuss the facts since we covered it previously), so the reader is going to want to read the whole thing.

 

A housekeeping matter: I do expect to blog next week. From 8/30-9/12, I will be out of town, so no blog entries during that time.

 

I

Majority Opinion (J. Brennan)

 

  1. When it comes to determining whether an undue burden exists, undue burden is governed by an objective standard. Subjective beliefs about whether an undue burden exists are not good enough.
  2. Failure to accommodate cases are not subject to the honest belief rule.

 

II

Dissenting Opinion (J. Rovner)

 

  1. Honest belief rule should apply.
  2. Gender dysphoria is a disability under the ADA.
  3. Mandating an objective test for failure to accommodate cases when it comes to accommodating religion goes too far.

 

III

Thoughts/Takeaways

 

  1. This is a religious accommodation case and not a disability failure to accommodate case.
  2. It is very much an open question whether gender dysphoria is a disability under the ADA. I just saw yesterday that the DOJ has filed a statement of interest in a case where it argues that gender dysphoria is not protected by the ADA.
  3. It is big news that failure to accommodate cases are not subject to the honest belief rule. I see no reason why the reasoning of this decision with respect to failure to accommodate cases not being subject to the honest belief rule, would not carry over to disability failure to accommodate cases.
  4. It is also big news that an undue burden must be objectively based. Again, I see no reason why the reasoning of this decision would not carry over to disability failure to accommodate cases. I would expect plaintiff lawyers to liberally use this reasoning, especially when employers deny persons with disabilities remote work. A lot of the reasons I am seeing for why employers are cutting back on remote work, are arguably quite subjective rather than objective.
  5. The ADA actually uses the term undue hardship for Title I matters and undue burden for Titles II and III matters. While the terms are different, the meanings are identical. Since the meanings are the same, I don’t see any reason as mentioned above, why the reasoning of this case would not equally carry over to ADA failure to accommodate matters regardless of the Title involved.

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 11th 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.

 

 

I

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.

 

 

II

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

 

  1. 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.
  2. 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

 

  1. 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.
  2. 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.
  3. 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.
  4. Citing to another case, the court noted it had previously upheld the reasonableness of an employer requirement that a plaintiff encounter her direct supervisor.
  5. 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.
  6. 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.
  7. 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.

 

IV

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

  1. The Rehabilitation Act incorporates the confidentiality provisions of the ADA.
  2. 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.
  3. 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.
  4. The 11th Circuit has not addressed previously whether there is a private right of action for disclosing confidential medical information. However, the 11th 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.
  5. 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.
  6. 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.
  7. 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).
  8. 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).
  9. 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.
  10. 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.
  11. 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.
  12. 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.
  13. 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.
  14. 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.
  15. 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.
  16. When an employee must share medical information to receive benefits guaranteed by law, that requirement operates as an inquiry by the employer.
  17. 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.
  18. 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).
  19. 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.
  20. 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.
  21. 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.
  22. 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.
  23. An issue of fact also exists as to whether the union steward learned of the cancer diagnosis before plaintiff told anyone at work.
  24. 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.
  25. 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.
  26. 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.
  27. 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.
  28. 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.

 

 

V

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

 

  1. A person cannot allege a retaliation claim when it is disguised as a failure to accommodate claim.
  2. 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.
  3. 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.
  4. 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.
  5. Plaintiff did not provide enough evidence demonstrating how the Department’s handling of her continued request for accommodation was sufficiently severe or pervasive.

 

VI

Judge Tjoflat Concurring Opinion

 

  1. 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.
  2. Plaintiff’s complaint falls into the first category of §VI (1) of this blog entry.
  3. 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.
  4. 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

 

  1. 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.
  2. 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).
  3. 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

 

  1. The confidentiality requirements are strictly a Title I requirement and do not extend to the other Titles of the ADA.
  2. This court holds that the ADA’s confidentiality requirements apply equally to the Rehabilitation Act.
  3. §501 of the Rehabilitation Act specifically states that it is the ADA’s Title I statutory and regulatory provisions that apply.
  4. 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.
  5. 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.
  6. Unlawful disclosure of information contained in disability related inquiries or medical exams does constitute a separate private right of action.
  7. You don’t have to be a person with a disability to make a claim for violation of the confidentiality provisions.
  8. 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.
  9. 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).
  10. 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.
  11. 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.
  12. Even though this is a per curiam decision, it is published and therefore, precedential.
  13. 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
  14. 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.

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 11th 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.

 

I

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.

 

II

Importance of Mullane to the Disability Universe

 

  1. 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.
  2. 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).
  3. 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

 

  1. 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.
  2. 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.
  3. Gray is a published decision.

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.

 

I

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.

 

II

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

 

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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

 

  1. 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.
  2. For a regarded as claim, belief is enough.
  3. 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.
  4. 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.
  5. While the court just mentioned direct threat to others, in the employment context, direct threat apply to self or others per Chevron v. Echazabal.
  6. When it comes to the ADA, an individualized analysis is always required.

 

IV

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.

 

V

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

 

  1. 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.
  2. 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.
  3. 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).
  4. 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 10th Circuit joins other circuits in holding that Muldrow’s some harm standard applies to ADA claims as well as Title VII claims.

 

VI

Scheer Takeaways.

 

  1. 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.
  2. The case is published and therefore, can be cited as precedent.
  3. This case was eminently predicable as we discussed here over a year ago, here.
  4. 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!!!!!!

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.

 

I

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).

 

II

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

 

  1. 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.
  2. 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.
  3. Many types of residential fees affect persons with disabilities as well with persons without disabilities equally and those fees are clearly proper.
  4. 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.
  5. Proving whether an accommodation is necessary means that a plaintiff must show the requested accommodation makes the home therapeutically meaningful or financially viable.
  6. 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.
  7. 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.
  8. 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.
  9. Therefore, to have the fee waived, plaintiff must show that her requested accommodation is indispensable and essential to alleviating the effects of her disability.
  10. 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.
  11. 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.
  12. 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.
  13. 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.
  14. 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

 

  1. It is the role of the courts not the agency to interpret constitutional and statutory provisions.
  2. 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.
  3. 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.
  4. 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.
  5. Just because the joint statement or the notice (the HUD circular), may be convincing on other topics, does not make the entire documents influential.
  6. Plaintiff failed to establish that the waiver of the fee was necessary and reasonable.

 

IV

Thoughts/Takeaways

 

  1. A critical fact here is that the landlord charged a fee for pets. This was not situation where the landlord did not allow pets.
  2. Generally applicable fees are okay.
  3. 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.
  4. 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.
  5. 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.
  6. Richard just blogged on the case discussed in this blog entry in his blog, here.
  7. 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.
  8. 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).
  9. 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.
  10. 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.
  11. 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.
  12. 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.
  13. 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!!

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.

 

I

Highlights of Opinion

 

  1. 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).
  2. 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.
  3. 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.
  4. However, a lawyer does not violate Rule 8.4(g) by exercising peremptory challenges on a discriminatory basis where not forbidden by other law.
  5. 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.
  6. In a footnote, the opinion says that United States v. Harris, 197 F.3d 870 (7th 1999), decided that persons with disabilities do not have the right to have Batson challenges exercised on their behalf.
  7. Striking prospective jurors on a discriminatory basis in violation of substantive law governing jury selection is not legitimate advocacy.
  8. 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.
  9. 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.
  10. 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.
  11. 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.
  12. 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.
  13. 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.
  14. 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.
  15. 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.
  16. 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.
  17. 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.
  18. 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.
  19. 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.
  20. In the context of jury selection, a trial lawyer whose peremptory challenges are discriminatory but lawful has not violated Model Rule 8.4(g).
  21. 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.

 

II

Thoughts/Takeaways

 

  1. 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.
  2. 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.
  3. 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.
  4. “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).
  5. 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.
  6. 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…
  7. 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.
  8. Tennessee v. Lane, here, is a must read for anyone dealing with a person with a disability as a prospective juror.
  9. 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.
  10. 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.
  11. Batson is the criminal version; the civil version is this case.
  12. 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.

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.

 

I

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.

 

II

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

 

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. Once an employee requests an accommodation, the employer has a duty to engage in the interactive process.
  6. 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.
  7. Failing to assist an employee in seeking an accommodation may suggest bad faith.
  8. 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.
  9. 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.
  10. 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.
  11. 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.
  12. 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.
  13. 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).
  14. 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

 

  1. 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, 10th, 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 11th Circuits go with the competitive bidding approach. The Sixth Circuit has not directly spoken on the issue.
  2. 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.
  3. 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.
  4. The ADA per 42 U.S.C. §12111(9), requires employers to make reasonable accommodations, which can include reassignment to a vacant position.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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.
  10. 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.
  11. In a footnote, the court notes that Congress did not reserve special status for healthcare industry when it comes to reasonable accommodation obligations.
  12. 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.
  13. 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.
  14. 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.
  15. 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.
  16. 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.
  17. 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.
  18. 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.

 

IV

Thoughts/Takeaways

 

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. Mandatory reassignment as a reasonable accommodation is a last resort.
  7. 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.
  8. 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.

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.

 

I

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.

 

II

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

 

  1. 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.
  2. The interactive process is not an end in and of itself.
  3. It is doubtful that an employer has a complete defense whenever it can blame the employee for a breakdown in that process.
  4. 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.
  5. An employer who doesn’t engage in good faith with the interactive process violates the ADA so long as a reasonable accommodation is possible.
  6. 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.
  7. The interactive process gives the employer a chance to confirm that it has the duty to accommodate to begin with.
  8. The ADA requires accommodating known limitations not known disabilities.
  9. 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.
  10. 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).
  11. 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.
  12. 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.
  13. 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.
  14. When the need for accommodation is clear, and a reasonable accommodation is evident, the onus is on the employer to act.
  15. The interactive process is a means, not an end.
  16. 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.
  17. 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.
  18. 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.
  19. 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.
  20. 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.
  21. 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.
  22. 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

 

  1. Plaintiff loses this one, but there is lots of great language in the opinion to benefit persons with disabilities going forward.
  2. The decision is published.
  3. The interactive process is not an end in and of itself.
  4. An employer does not have a complete defense whenever it can blame the breakdown on the interactive process on the employee.
  5. The employer does not have a right to ask for documentation for every reasonable accommodation request regardless of that person’s disability.
  6. The key for the employee is showing a connection between the disability, their limitation, and the need for the accommodation.
  7. 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.
  8. If an employee prevents the employer from understanding her disability, then the employer’s duty to accommodate never arises.
  9. 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.
  10. 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.
  11. In the Fourth Circuit, a failure to accommodate is a separate cause of action.
  12. 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.
  13. Regardless of ADA Title, the interactive process is always a good idea.
  14. 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.