Within the last week, the Supreme Court has come down with two decisions of relevance to our blog (Osseo Area Schools and Ames). Each is worth a separate blog. This week’s blog entry is going to be the Osseo Area Schools, which I previously blogged on its oral argument here. As usual, the blog entry is divided into categories and they are: Justice Roberts unanimous opinion for the Court; Justice Thomas with Justice Kavanagh joining, concurring opinion; Justice Sotomayor with Justice Jackson joining, concurring opinion; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Justice Roberts for the Court

 

  1. Outside of the context of elementary and secondary education, plaintiff can establish a statutory violation and obtain injunctive relief under the ADA and the Rehabilitation Act without proving intent to discriminate. However, to obtain compensatory damages, Courts of Appeals generally agree that a plaintiff must show intentional discrimination. In those situations, a showing of deliberate indifference is required. However, deliberate indifference does not require a showing of personal ill will or animosity towards the person with the disability.
  2. Nothing in the text of Title II of the ADA or §504 of the Rehabilitation Act suggests that claims arising in the education context should be subject to a distinct more demanding analysis.
  3. The substantive provisions of both Title II and §504 by their plain terms, apply to qualified individuals with disabilities, and there is no textual indication that the protections of either disability discrimination statute apply with lesser force to certain qualified individuals bringing certain kinds of claims.
  4. Both Title II and §504 make their remedies, procedures, and rights available to any person.
  5. 20 U.S.C. §1415(l) explicitly states that nothing in the IDEA shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the ADA, Title V of the Rehabilitation Act (including §504), or other federal laws protecting the rights of children with disabilities.
  6. Reading IDEA to implicitly limit the ability of children with disabilities to vindicate their independent ADA and Rehabilitation Act rights is irreconcilable with the unambiguous directive of §1415(l). It also conflicts with the Eighth Circuit’s own interpretation of its precedent.
  7. Both parties agreed at oral argument that different standards for educational situations v. noneducational situations made no sense.
  8. Reviewing whether there should be a “bad faith or gross misjudgment,” standard was never presented to the court and should not be considered without adversarial briefing.
  9. The challenges that students with disabilities have to face do not include having to satisfy a more stringent standard of proof than other plaintiffs to establish discrimination under Title II of the ADA or under §504 of the Rehabilitation Act.

 

II

Justice Thomas with Justice Kavanagh Joining, Concurring Opinion

 

  1. The school district argues that §504 unambiguously covers only intentional discrimination and nothing in §504 conveys congressional intent to impose liability on schools for unintentional discrimination.
  2. The commerce clause does not give Congress sweeping power to protect the learning environment in schools.
  3. The 14th amendment does not require schools to make special accommodations for the disabled. Rather, it prohibits only conduct lacking a rational basis.
  4. Title VI prohibits only intentional discrimination.
  5. The Supreme Court has held that private individuals can only recover compensatory damages under Title VI if they show intentional discrimination.
  6. There has to be skepticism about whether the same statutory language can mean two different things depending upon the relief sought.
  7. The school district has a point with respect to its constitutional objection when it argues that the Constitution compels a plaintiff to prove intent to discriminate before court can find a violation of Title II or §504 or award any kind of relief.
  8. Since constitutional compliance for spending clause legislation rests upon whether the recipient voluntarily and knowingly accept the term of the contract, the district’s argument that §504 unambiguously covers only intentional discrimination has something to it.

 

III

Justice Sotomayor with Justice Jackson Joining Concurring Opinion

 

  1. The text and history of both the ADA and §504 of the Rehabilitation Act foreclose any requirement that proving intentional discrimination is mandatory.
  2. Title II of the ADA provides that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of the public entity, or be subjected to discrimination by any such entity.
  3. The statutory language contains no reference to improper purpose. To the contrary, the phrase “by reason of,” requires no more than a causal link between the individual’s disability and their exclusion from participating in or receiving the benefits of a covered service, program, or activity. That is the ordinary meaning of the phrase, “by reason of.”
  4. Persons with disability can lose access to benefits and services “by reason of,” or “because of,” their disabilities absent any ambiguous animus or purpose, i.e. intentional discrimination. For example, stairs may prevent a person using a wheelchair from accessing a public space. Another example, the lack of auxiliary aids may prevent a deaf person from accessing medical treatment at a public hospital. Yet another example, braille-free ballots may preclude a blind person from voting. None of these situations involve any animus on the part of the city planner, hospital staff, or the ballot designer. Therefore, both the ADA and §504 reach cases involving a failure to accommodate, even where no ill will or animus toward people with disabilities is present.
  5. Both statutes impose an affirmative obligation on a covered entity to provide reasonable accommodations, which also undercuts any improper purpose requirement. Those affirmative obligations to reasonably accommodate persons with disabilities underscore that the statutes do not require improper purpose to prove liability.
  6. The use of the passive voice in both statutes only reinforces that conclusion. Congress use of the passive voice often indicates a focus on the event that occurs without respect to a specific actor, and therefore without respect to any actor’s purpose.
  7. The Supreme Court has previously recognized that when Congress enacted the Rehabilitation Act, it perceived discrimination against persons with disabilities as most often the product not of ambiguous animus but rather of thoughtlessness and indifference-of benign neglect.
  8. Much of the conduct that Congress sought to alter in passing the Rehabilitation Act would be difficult if not impossible to reach where the Rehabilitation Act were to be construed to prescribe only conduct fueled by a discriminatory intent. That observation applies with equal force to Title II of the ADA, which Congress modeled on §504 of the Rehabilitation Act.

 

IV

Thoughts/Takeaways

 

  1. In Justice Roberts’ opinion for the Court he states at the end:

 

“That our decision is narrow does not diminish its import for A. J. T. and “a great many children with disabilities and their parents.” Luna Perez v. Sturgis Public Schools, 598 U. S. 142, 146 (2023). Together they face daunting challenges on a daily basis. We hold today that those challenges do not include having to satisfy a more stringent standard of proof than other plaintiffs to establish discrimination under Title II of the ADA and Section 504 of the Rehabilitation Act.”

 

This is not the first time we have seen Justice Roberts use language indicating that he gets disability beyond a theoretical construct. It also makes you wonder how he would decide a case asking for a strict  intentional discrimination standard across the board of the ADA/§504 universe.

  1. After this case, the standard for getting compensatory damages for Title II or §504 claims is clearly deliberate indifference. What does that standard actually mean is unclear from the opinion for the Court. However, Justice Sotomayor cites with approval a case that we previously blogged on here. That case is already the leading case in the area of deliberate indifference with respect to Title II of the ADA and §504 and may become even more prominent now.
  2. Failure to accommodate situations often do not involve intentional discrimination at all as Justice Sotomayor ably lays out. For example, two instances happened to me yesterday when I was coming back from my trip. First, a flight attendant did not encourage a person sitting next to me to tap me to find out if I was interested in having a drink and a snack on the flight. Apparently, she did wave at me, but I did not see it. I previously had been on a flight where the flight attendant instantly realized that I may have a hearing loss and then asked a person next to me to tap me so as to get my attention. I made the mistake yesterday of assuming that every flight attendant would do that. In the future, I will notify the flight attendant when boarding that there may be an issue. The point of this incident is that there was no ill will intended in that moment but rather a failure to accommodate. Another example is, when I tried to leave the remote airport parking lot, the machine would not process my ticket. The cashier, two booths over, was wearing a mask and trying to explain to me what I had to do. I had to tell her that I could not understand her because she was wearing a mask (I am a lip reader), and that I was deaf. Eventually, she raised the level of her voice and also used hand motions so that I could figure out what I had to do. In both of these cases there was no intentional discrimination. The ADA certainly has other provisions in it reaching beyond the failure to accommodate scenario, but certainly with respect to failure to accommodate matters, intentional discrimination cannot possibly be something that would be required.
  3. One of the things going on with the different opinions in Osseo, is that it is possible there is some confusion about how different each of the titles of the ADA are from each other. They all deal with the same definition of disability and a reasonable accommodation/modification paradigm, but after that they can diverge quite a bit. Attorneys may need to educate the judges they are before as to the differences.
  4. We do know from this blog entry, that emotional distress damages are out for §504 claims. Open question whether they might be in for Title II claims, though the courts so far are consistently holding that emotional distress damages are not in play for Title II claims.
  5. Expect this case to have wide impact with respect on Title II and §504 litigation. However, you can find dozens and dozens of cases saying that to get damages under Title I of the ADA, intentional discrimination is required. In fact, good faith on the part of the employer is a defense to damages claims. See also §IV(4) of this blog entry.
  6. The term “special accommodation,” drive many of us in the disability rights space absolutely bonkers. There is nothing special so to speak about the accommodations we need. All that is needed is the reasonable accommodations that get us to the same starting line as a person without a disability. In short, for that reason and because the term is often used in a pejorative way, stay away from using the term “special,” or “special accommodation,” whenever possible.

Before getting started on the blog entry of the week, housekeeping matters. Next week I will be traveling most of the week, so do not expect a blog entry from me next workweek. Also, I just did an hour long interview with Claudine Wilkins, Esq., where we had a fantastic discussion about the federal and Georgia laws dealing with service animals and emotional support animals. I put it on my presentation page but am linking it here as well (I just found out, that the captioning could be much better. I have been informed that this will be fixed over the weekend (6/7-8), and then reposted).

Today’s blog entry is a short one and is a two-for-one. In the first case, the Eighth Circuit issued its en banc opinion in Huber v. Westar Foods, here. In the second case, we look at a United States District Court opinion from Oregon, Cusker v. Oregon Health Authority, here, talking about how ADA still applies even if the underlying issue involves something legal at the state level but not at the federal level. As usual, the blog entry is divided into categories and they are: key holdings in en banc decision in Huber; Cusker facts; Cusker’s reasoning denying the motion to dismiss; and thoughts/takeaways on Huber and Cusker. The blog entry is super short, so the reader will probably want to read the whole thing.

 

I

Key Holdings in En Banc Decision in Huber

 

  1. We previously discussed the panel decision here. A couple of big things from that panel decision were their holding that the honest belief rule gets narrowed if the plaintiff’s conduct is related to their disability. Another key holding was that adverse action was not much of a requirement.
  2. The en banc decision pulls back on the panel decision in important ways. In particular, the honest belief rule is as it is and is not narrowed by disability related conduct. Even the dissent doesn’t make that point, at least not explicitly. Also, adverse action doesn’t really come up.
  3. Misconduct can be grounds for termination even if related to disability. That holding by itself is not unusual. See this blog entry for example. However, things can get complicated if disability related conduct is involved. See this blog entry and this blog entry for example.
  4. Both the majority and the concurrence/dissent allowed the FMLA interference claim to go forward. Both the majority and the dissent seem to be thinking about ADA interference in the same way as FMLA interference. However, depending upon your jurisdiction that is not the case. See this blog entry for example.
  5. The concurrence/dissent implicitly moves away from McDonnell Douglas burden shifting being the end-all and be-all with respect to summary judgment. In many ways, the dissent reads along the lines of what might be called a “convincing mosaic,” train of thought when it comes to reviewing the record.
  6. Published decision and broke down 6-5.
  7. An update: On December 8, 2025, the Supreme Court declined to hear the case.

 

II

Cusker Facts

 

Oregon allows the use of magic mushrooms (psilocybin, which is a a hallucinogen). The use of magic mushrooms is limited to service centers where a client purchases, consumes, and experiences the effects of magic mushrooms under the supervision of a service facilitator. Plaintiffs are licensed or trained service facilitators for magic mushrooms seeking to provide home-based services to the disabled and terminally ill clients unable to travel to the service centers. Their view was that prohibiting home-based care violated Title II the ADA.

 

III

Cusker’s Reasoning Denying the Motion to Dismiss

 

  1. The requested remedy rests on physical access rather than use or distribution of a controlled substance in violation of state and federal laws.
  2. Plaintiffs seek compliance with the ADA so that their clients with disabilities will have the same physical access to a service that is available to nondisabled individuals.
  3. There is no conflict between federal (Controlled Substances Act), and state law in this case because plaintiffs are challenging and seeking modification of a state law to provide what plaintiffs contend are a reasonable accommodation under the ADA.
  4. The case is about whether Oregon must make reasonable accommodation of home-based services necessary to allow individuals with disability to access services and not whether to authorize an expansion of Oregon’s limited legalization of magic mushrooms. Therefore, there is no conflict between the ADA and the Controlled Substances Act.

 

IV

 

Thoughts/takeaways on Huber and Cusker

 

  1. The Huber panel decision was an outlier in the discussion of how disability related conduct impacts the honest belief rule. The en banc decision pulls back from that. However, as referenced above, you do want to proceed carefully when disability related conduct is involved.
  2. The dissent between the lines, raises the issue of whether the McDonnell Douglas burden shifting system is appropriate for summary judgment at all. This is an issue that several Supreme Court justices have noted over the years as an area of concern for them. It has even come up recently at the Supreme Court in oral argument in some of the cases they have heard recently. There is a shift going on in the courts on this. For example, some courts, as we discussed here, adopt a convincing mosaic system. Other courts refuse to use that terminology but adopt a similar system. In courts in the Seventh Circuit, I have seen cases talking about the McDonnell Douglas burden shifting framework being one approach for dealing with summary judgment but another option being the case we discussed here (which is akin to convincing mosaic but the Seventh Circuit wants no part of that term). If a “convincing mosaic,” kind of approach winds up being the rule, that would leave room for disability related conduct to impact any honest belief considerations.
  3. Huber conflates FMLA interference with ADA interference. To my mind, they are very different things. See this blog entry for example.
  4. The Cusker opinion allows for the case to get beyond the motion to dismiss stage. Not addressed in the opinion is whether a fundamental alteration would be involved by allowing the home-based services. To my mind, that argument certainly exists. My go to case for fundamental alteration with respect to governmental programs is Easley v. Snider, 36 F.3d 297 (3rd Cir. 1994). The Olmstead decision (527 U.S. 58 (1999)), also contains a discussion of fundamental alteration as a defense for governmental entities having to modify their programs.

I hope everyone had a great Memorial Day weekend.

 

As I have mentioned previously, the last few years have found me increasingly involved in the area of working with counsel representing healthcare professionals who are being forced out of the profession because of their disability. Part of that process includes people being put into the professional recovery programs, often called PHP’s but they can go by other names as well. You can find my blog entry here talking about the potential ADA issues that are involved when a person gets referred into the recovery program, whether it be by an employer or some other way. It is not often that you actually see any of this get into the court system, but we now have such a case. The case of the week is Graziadel v. Capital Health System Inc., a published decision decided by the Appellate Division of the Superior Court of New Jersey on May 23, 2025, which can be found here. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that the trial court had subject matter jurisdiction over the disability discrimination claim; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

 

I

Facts (taken directly from the opinion and includes a footnote inserted into this section directly).

 

Plaintiff alleged that in 2000 she began employment with Capital Health as a nurse manager. In 2006, she “was promoted to a director-level position” and in 2008, she “was promoted to . . . Nursing Divisional Director of Maternal Child Health.” She alleged she was “a strong performer” and “received favorable performance evaluations.”

 

On the morning of September 24, 2018, while at work, “plaintiff was asked to submit to a breathalyzer test . . . [and h]er blood alcohol level was over the legal limit as a result of her consuming alcohol the night before.” “[P]laintiff was referred to defendant RAMP’s program.1 RAMP purport[ed] to provide recovery and monitoring programs on behalf of” the INI and the SNA. “As a result of RAMP and/or Capital Health’s internal policies, plaintiff was on a leave of absence from approximately September 25, 2018 until March of 2019.” During this period of time, “plaintiff was assured . . . that her job would be there for her when she returned.”

 

On October 5, 2018, plaintiff and “[t]he New Jersey Board of Nursing [(Board)] and/or [RAMP]” executed a private letter agreement (PLA). In part, the PLA provided that plaintiff agreed: [T]hat any deviation from the terms of this [PLA] without the prior written consent of the Board shall constitute a failure to comply with the terms of this agreement. Upon receipt of any reliable information indicating that you have violated any term of this agreement, your nursing license may be automatically suspended by the Board. You may, upon notice, request a hearing to contest the entry of such an order.

 

In November 2018, plaintiff was advised “that she could not go back to her management position and that it would be two to three years before she could go back to that job.” Thereafter, plaintiff was advised “that a management position would be ‘too stressful’ and that she needed to focus on recovery.” Plaintiff was told “that she would not be able to return to a management position for five years.”

 

Plaintiff “successfully underwent all of RAMP’s requirements during her leave of absence, including three Alcoholics Anonymous meetings per week as well as an initial period of ninety meetings in ninety days.” Plaintiff “pleaded with RAMP to allow her to return to her management position, stressing that she had successfully completed all of RAMP’s requirements[,] . . . had been in nurse management for over thirty years[,] . . . did not have any primary patient responsibilities[,] . . . [and] was primarily an administrator.”

 

In February 2019, RAMP advised Capital Health plaintiff “would not be returning to her management position.” Further, “[w]hen [plaintiff wa]s approved to return to work, RAMP staff w[ould] work with her to find an appropriate non-managerial position.” In April 2019, plaintiff wrote to RAMP and “implored [it] to allow her to be reinstated to her rightful management position.” In response, plaintiff was advised “that she would not be getting a managerial position for five years.” In April 2019, “plaintiff returned to work at Capital Health. She was given the job of Quality and Safety Department, Performance Improvement Analyst.” Her salary was approximately half of what she earned in her prior position.

 

Further, plaintiff alleged “[t]he refusals to cooperate . . . [were] in direct retaliation for plaintiff’s lawsuit . . . and w[ere] the by-product of continued discrimination and failure to accommodate.” In addition, plaintiff claimed RAMP, “with . . . knowledge of [her] . . . discrimination lawsuit,” discharged her from the program because “she had been allegedly non-compliant” and the “decision to discharge plaintiff from RAMP put[ her] license and career in severe jeopardy.” 2 She reiterated her LAD allegations and included a claim for retaliation.

 

In November 2019, plaintiff filed her complaint. She claimed she “suffer[ed] from alcoholism” and defendants violated the LAD by discriminating against her on that basis.

 

Prior to appealing the decision, plaintiff settled her case with Capital Health.

 

The lower court dismissed the claims for lack of subject matter jurisdiction and plaintiff appealed.

 

II

Court’s Reasoning That the Trial Court Had Subject Matter Jurisdiction over the Disability Discrimination Claims.

 

  1. The court cited to the preamble to the New Jersey Law Against Discrimination. In that preamble, several points are relevant, including: 1) practices of discrimination against any of the inhabitants in New Jersey because of disability are matters of concern to New Jersey; 2) such discrimination threatens not only the rights and proper privileges of the inhabitants of the State by menaces the institutions and foundations of a free democratic State; 3) legislature opposes discriminatory practices against any person by reason of disability in order to ensure economic prosperity and general welfare of the inhabitants of the State; 4) the harm people with disabilities face when they are the subject of discrimination includes: time loss; physical and emotional stress; illness; homelessness or other irreparable harm resulting from the strain of employment controversy; relocation, search and moving difficulties; anxiety caused by lack of information, uncertainty, and result in planning difficulties; career, education, family and social disruption; and adjustment problems; 5) damages available to all persons protected by the New Jersey Law Against Discrimination must be liberally construed in combination with other protections of New Jersey law.
  2. Alcoholism is a handicap under the New Jersey Law Against Discrimination.
  3. The New Jersey Law Against Discrimination prohibits the refusing to hire or employ or to bar or to discharge from employment such an individual or to discriminate against such an individual in compensation or in terms, conditions or privileges of employment because of disability.
  4. The New Jersey Law Against Discrimination also makes an unlawful employment practice to require employees or prospective employees to consent to a shortened statute of limitations or to waive any of the protection provided by the New Jersey Law Against Discrimination.
  5. The New Jersey Law Against Discrimination also forbids retaliation.
  6. A person complaining of discrimination under the New Jersey Law Against Discrimination can either file with the State a verified complaint in writing within 180 days after the alleged act or they could proceed directly to a lawsuit in New Jersey Superior Court. That is, a party complaining of discrimination in violation of the New Jersey Law Against Discrimination is not required to raise claims of discrimination or retaliation in any other proceeding.
  7. A lawsuit entitles the plaintiff to a: jury trial; all remedies available in common law tort actions, injunctive relief, and remedies provided in any other statute; and treble damages as well as backpay. The statute of limitations for such a lawsuit is two years.
  8. An employee who believes she has been the victim of retaliation is not required to raise those retaliation claims as a defense in disciplinary cases. Depriving an employee of that choice and mandating he or she asserts and litigates his or her retaliation claim in the disciplinary proceeding would severely curtail the employee’s rights under the New Jersey Law Against Discrimination as well as to the important benefits of a Superior Court forum (such as more expansive discovery; a trial by jury, and the full range of remedies available in civil action brought under those statutes).
  9. New Jersey Law Against Discrimination does not permit any waiver of the protection provided by the New Jersey Law Against Discrimination or to the forced consenting to a shortened statute of limitation.
  10. Any hearing before the disciplinary authorities would have been limited to whether the information received was materially false. Such a hearing would not have addressed plaintiff’s New Jersey Law Against Discrimination claims or replicated her right as recorded in the law division proceeding or allowed for the array of remedies available under the New Jersey Law Against Discrimination.
  11. Defendants arguments that plaintiff is impermissibly attacking an agency ruling simply does not fly for the following reasons: 1) plaintiff has the right to file her complaint in the law division in the first place; 2) there is nothing about plaintiff’s New Jersey Law Against Discrimination case with respect to her discrimination or retaliation claims that are peculiarly within the agency’s discretion, or requires agency expertise; 3) plaintiff is not seeking anything other than a determination regarding whether defendant discriminate or retaliated against her in violation of the New Jersey Law Against Discrimination. After all, defendant never considered these issues, and therefore there can be no inconsistency; and 4) plaintiff did not raise her New Jersey Law Against Discrimination claims with the defendant.

III

Thoughts/Takeaways

 

  1. I am not licensed in New Jersey.
  2. The case stands for the significant proposition that both employers AND PHP’s are subject to disability discrimination laws.
  3. The case is a published decision.
  4. This is not an ADA case at all. When it comes to the rights of people with disabilities, state laws can vary significantly. They often match the ADA but sometimes they go further. They can also vary in how disability is defined, what constitutes a disability, and the number of employees necessary before that state law will cover an employer. Not all states have disability discrimination laws. For example, Georgia’s law is extremely limited and is limited to state entities. Alabama to my knowledge (I am not licensed in Alabama), has no such law at all.
  5. Alcoholism is also a disability under the ADA as well, though the rules can be a bit different. We discussed alcoholism as a disability numerous times in our blog, such as here by way of example.
  6. Courts are not likely to take kindly to any document signed by an individual shortening the statutory statute of limitations.
  7. The State statutes are going to have various provisions with respect to whether exhaustion of remedies is required, so be sure to check your jurisdiction.
  8. The PHP’s programs are often termed “voluntary.” However, as the information in this case makes clear (the court provides that information in a footnote, but I inserted that information (October 15 paragraph), directly into the facts section of this blog entry), that is hardly the case because if a person does not comply, their license is at risk.
  9. The ADA is a nondelegable duty, as we discussed here.
  10. The ADA always requires an individualized analysis. See this case for example.
  11. For a more detailed analysis of the ways that PHP’s might discriminate against persons with disabilities, check out this blog entry.
  12. The decision raises an interesting issue by its discussion of when a collateral attack is impermissible, as it creates the question of whether a plaintiff should even try to resolve the disability discrimination claims internally before filing suit because a plaintiff does not want to appear to have waived their rights to proceed in court. One way to deal with that might be making it clear in the advocacy that it is the disability discrimination at issue and not anything else. You might even add explicit language that disability discrimination claims are not being waived by trying to fix the problem internally first. The issue of collateral attacks is something we have seen before, such as here.
  13. Despite how the opinion reads, New Jersey Law Against Discrimination no longer uses the term “handicap,” but some laws still do,  such as, for example, the Fair Housing Act.
  14. Check your jurisdiction as to how it interprets words associated with causation, as word use and interpretation of those words may vary from one jurisdiction to the other. A must read is this blog entry.
  15. This is an employment case. However, the cases I often see involve referrals to PHP’s outside of the employment context. Those situations are a lot more complicated because the statutory provisions and final regulations for Title I, II, and III can be very different from each other. It is certainly my view that as a provider of professional services, PHP’s are subject to Title III of the ADA under 42 U.S.C. §12181(7)(F)-i.e. service establishment.

Before getting started on the blog of the week, a housekeeping matter. I usually get my blogs up on Monday and sometimes Tuesday or even Wednesday. However, my daughter just finished her third year of college and is home for a short time before starting her summer gig. So, my schedule for the next couple of weeks will be a bit all over the place as will the day my blog goes up.

 

The blog entry of the day is Strife v. Aldine Independent School District (AISD), here, a published decision from the Fifth Circuit decided on May 16, 2025. It is a resounding win for people with disabilities from a circuit where you don’t often see that. There are lots of good things to discuss, including unreasonable delay in granting an accommodation, whether failure to accommodate claims require an additional adverse action, and a bunch of other stuff. As usual the blog entry is divided into categories, and they are: facts; court’s discussion of procedural history; court’s discussion of whether a delay in granting a reasonable accommodation may constitute an ADA violation; court’s reasoning affirming summary judgment as to the straight up disability discrimination claim; court’s reasoning affirming summary judgment as to the retaliation claim; court’s reasoning affirming summary judgment as to the interference claim; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

Plaintiff, or Strife, previously served in the U.S. Army and was deployed to Kuwait and Iraq in late 2003 in support of Operation Iraqi Freedom. During her service she sustained shoulder, leg, and brain injuries and was later diagnosed with PTSD. She was medically discharged in May 2005.

 

After discharge, plaintiff pursued a career in the classroom when she joined the Aldine Independent School District (AISD) as a fifth and sixth grade teacher. Her disability rendered her unable to continue teaching in the classroom and she switched to a testing coordinator position within the district in 2015. She excelled in that position and after six years was promoted to work in the human resources department in 2021. Unfortunately, her disability progressed and in 2017, the U.S. Department of Veterans Affairs (“VA”) classified her as: • 100% disabled from service-related PTSD and depression; • 20% disabled from a right knee sublaxation (partial dislocation); • 10% disabled from right knee joint disease; and • 10% disabled from a chronic left ankle sprain. Strife was unable to mitigate her disabilities with alternative treatments. She thus applied for and received a certified service dog nicknamed “Inde.” Inde assists Strife with her physical and psychological disabilities by helping her maintain her balance and gait, protecting her from falling, and mitigating acute PTSD symptoms.

 

On August 30, 2022, plaintiff submitted a request through the district’s human resources portal asking the school district to accommodate her disabilities by allowing her service dog to accompany her at work. At the meeting on September 16, the district’s employee accommodation committee determined that it needed additional information to determine what specific job functions are impacted by her disabilities and whether there were any alternative accommodations. Plaintiff provided a letter signed by her provider attesting to the need for a service animal. However, AISD deemed the documentation insufficient because the provider was not a board certified medical doctor. Plaintiff then provided a letter from her treating psychiatrist also attesting to the need for a service dog.

 

When her physician was asked what reasonable accommodations would enable plaintiff to overcome her functional limitations, he responded having the support of a service animal. However, that wasn’t good enough for the AISD. They then insisted on a medical examination by a physician working on behalf of the school district and then that individual reviewing additional information.

 

Plaintiff frustrated by the apparent stonewalling sought legal advice that culminated in the following exchanges in 2022 and 2023.

 

August 30 Strife submits her request for accommodation through the Broadspire portal.

 

November 11 The organization that issued Strife’s service dog certification informs AISD that its insistence on a medical exam constitutes “discrimination under the ADA.”

 

November 16 AISD asks Strife to clarify whether she is “refusing to continue the interactive process to determine whether you can perform the essential functions of [your] job with or without reasonable accommodation.”

 

November 18 Strife’s lawyer writes a letter outlining disability law violations. AISD’s counsel replies that the district is aware that Strife believes that “a service dog is the sole accommodation,” that AISD had the right to “engage in the interactive process to determine the appropriate accommodation,” and that the exam was needed to “determine additional accommodations.”

 

November 19 Strife’s lawyer asks AISD to provide information about “additional accommodations” that the district was contemplating.

 

December 5 AISD’s counsel responds that the doctor letters that Strife provided were unreliable (they lacked letterheads and had conflicting doctor titles, and Strife admitted that she wrote at least one letter herself), and an exam was needed to “determine what accommodations are reasonable and required.”

 

December 23 AISD schedules a medical exam for Strife.

 

January 6, 2023 Strife’s lawyer provides three letters, including correspondence from two other physicians, confirming limitations and urging that AISD approve the request.

 

 

On January 6, 2023, Strife filed a Charge of Discrimination with the Texas Workforce Commission and Equal Employment Opportunity Commission. She asserted that AISD discriminated against her on the basis of her disability by denying a reasonable accommodation and retaliating against her actions. Four days later, on January 10, Strife underwent a VA led examination that assessed her physical disabilities. Two doctors separately confirmed that (1) Strife suffered from impairments relating to standing, balance, and gait, and (2) Inde was required “in all settings (including place of employment) to avoid further balance-related injuries.”

 

Strife’s attorney transmitted these additional letters to AISD’s counsel. The district’s counsel replied that the VA’s evaluation was lacking because the evaluating doctor’s notes were not provided. Strife’s attorney provided the examination notes on January 13. AISD then claimed that the supplemental letters were insufficient because they failed to “provide any information regarding potential alternative accommodations.”

II

Court’s Discussion of Procedural History

 

On February 1, 2023, Strife filed suit in the Southern District of Texas alleging (1) failure to accommodate, (2) hostile work environment, (3) disability discrimination, (4) retaliation, and (5) interference, all in violation of the Americans with Disabilities Act (“ADA”), the Rehabilitation Act of 1973, and Texas disability laws.2 She sought a temporary restraining order and preliminary injunction against the district on February 6.

 

During the TRO hearing, held on February 15, the district court denied Strife’s TRO request, but directed the parties to complete the “interactive process” as soon as possible. Six days later, and in response to an email from an AISD attorney, Strife’s counsel confirmed “that a walker, cane, and/or wheelchair would not be an effective accommodation of Ms. Strife’s physical impairments, as they would be of no benefit if/when she falls.” The district granted Strife’s request for accommodation two days later.

 

Strife continued to press her claims, and eventually filed a Second Amended Complaint. AISD moved to dismiss Strife’s failure-to accommodate and hostile work environment claims on November 20, 2023, and (in the alternative) for summary judgment on all claims on January 29, 2024. On June 12, 2024, the district court granted AISD’s motion to dismiss Strife’s failure-to-accommodate and hostile work environment claims. It also granted AISD’s motion for summary judgment as to Strife’s disability-based discrimination and retaliation claims and her ADA interference claim. Strife timely appealed.

 

III

Court’s Discussion of Whether a Delay in Granting a Reasonable Accommodation May Constitute an ADA Violation

 

  1. Citing to a footnote in one of its prior cases, the court noted that in many employment cases, an employee continues working in the capacity arguably needing accommodation while the interactive process is ongoing. An employer that drags its feet in that situation forces the employee to work under sub optimal conditions, then could simply document the employee’s failures, and then could use the employee’s difficulties as an excuse to terminate the employee. An employer’s delaying of the process under those conditions might create liability.
  2. The ADA does not permit an employer to circumvent the ADA’s protections by forcing the aggrieved employee to endure an endless interactive process, though the ADA does not require an employer to move with maximum speed to complete that process and preempt any possible concerns. Instead, the employer can move at whatever pace it chooses so long as the ultimate problem-the employee’s performance of her duties-is not truly imminent.
  3. Plaintiff’s allegations do not merely concern a delay, but rather they suggest a lack of good faith from AISD to meaningfully evaluate her request in an appropriate and timely manner.
  4. The Fifth Circuit has previously stated, along with other circuits, that a delay in providing reasonable accommodations may show a lack of good faith in the interactive process.
  5. Plaintiff pled sufficient facts evidencing a lack of good faith on the part of AISD as she sought to use a service dog at work and did not require the district to handle the dog or for the district to modify her workplace whatsoever. Further, the district’s delay in granting that request undoubtedly forced her to work under sub optimal conditions for those six months.
  6. According to plaintiff, the district filibustered the request because it wanted her to undergo an independent medical exam. While such an exam is not inherently unreasonable per the EEOC’s enforcement guidance if the individual provides insufficient information, plaintiff claimed that she repeatedly provided AISD with the information confirming her disabilities and the need for an accommodation. Accordingly, a reasonable factfinder could find that the district’s insistence that she undergo an independent medical exam was unreasonable.
  7. Plaintiff also alleged that the school district failed to offer any reasonable accommodation for her disabilities and that her request was only granted after she initiated litigation and within weeks of a court scheduled injunction hearing. As a result, a reasonable factfinder could find that those additional allegations are reason to disbelieve the district’s claim that it needed to determine whether alternative accommodations were available.
  8. Reasonable modifications are not restricted to modifications enabling the performance of essential job functions.
  9. A failure to accommodate claim does not require proof of an adverse employment action.

 

II

Court’s Reasoning Affirming Summary Judgment as to the Straight up Disability Discrimination Claim

 

  1. AISD did not literally alter the terms, conditions, or privileges of her employment during the six-month interactive process.
  2. In a footnote, the court said that Muldrow as a title VII case was not applicable to the ADA. Even if it was, AISD made no change to plaintiff’s employment terms.
  3. Plaintiff did not suffer any physical injury during the six-month interactive process.
  4. The independent medical exam is not an injury because that examination never occurred as the school district withdrew its request and granted her request as soon as her attorney confirmed that alternative accommodations did not exist. Even if the examination occurred, there is no evidence to suggest that it would have affected the terms, conditions, or privileges of her employment with the school district.

 

III

Court’s Reasoning Affirming Summary Judgment as to the Retaliation Claim

 

  1. While the Fifth Circuit has not addressed whether a request for an independent medical exam constitutes an adverse employment action for a retaliation claim, requiring the individual to see the employer’s health professional could be considered retaliation if the employee has already provided sufficient documentation of their disability and accommodation needs.
  2. The record offers ample support for AISD’s assertion that despite plaintiff’s submissions, it still needed an independent medical exam the to complete its to complete its reviewewvi . While plaintiff did submit several different items of supporting documentation, none of those items addressed whether any alternative measures, such as a cane, wheelchair, or workplace modification, could alternatively address plaintiff’s disability. After all, the ADA provides a right to reasonable accommodation, not to the employee’s preferred accommodation. Accordingly, AISD had a legitimate and nondiscriminatory reason for insisting that plaintiff undergo an independent medical exam in order to determine whether any alternative accommodations existed. Indeed, once plaintiff’s attorney confirmed that no alternative accommodations were sufficient, the district dropped its request for an independent medical exam and approved the service dog in the workplace.

 

IV

Court’s Reasoning Affirming Summary Judgment as to the Interference Claim

 

  1. The Fifth Circuit has not yet articulated a test for evaluating ADA interference claims, which can be found at 42 U.S.C. §12203(b).
  2. Breaking the statute down, an interference claim has at least three requirements: 1) coercion, intimidation, threats, or interference toward an individual; 2) on the basis of that individual’s exercise or enjoyment, or having exercised or enjoyed, or aiding or encouraging others in exercising or enjoying; and 3) any right protected under the ADA. The Seventh Circuit, in a case we discussed here, added a fourth element requiring that the interfering employer must be motivated by an intent to discriminate. The Ninth and D.C. Circuits have said that the anti-interference provision cannot be so broad as to prohibit any action whatsoever that in any way hinders a member of a protected class.
  3. Plaintiff’s argument for interference at summary judgment was restricted to a single footnote saying that the retaliation claim was distinct but predicated on the same underlying facts, which is an insufficient statement to carry the day.
  4. Since the district had a valid nondiscriminatory reason for not immediately granting the requested accommodation, it would be difficult to construe the district’s continued engagement in the interactive process as interference in violation of the ADA.

 

V

Thoughts/Takeaways

 

  1. The court also affirmed summary judgment on plaintiff’s hostile work environment claim saying that the allegations of such conduct did not sufficiently rise to the level of something so pervasive or severe as to create an abusive working environment. Also, a disagreement with an employer over terms of employment or an accommodation does not amount to harassment.
  2. This case makes clear that it is perfectly permissible for an employer to insist on documentation when it gets a reasonable accommodation request. However, it is so important to use common sense as documentation requests cannot be excessive. It really helps if people involved in determining the scope of a documentation request have a disability themselves because people with disabilities can be incredibly sensitive to what might be excessive documentation.
  3. The EEOC has no guidance whatsoever when it comes to service animals in the worksite. They have gone after employers that have denied service animals. For guidance an excellent preventive law approach and guidance on what is a service animal, look at the DOJ Title II and Title III regulations on service animals. While DOJ final rules are excellent preventive law, that doesn’t mean they are dispositive in the employment context, which is governed by EEOC final regulations and not the DOJ.
  4. My experience has been that it isn’t always easy to find a plaintiff side lawyer prior to termination. This case illustrates why it can be so important to have such a lawyer prior to termination.
  5. Interesting that the court distinguishes Muldrow because Muldrow talks about terms, conditions, and privileges of employment. The Fifth Circuit in this opinion actually uses the term “sub-optimal conditions,” on more than one occasion and yet distinguishes the case anyway. This strongly suggests that an adverse action requirement remains for non-failure to accommodate cases. What is an adverse action after Muldrow is not entirely clear, except we know that it is not much.
  6. Failure to accommodate claims in the Fifth Circuit do not require an additional adverse action. As we discussed in this blog entry, such a conclusion is probably mandated by Muldrow.
  7. Unreasonable delay in granting an accommodation is not only actionable but evidences a lack of good faith. The latter point is important because the lack of good faith is what allows for damages.
  8. In a statement very important for owners of service animals, reasonable modifications are not restricted to modification that enables the performance of essential job functions. In other words, a service animal is a reasonable accommodation even if it is not explicitly doing anything specifically related to an essential job function.
  9. Interesting that the Fifth Circuit talks about how if the examination occurred, there is no evidence to suggest that it would have affected the terms, conditions, or privileges of her employment with the school district. The last few years of my practice have found me increasingly involved with working with licensing counsel with respect to healthcare professionals with disabilities being placed into the PHP system because of their disability. If that universe is any indication, it is quite conceivable that the exam would have affected the terms, condition, or privileges of her employment. Again, we don’t know for sure, but it is possible.
  10. A request for an independent medical exam can constitute a sufficient adverse employment action for retaliation claim if the employee has already provided sufficient documentation of the disability and accommodation needs. This particular reasoning of the court also has big implications for the world of healthcare professionals with disabilities vis-à-vis these referrals to any PHP programs by the health care professional’s employer.
  11. The court in this opinion lays out the elements for interference, including citing a case we previously discussed, here. However, the Fifth Circuit doesn’t actually define what interference is. For that, you want to take a look at this blog entry.
  12. Engagement in the interactive process is not the same thing as interference. The distinction between the two becomes rather obvious when you look at this previous blog entry of ours.
  13. Be careful about overly restricting what type of documentation is acceptable, such as always insisting on documentation from a board certified physician. The question is whether the person has knowledge of the individual requesting the disability and has the expertise to speak on what might be needed to reasonably accommodate that disability. Such an individual could have a variety of qualifications.

As many of my readers know, Justice Souter died last week. I thought I would explore his legacy with respect to the rights of persons with disabilities. As usual, the blog entry is divided into categories and they are: opinions for the court; concurring opinions; dissenting opinions; and Heller v. Doe, a dissenting opinion the gets a category all of its own. Of course, the reader is free to focus on any or all of the categories.

 

I

Opinions for the Court

 

  1. Justice Souter wrote the opinion in Albertson’s v. Kirkingburg, here. In that case, the Court held that Sutton v. United Airline’s, here, admonition that mitigating measures must be considered when considering a disability applied to when the body does it by itself. What is notable about this case is that the phrase “general run of cases,” appears. Also, the decision has been overruled by the amendments to the ADA. Finally, Justice Thomas has an opinion in this case saying that the case could easily been decided by just referring to DOT regulations that would have prevented a plaintiff’s victory as the ADA does not preempt regulations from other executive agencies.
  2. Bell Atlantic v. Twombly, here. Justice Souter wrote the opinion saying that in an antitrust case, pleadings had to allege more than what we just thought of as traditional notice pleadings. That is, factual allegations must be enough to raise a right to relief above the speculative level. What is interesting is that the case that extended Twombly to beyond antitrust cases to all civil cases, Ashcroft v. Iqbal, here, found Justice Souter dissenting.
  3. Chevron v. Echazabal, here. Justice Souter wrote the opinion for unanimous Supreme Court holding that the EEOC regulations saying that direct threat to self or others was a perfectly permissible regulation. This case is absolutely one of the foundational cases in ADA jurisprudence. In particular, Justice Souter goes into detail as to how to go about determining a direct threat. That is, it must be based upon a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. It also must be based upon an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. What is a direct threat in this case became the basis for the EEOC regulations and the DOJ regulations talking about what is a direct threat. Keep in mind, the DOJ final regulation only deals with direct threat to others, while the EEOC final regulation deals with direct threat to self or others. The distinction can be incredibly important depending upon the context that direct threat arises in.

 

II

Concurring Opinions

 

  1. Justice Souter concurred in Barnes v. Gorman, here. In Barnes, Supreme Court held that punitive damages were neither available under Title II of the ADA nor under the Rehabilitation Act. He concurred in that opinion by saying that no clear answer as to the proper measure for compensatory damages in spending clause legislation existed. To this day, there is still no clear answer on the measure for compensatory damages in spending clause legislation. For example we do know from Cummings v. Premier Rehab Keller, which we discussed here, that emotional distress damages are not available under §504 of the Rehabilitation Act. Courts are holding that emotional distress damages are not available under Title II of the ADA as well. However, in Cummings and in its oral argument, the Court specifically said they were not addressing that question.
  2. In Nevada Department of Human Resources v. Hibbs, here, Justice Souter concurred saying that the FMLA was undoubtedly valid §5 legislation.

 

III

Dissenting Opinions

 

  1. In US Airways v. Barnett, here, Justice Souter dissented saying that nothing in the ADA insulates seniority rules from the ADA if you look at the statute’s legislative history. Further, it would not have been an undue hardship to allow the reassignment.

 

IV

Heller v. Doe

 

  1. The case that I most remember, is Justice Souter’s involvement in is Heller v. Doe, here. In that case, Kentucky had come up with a statutory scheme offering different levels of proof with respect to involuntary commitment of people with mental retardation as it was called at the time v. people with mental illness. They also had differences with respect to the ability to have a guardian involved depending on whether it was a person with mental retardation or a person with mental illness. The case is from 1993 and from the viewpoint of 2025, the majority opinion is a particularly jarring read considering the terms used (“retarded,” “mentally ill”), and what were thought to be current best treatment practices at the time. The majority opinion offers all kinds of reasons as to why there was a rational basis for the distinctions. Justice Souter in his dissent carefully tears down every one of those “rational,” reasons for the distinction to conclude that a rational basis simply does not exist for the distinctions. Justice Blackmon in his concurring opinion, thought a higher level of scrutiny than rational basis should be applied.
  2. The other thing that is particularly noteworthy about this case is that it gets used all the time for the proposition that people with disabilities are in the rational basis class. Heller simply doesn’t stand for that at all. Rather, the Court makes it extremely clear that the parties litigated the matter as if rational basis class was at issue and the Court saw no reason to address the question of whether a different level of scrutiny was necessary considering how the case had been litigated prior to the Supreme Court getting it.
  3. Similarly, the other case that gets used all the time for saying that persons with disabilities are in the rational basis class also is not a true rational basis case. In Cleburne v. Cleburne Living Center, Inc., here, the Court held that there was no rational basis for the City of Cleburne, Texas to exclude a group home from being able to be placed in a certain neighborhood. The Court goes into elaborate detail about why that simply does not withstand rational basis scrutiny. Justice Marshall concurred saying that the majority opinion’s analysis would be better referred to as rational basis plus rather than traditional rational basis.

 

Rest in Peace Justice Souter

Today’s blog entry is an update on a prior blog entry we discussed here. In the prior blog entry, we discussed how the police could escape liability when a place of public accommodation did not do the right thing with respect to allowing a service dog in its premises and the police were called. That decision allowed the plaintiff to pursue a motion to default again the business (referred to throughout this blog entry as the defendant). On April 25, 2025, the United States District Court for the Middle District of Pennsylvania, decided, here, it would grant the motion to default filed by the plaintiff on the grounds that the business violated both the ADA as well as the Pennsylvania Human Rights Act. As we have covered this case before, there is no reason to go into the facts at they can be found here. As usual, the blog entry is divided into categories, and they are: court’s reasoning for granting a default judgment against the defendant; court’s reasoning discussing the inability to grant injunctive relief and granting declaratory relief; court’s discussion of why it awards compensatory damages; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Court’s Reasoning for Granting a Default Judgment against the Defendant

 

  1. For a plaintiff to prevail under Title III of the ADA, a private plaintiff has to show: 1) he has a disability within the meaning of the ADA; 2) he was discriminated against by defendant on the basis of that disability; 3) he was denied goods or services by the place of public accommodation; and 4) the defendant owns, leases (or leases to), or operates a place of public accommodation.
  2. Plaintiff’s amended complaint contains sufficient facts supporting violations of both Title III of the ADA and the Pennsylvania Human Rights Act. In particular: 1) plaintiff alleged disabilities related to his physical and mental health that substantially impaired multiple life activities; 2) plaintiff alleged that defendant denied him the ability to use its services because of his reliance upon a service and support animal related to his disabilities; 3) the term “public accommodation,” is defined broadly by both federal and Pennsylvania antidiscrimination law and includes the business operated by the defendant; 4) plaintiff alleged outright intentional exclusion by the defendant on the basis of his disabilities and their failure to make modifications to existing facilities and practices because of the plaintiff’s service dog.
  3. In determining whether a default judgment should be granted, courts consider three factors: 1) prejudice to the plaintiff if default is denied; 2) whether the defendant appears to have a defense that can be litigated; and 3) whether defendant’s delay is due to culpable conduct.
  4. Plaintiff will experience prejudice if default is denied for several reasons: 1) the court advised the defendant early on in the case that it could not be represented pro se by one of its owners; 2) even with that admonition by the court, defendant never retained counsel despite three years of active litigation involving another defendant; 3) defendant ignored the amended complaint and did not participate in the deposition of the plaintiff or in the deposition of the officer involved. Therefore, defendant acted culpably by initially acknowledging the action and then disappearing from the litigation process altogether.
  5. The two defenses that the defendant has are if the animal was out-of-control and the handler did not take effective action to control it, or the animal was not housebroken. Neither of those exceptions apply, as the service animal was well behaved at the time of the incident and was also housebroken. Therefore, plaintiff’s request to use a service animal at defendant’s facility was a reasonable accommodation as a matter of law.

 

II

Court’s Reasoning Discussing the Inability to Grant Injunctive Relief and Granting Declaratory Relief

 

  1. Plaintiff’s amended complaint sought declaratory and injunctive relief.
  2. A private plaintiff under Title III of the ADA, can only get relief in the form of a temporary injunction, restraining order, or other order (as well as attorney fees of course).
  3. Discovery suggested that the defendant’s mall-based store closed during the litigation. So, plaintiff withdrew his request for a permanent injunction against the defendant. However, the declaratory relief action alleging that defendant’s actions, practices, and policies violated Title III of the ADA survives.
  4. In a footnote, the court noted that plaintiff had standing to pursue the declaratory relief action. In particular, plaintiff demonstrated an invasion of a legally protected interest, a concrete and particularized injury, and an actual injury. Further, his injury was traceable to the conduct of the defendant and not to the conduct of the dismissed former co-defendant State College Borough police. It is also redressable by Title III of the ADA.
  5. At the time of the incident, plaintiff simply sought to settle his service dog rights with the defendant through the assistance of some authority so he could watch his grandson play in the bounce house. He sought recourse from Nittany Mall security and the State College Borough Police Department to no avail.
  6. A purpose of the ADA is to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.
  7. Since Taylor has demonstrated that default judgment is warranted and that he sustained an injury in fact, a declaration by the court that the defendant’s practices and policies violated Title III of the ADA and the Pennsylvania Human Rights Act on the date of the incident, was in order.

 

III

Court’s Discussion of Why It Awards Compensatory Damages

 

  1. Unlike title III of the ADA, the Pennsylvania Human Rights Act expressly permit suits for damages.
  2. Compensatory damages may be recovered for humiliation, emotional distress and mental anguish. Further, a complainant’s own testimony of embarrassment and humiliation suffices to support an award for compensatory damages for violation of the Pennsylvania Human Rights Act.
  3. Under the Pennsylvania Human Rights Act, damage awards serve the dual purpose of discouraging discrimination and restoring the injured party to his or her preinjury status.
  4. The request by the grandson, an autistic individual at the age of five at the time, to go to the mall to play at the bouncy house was one of the first words the grandson ever said.
  5. Plaintiff testified that being excluded from the business made him feel horrible and upset and that the incident hurt so bad and still does. Those emotions were discernible in the courtroom three years later.
  6. Plaintiff also testified that the defendant’s employees were laughing at him and making fun of him as he spoke to the police. Therefore, a family centered positive experience for the grandson turned into a negative experience due to the denial of the plaintiff being able to use his service dog to access the facility.
  7. Plaintiff also testified that the entire incident took more than an hour to conclude and caused him to recall negative events that he experienced in the past. Plaintiff testified that he spent several years in and out of the hospital following his service in Vietnam and that the incident started to bring those memories back. It doesn’t matter that the plaintiff conceded that he did not seek counseling or other mental health treatment following the incident because he testified that he was fearful talking about the incident in a therapeutic setting would bring up other events from his past.
  8. The embarrassment and humiliation was evident from the body cam cameras worn by the police. Accordingly, the court awards the plaintiff $25,000.

 

III

Thoughts/Takeaways

 

  1. Interesting choice made by the defendant to not cannot defend the action despite the court’s admonition that they needed to hire an attorney to do so. The court was clearly not happy with defendant’s choice.
  2. Title III of the ADA does not allow for compensatory damages but the Pennsylvania equivalent does. That fact winds up costing the defendant $25,000.
  3. State law always has to be considered in these situations (I am not licensed in Pennsylvania but am in Georgia, Texas, and Illinois). For example, a state law may allow for compensatory damages even though Title III of the ADA does not. On the other hand, it is possible that a state law allows for compensatory damages, but does not have any provision for attorney fees per Title III of the ADA.
  4. Title III of the ADA allows for both injunctive relief and declaratory relief actions. You might not be able to get injunctive belief because it focuses on past conduct, but you could, as this case illustrates, get declaratory relief. Either would entitle you to attorney fees under the ADA.
  5. The court says that a service animal is a reasonable accommodation as a matter of law unless a valid defense is present.
  6. In the opinion, the court mentions “service and support animal,” but it certainly seems pretty clear from the opinion that a psychiatric service animal is involved and not a support animal.
  7. Training, training, training (I do a great deal of this), is so important. I absolutely realize that frontline staff may not have a great deal of ability to make the two inquiries and then reach a conclusion as to whether a service animal is involved or not. However, making the two inquiries will likely act as a deterrent against fraudulent claims that a service animal is involved. It also might help prevent negligent claims should the animal get out of control and harm another.

Yesterday, the United States Supreme Court heard oral argument in the Osseo Area School District case, transcript here. It was ostensibly about whether a higher standard for damages existed for IDEA claim than for the ADA/Rehabilitation Act claims. It turned out to be something different altogether after both sides agreed that the standard should be the same for all the laws involved. Also, the oral argument revealed that this case potentially has big implications for the world of disability rights writ large. As usual the blog entry is divided into categories, but they are not our usual ones. Instead, the categories are:  questions posed by the Justices to the plaintiff (petitioner in this case); questions posed by the Justices to the Solicitor General; questions posed by the Justices to the School District; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

 

Questions Posed by the Justices to the Plaintiff

 

  1. Justice Thomas wanted to know whether the oral argument was consistent with the question presented posed by the Court originally.
  2. Justice Roberts wanted to know whether the oral argument was consistent with the question presented, and whether anyone was defending the position challenged by the plaintiff.
  3. Justice Kavanaugh wondered whether regardless of whether the oral argument in the question presented specifically matched up, whether the Supreme Court could tell the lower court to decide what would be the appropriate standard, i.e. deliberate indifference v. bad faith or gross misjudgment.
  4. Justice Kavanaugh wanted to know the difference between deliberate indifference as defined by the Solicitor Gen. and bad faith or gross misjudgment. For this line of questioning, the case we discussed here, specifically came up in the oral argument (Liese was clearly what Justice Kavanaugh was thinking of in his questions).
  5. Justice Sotomayor wondered whether the disability discrimination statutes required bad faith, gross indifference, or even deliberate indifference given the language of those statutes and how disability discrimination works.
  6. Justice Sotomayor and Justice Gorsuch both wondered whether intentional conduct might be needed for injunctive relief but not but damages.
  7. Justice Sotomayor and Justice Gorsuch both wondered whether prohibiting someone from utilizing a program when they are qualified for that program isn’t by definition intentional conduct.
  8. Justice Barrett wanted to know how the United States Court of Appeals deal with the question of intent, whether intent is necessary, and what the standard might be.
  9. Justice Alito wanted to know the difference in costs between complying with the IDEA and the extra costs associated with what is a reasonable accommodation under the ADA.
  10. Justice Kavanaugh wanted to know if deliberate indifference was the standard for damages claims.
  11. Justice Kavanaugh wanted to know if the plaintiff agreed with the Solicitor Gen.’s formulation of what constituted deliberate indifference (essentially the Liese standard).
  12. Justice Kavanaugh wanted to know how would a deliberate different standard be applied to the facts of the case.
  13. Justice Jackson wanted to confirm that deliberate indifference was commonly used in many other contexts.

 

II

Question Posed by the Justices to the Solicitor Gen.

 

  1. Justice Thomas wanted to know if the Solicitor Gen. believed that intent was required for damages but not for injunctive relief and why that might be the case.
  2. Justice Gorsuch wanted to know how to reconcile the statutes at issue not drawing any distinction of the sort proposed by the school district, but yet the Court was being asked to draw a distinction between damages for injunctive relief by applying a higher standard when it comes to injunctive relief. Justice Gorsuch wondered if it shouldn’t be the other way around.
  3. Justice Gorsuch wanted to know whether deliberate indifference should be the appropriate standard for injunctive relief.
  4. Justice Jackson wanted to know how the question presented at all suggested whether the standard is deliberate indifference and whether the standard to be utilized was different between damages v. injunctive relief.
  5. Justice Roberts wanted to know whether it was important that nobody is defending the position that a majority of United States Courts of Appeals seem to have taken on the issue of what standard to apply.
  6. Justice Barrett wanted to know why the United States Courts of Appeals are all sticking with their majority rule despite the school district given up that position and jumped overboard on it.
  7. Justice Barrett wanted to know the difference between the school district’s position and the plaintiff’s.
  8. Justice Kavanaugh wanted to know the difference between deliberate indifference and bad faith.
  9. Justice Kavanaugh wanted to know if there was a case out there that would fail under the bad faith standard that would succeed under the deliberate indifference standard (in response, Liese explicitly came up).
  10. Justice Alito wanted to know what the lower courts were thinking in adopting a standard that the school district believed was completely unsupported.

 

III

 

Question Posed by the Justices to the School District’s Attorney

 

  1. Justice Alito wondered whether the way the lower courts have proceeded was related to the fact that the IDEA and the ADA proceed along very different lines.
  2. Justice Alito wanted to know just how far reasonable accommodation obligations would go, such as under the fact pattern of this case.
  3. Justice Kagan wanted to know what would happen if the Supreme Court said that a different approach to damages and injunctive relief among the laws was not in order but did not set forth a standard for other courts to follow.
  4. Justice Kavanaugh wondered whether the ADA concept of reasonable accommodation played a role in trying to figure out what a Title II entity would have clear notice of with respect to what it had to do to comply with the law.
  5. Justice Jackson wanted to know whether the interactive process plays a role in the deliberate indifference analysis. Same question for whether an accommodation was reasonable.
  6. Justice Thomas wanted to know whether the attorney for the school district was making the same argument at the Supreme Court that was made at the United States Courts of Appeals.
  7. Justice Jackson also wanted to know if the arguments Justice Jackson was hearing were consistent from what was made at the United States Courts of Appeals level and whether the nature of the IDEA allowed a certain precedent to have continuing value.
  8. The attorney for the school district explicitly accused plaintiff’s attorney of lying and being inaccurate with respect to the school district’s views. When asked to back down she wouldn’t. Justice Gorsuch wondered if the attorney for the school district should not be more careful. Chief Justice Roberts specifically referenced prior positions taken by the school district in their brief. Much later on in the oral argument, Justice Gorsuch read extensively from the school district’s brief showing that the plaintiff’s attorney was being accurate in what it described as the school district’s position and was not lying at all. The school district’s attorney then backed down.
  9. Justice Jackson wondered if the school district’s attorney’s assertion that not having a bad faith standard as the standard was uniquely stupid, why there were not lower court decisions applying that standard.
  10. Justice Barrett wondered whether applying a bad faith standard everywhere would not be a sea change/big deal in the disability rights universe.
  11. Justice Kavanaugh wondered whether the bad faith standard being advocated by the school district’s attorney required animus. He also wondered how cases might come out with the two different standards.
  12. Justice Kavanaugh wanted to know why deliberate indifference had taken such a hold on the lower courts.
  13. Justice Jackson wanted to know how the position taken by the school district’s attorney at oral arguments matched up with the question presented.
  14. Justice Jackson wanted to know if the position taken by the school district’s attorney at oral argument was consistent with positions taken during their briefing.
  15. Justice Jackson wanted to know whether the very nature of disability discrimination meant that disability discrimination could occur regardless of intent.
  16. Justice Jackson wanted to confirm the school district’s attorney position that accommodations did not appear in the ADA and that the disability discrimination statutes did not contain an accommodation requirement.
  17. Justice Sotomayor said that in other contexts, such as religious discrimination, the Supreme Court has said that neutral policies can still discriminate so why couldn’t you have intentional discrimination even in the absence of deliberate indifference or gross enough indifference.
  18. Justice Sotomayor wondered where bad faith comes from. She couldn’t even figure out where deliberate indifference came from. She wondered whether figuring out how intentional discrimination should be defined for every disability discrimination statute shouldn’t have been fully aired in the lower courts first.
  19. Justice Jackson struggled to understand how discrimination claims in the context of reasonable accommodations and disability aren’t something unique as discrimination in the disability context, is often an issue of accommodating a person with a disability so they can take part in programs and have full enjoyment of the services.
  20. Justice Sotomayor said it would’ve been nice to know the full nature of the school district’s oral arguments before before the actual oral argument.
  21. Justice Sotomayor wanted to know whether the question before the Supreme Court was whether there was an intent standard or a heightened standard in this case.
  22. Chief Justice Roberts wanted to know whether the question before the Court was in fact whether a different standard existed in the educational context than for other standards.
  23. Justice Sotomayor wanted to know if the school district’s attorney by her arguments (lying by the other side accusation), did not violate Supreme Court rule 15.2.
  24. Justice Alito wanted to know where the plaintiff actually said that a violation of the IDEA necessarily is a violation of the ADA as the complaint doesn’t make that statement.
  25. Justice Kavanaugh wondered whether intent is not satisfied by the deliberate indifference standard, Liese.
  26. Justice Kavanaugh wanted to know whether it was necessary to have an idea of what the law provides in order for the deliberate indifference standard to apply. He also wondered if the deliberate indifference standard was not fairly protective of school districts.
  27. Justice Jackson wanted to confirm the school district’s position that Title II of the ADA did not allow for discrimination outside of intentional discrimination, i.e. bad faith.

 

IV

Thoughts/Takeaways on the Oral Argument

 

  1. The argument starts off in an unexpected way because it leads with the concession that everyone is on board with a single standard applying and not as how the question was presented, which was whether a different standard was required under the IDEA v. the ADA/Rehabilitation Act.
  2. IDEA does not contain reasonable accommodation obligations. Instead, that law works through a process of goal setting and then layering in services for the student with a disability to meet those goals. It is interesting how several of the Justices viewed IDEA through the reasonable accommodation prism despite the fact that IDEA doesn’t work that way.
  3. Justice Sotomayor not sure where deliberate indifference comes from. I actually researched the question of where deliberate indifference as a standard comes from, and I am not sure either. It is entirely judge made.
  4. Deliberate indifference comes up all the time in Rehabilitation Act cases as well as in Title II cases.
  5. The oral argument makes you wonder whether a failure to accommodate by itself is intentional discrimination.
  6. This blog entry discusses a case that played a significant role in the oral argument and is a must read.
  7. The oral argument in the questions asked by the Justices lead one to wonder whether you might explicitly see the Court say that Title II and Title III of the ADA require an interactive process. We already know that Title I does. We also know that in the educational context, Title II does as well. We do know per PGA Tour v. Martin, here, that Title III, as well as the other titles for that matter, require an individualized analysis, and it isn’t a big step from that to require an interactive process.
  8. The school district’s attorney took very extreme positions during the oral argument that were not anticipated by either the Court or by the plaintiff’s attorney. In fact, plaintiff’s attorney said those positions would have been a five alarm fire to the disability rights community if known.
  9. Several Justices were not thrilled with the accusation of lying made by the school district’s attorney.
  10. There didn’t seem to be much support among the Justices for a bad faith standard beyond the deliberate indifference standard talked about in Liese,
  11. Broad support among the Justices existed for the proposition that you could have intentional discrimination without animus.
  12. In point of fact, as pointed out in plaintiff’s attorney rebuttal, the ADA contains numerous reasonable accommodation/modification provisions in the statute. More specifically: 1) 42 U.S.C. 12201(a) specifically references the Rehabilitation Act AND its regulations as something that the ADA statute and their regulations have to at least meet; 2) 42 U.S.C. §12101(a)(5) specifically references “reasonable modification;” 3) 42 U.S.C. §12132 specifically references the definition of qualified individual in 42 U.S.C. §12131(2), which contains a reasonable modification requirement; 42 U.S.C. §12201(h) makes clear that reasonable accommodation requirements apply to the ADA outside of the regarded as context.
  13. I was surprised that the Solicitor Gen. and the Trump administration came down on the side of the plaintiff and not on the side of the school district.
  14. Predicting what the Supreme Court will do based upon oral argument is a fool’s errand. That said, persons with disability are frequently successful at the Supreme Court level if employment issues are not involved, which is the case here. It does seem that judging from the oral arguments, that it looks like a win for persons with disabilities. The question will be what does that win look like.

I hope everyone had a happy Passover and a happy Easter. For those who are Roman Catholic, my condolences on the passing of the Pope.

 

Today’s blog entry concerns §309 of the ADA. It asks the question of whether fundamental alteration applies in §309 cases. The case of the day is Albert v. Association of Certified Anti-Money Laundering Specialists, LLC, here, a published decision from the 11th Circuit decided on March 14, 2025. It is actually the second time this case came up before the 11th Circuit Court of Appeals. The first time it came up before the 11th Circuit, the 11th Circuit remanded it back down because the lower court did not focus on §309. After it went back down, it comes back up with the issue of whether fundamental alteration applies to §309. As usual, the blog entry is divided into categories and they are: relevant law and key facts; court’s reasoning that §309 contains a fundamental alteration element; and thoughts/takeaways. Of course, the reader is free to read any or all of the categories. This is one of my shorter blog entries, so you will probably wind up reading the whole thing.

 

I

Relevant Law and Key Facts

 

42 U.S.C. §12189 (§309 of the ADA), provide that. ”any person that offers examinations or courses related to applications, licensing, certification, or credentialing for secondary or postsecondary education, professional, or trade purposes shall offer such examinations or courses in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals.”

 

Plaintiff worked as a bank compliance officer when he decided he wanted to become a money-laundering examiner, which requires passing a certification exam. The certification exam is the most prestigious and highly recognized anti-money laundering exam recognized by employers and law enforcement. The exam is designed to be administered in a closed book format. Plaintiff has anxiety and learning disorders. Among the reasonable accommodation requests he asked for, included taking the exam by open book. As mentioned above, when the trial court first looked at the matter, it didn’t look at §309 at all. So, the 11th Circuit remanded it for the trial court to consider the case from the §309 perspective. On remand, the trial court concluded that an open book exam was not a reasonable request, and plaintiff appealed.

 

II

Court’s Reasoning That §309 Contains a Fundamental Alteration Element

 

  1. Proving a §309 violation means showing three things: 1) plaintiff is disabled; 2) the requests for accommodation are reasonable; and 3) those requests have been denied. The only issue before the court was whether the accommodation request was a reasonable one. There was no dispute about the other two prongs.
  2. 309 (42 U.S.C. §12189), here, requires an exam provider to either: 1) ensure that a test is accessible to persons with disabilities; or 2) to offer alternative accessible arrangements for disabled individuals.
  3. Whatever §309 may or may not require, it does not require a test provider to offer an accommodation that fundamentally alters the nature of the exam.
  4. 309 applies to a test provider’s examination or courses and by its terms requires the provider to offer such (emphasis in opinion), examinations or courses in an accessible way. Utilization of the word “such,” assumes that both before and after the requested accommodation, the exam is the same exam (emphasis in opinion). In other words, the alternative accessible arrangement cannot alter the exam’s essential nature.
  5. While §309 requires an exam provider to offer alternative accessible arrangements to people with disabilities, that obligation doesn’t extend to accommodations that the provider can show fundamentally alters its exam. For example, no one thinks that §309 requires a flight school to modify it flying test by allowing a blind applicant to use autopilot because the ability to see is an essential ingredient of what a flight examination measures, and §309 does not require the provider to accommodate away an essential aspect of the exam.
  6. In a footnote, the court notes that the Fair Housing Act also contains a fundamental alteration defense. Further, 42 U.S.C. §12182(b)(2)(A)(ii) of the ADA also contains the fundamental alteration defense in explicit terms. It makes sense that §309 would also have that defense even if it is not explicitly contained in §309.
  7. The anti-money laundering exam was purposefully not designed to be an open book test because such a form of the test would essentially test the candidate’s ability to look up information as opposed to testing their knowledge of the examination content.
  8. Since taking the exam in an open book format would eliminate one of the aims of the exam, it would change the fundamental nature of the exam and therefore, the accommodation request was not reasonable.

 

III

Thoughts/Takeaways

 

  1. While this is a §309 case and not a more traditional ADA access case, it has wide implications for entities engaged in testing, especially colleges and universities.
  2. My daughter is in her third year of undergraduate studies, and she reports that as a result of technology and people having gone remote learning during the pandemic, the number of professors insisting on closed book exams is very small. With technology, it is simply too easy to be able to use technology when taking closed book exams. In fact, many of her peers have not taken a closed book exam in years, and when presented with having to do so, fail miserably. Yet, they are learning the material in the class and certainly are able to demonstrate what they have learned. There are also ways that open book tests can be configured so that it doesn’t turn into looking up information rather than demonstrating the knowledge a person has.
  3. The case does tell us what prima facie case for proving up a §309 claim is.
  4. A person with a disability can always make a reasonable accommodation request, but the request has to be a reasonable one, i.e. one that does not result in a fundamental alteration of what is involved.
  5. For figuring out what are the essential eligibility requirements of a class or course, I highly recommend looking at this blog entry.
  6. 42 U.S.C. §12189 is not just about exams but courses as well. This particular statutory provision is being used successfully to challenge the inaccessibility of web-based CLE providers to individuals with disabilities. For example, web-based CLE providers that do not provide captioning have faced discrimination suits under this provision, which have led to settlements (I was a plaintiff in such a case).
  7. The decision is published.
  8. §309 while in title III, applies to anyone offering exams related to licensure. So, Title II entities offering exams related to licensure are covered by §309.
  9. I disagree with the court that the ability to see is an essential ingredient of what a flight examination measures. I have simply seen too many employers confuse essential functions of the job with major life activities. It is the ability to fly a plane safely that the examination measures not the ability to see. Of course, how you can fly a plane safely without seeing is beyond me, but that doesn’t mean the essential element is sight. The essential element is flying the plane safely and being able to demonstrate that. The analogy that I have often used is that being an umpire does not require the ability to see the game as an essential function, rather it requires the ability to call the game accurately. Of course, you can’t do one without the other, but that does not mean the concepts are the same thing. In short, it is the function that matters and not the tasks.

Before getting started on the blog entry of the week, I want to wish everyone celebrating Passover, a happy Passover. Also, want to wish everyone celebrating Easter this weekend, a happy Easter.

 

Turning to the blog entry of the day, Omar v. Wayne State University Board of Governors, here, decided by the United States District Court for the Eastern District of Michigan on April 4, 2025, is a case with a lot to unpack. Among the issues to discuss are whether attending law school remotely is a reasonable accommodation and what kind of deference is owed to educational institutions by the courts. There is other stuff too. As usual, the blog entry is divided into categories and they are: facts; court’s discussion of Wayne State’s reasonable accommodation obligations; court’s reasoning discussing the particular accommodations at issue; courts discussion of the fundamental alteration to the program defense and how much deference it should give to Wayne State; court’s reasoning discussing whether Omar was qualified/otherwise qualified; court’s discussion of why the interactive process claim fails; court’s reasoning that sovereign immunity applies and therefore Omar is not entitled to monetary damages or retrospective relief; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the sections. Since there is so much going on with this case, I could definitely see the reader focusing on individual sections depending upon their interests in reading this blog entry.

 

 

 

I

Facts

 

Omar is legally blind and diagnosed with a degenerative eye disease and has been visually impaired since birth. In 2021, she was also diagnosed with postpartum anxiety and depression.

 

In 2020, Omar began applying to law schools, including Wayne State’s law school. Although Wayne State rejected her application, she was accepted at the University of Toledo for the fall 2021 semester. However, she ultimately only attended one week of classes there and then deferred her enrollment because of an issue with her disability related scholarship to the State of Michigan. Instead of returning to the University of Toledo, Omar reapplied to Wayne State for the fall 2022 semester and was initially waitlisted.

 

Around this time, the law school’s admissions officer, reached out to Omar to discuss her application, particularly how she could benefit from an improved LSAT score. Omar never retook the LSAT and Wayne State ultimately denied her second application; but it accepted her as a part-time student for the fall 2023 semester when she applied a third time.

 

Omar first reached out to student disability services regarding potential accommodations at Wayne State’s law school in August 2022 while her second application was waitlisted. She continued to discuss accommodation requests with student disability services and various law school faculty when she was accepted for the fall 2023 semester. However, these discussions essentially broke down around the spring of 2023 because she felt University was not receptive to the totality of her needs.

 

On April 26, 2023, Cherise Frost, SDS’s director, emailed Omar, stating that: (1) the University granted various accommodation requests regarding testing and technology; (2) it would allow certain limited modifications to the law school’s cold-calling practices in the classroom; and (3) it denied a request “for a fully remote, distance learning program” because this would be “a fundamental alteration to the WSU Law School’s course of study.” The email identified various proposed alternate accommodations the University believed would reasonably address Omar’s identified needs.

 

Omar filed suit on July 14, 2023, with all of her claims relating to student disability services and the law school’s alleged failure to reasonably accommodate her disability. Both parties moved for summary judgment.

 

II

Court’s Discussion of Wayne State’s Reasonable Accommodation Obligations

 

  1. To establish a prima facie case for failure to accommodate, a plaintiff has to show that: 1) she is disabled as defined by law; 2) she is otherwise qualified for the law school program with or without reasonable accommodation; 3) University knew or had reason to know about her disability; 4) she requested an accommodation; and 5) the University failed to provide the necessary accommodation.
  2. A defendant need not make an accommodation if doing so results in a fundamental alteration in the nature of the service, program, or activity or in an undue financial and administrative burden. 28 C.F.R. §35.150(a)(3).
  3. Plaintiffs are not entitled to their preferred accommodation, but merely a reasonable one that provides meaningful access to the public entity.
  4. Determining whether a particular accommodation is reasonable is highly fact specific and requires a case-by-case analysis.
  5. Once an accommodation is requested, the school has a duty to engage in the interactive process, which is a series of informal meetings and discussions in order to identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.
  6. A school’s failure to participate in the interactive process is actionable if the student demonstrates that: 1) the school knew about the student’s disability; 2) the student requested an accommodation; 3) the school did not show good faith in seeking appropriate accommodations; and 4) appropriate accommodations could have been provided but for the school’s lack of good faith.

 

III

Court’s Reasoning Discussing the Particular Accommodations at Issue

 

  1. Documentation from student disability services shows that Omar’s therapist recommended she attend law school completely remotely and the records repeatedly referenced her request for full distance learning and a completely remote, distance learning program, among other similar phrasing. However, the record also includes a letter from Omar’s therapist stating that she required the attendance of law school to be remote part-time. Omar also provided a spreadsheet to disability services explicitly referencing distance education for classes and noting her concerns with attending class in person. In later conversations between Omar and disability services staff, there was extensive discussion about her request for distance learning, distance education, a full-time remote combination, and to the entire program being remote.
  2. Omar’s husband said that Omar was merely requesting the same program alteration the law school had already provided during the pandemic when it was fully remote for all students. When disability services mentioned the possibility of allowing some remote component to the law school program, Omar proposed various alternatives to in person attendance, like meeting with professors one-on-one or having recorded lectures or having just the audio of lectures. At no point during the process did Omar refute the numerous characterizations that she sought to be fully remote for all law school programming.
  3. Once Omar retained counsel, her counsel made clear that Omar intended to attend all experiential education courses, such as clinics and externships in person. Omar also testified at her deposition that she saw fully remote attendance for all classes and lectures, but was willing to attend clinics, small group discussions, and guest lectures in person. Although Omar was unsure what if any specific portions of the law school’s first year curriculum she could attend in person, she rejected the University’s characterization that she was asking for a fully remote education.
  4. Accordingly, enough evidence exists to allow reasonable jurors to find in Omar’s favor concerning the scope of her reasonable accommodation request.

 

IV

Courts Discussion of The Fundamental Alteration To The Program Defense And How Much Deference It Should Give To Wayne State

 

  1. There is no authority within the Sixth Circuit explaining the precise extent of deference that should be extended. That said, deference cannot be absolute or law schools could effectively avoid any liability under the ADA and related statutes by declaring any requested accommodation to be a fundamental alteration and/or unreasonable.
  2. The Ninth Circuit has said that reasonable deference is one thing, but blind deference is quite another. It has also said that courts have to ensure that educational institutions are not disguising truly discriminatory requirements as academic decisions. Accordingly, educational institutions have a real obligation to seek suitable means of reasonably accommodating a person with disability and to submit a factual record indicating that they conscientiously carried out their statutory obligations. Carrying out that statutory obligation means that it is the institution’s duty to: 1) make itself aware of the nature of the student’s disability; 2) to explore alternative for accommodating the student; and 3) to exercise professional judgment in deciding whether the modifications under consideration would give the student the opportunity to complete the program without fundamentally or substantially modifying the school’s standards. It is only at that point in time when the school has done all of this, that a court defers to the institution’s academic decisions.
  3. The Fourth Circuit has said that courts should assiduously review the record in order to ensure that the educational institution has conscientiously carried out its statutory obligation to provide reasonable accommodation to persons with disabilities.
  4. The Third Circuit has said that when assessing a school’s judgment as to a student’s qualification for an academic program, a court should look at the following: 1) did the academic institution seek suitable means of reasonably accommodating student with a disability and submit a factual record of undertaking that obligation conscientiously; and 2) did that process lead the University to reach a rationally justifiable conclusion. The Third Circuit went on to say that courts may decline to respect a school’s judgment when the factual record shows that the school did not conscientiously consider all pertinent and appropriate information when making a decision.
  5. Here, the Board failed to produce a record undisputedly (emphasis in opinion), that the University conscientiously (emphasis in opinion), explored alternatives for accommodating Omar’s disabilities.
  6. Given the conflicting evidence in the record, reasonable jurors could conclude that Wayne State did not conscientiously explore alternatives for accommodating Omar’s disabilities because evidence exists that the University effectively shut down her primary request without adequate consideration of her specific disabilities and needs. For example, among other things, the student disability services director testified that disability services never actually evaluated whether Omar’s requests were reasonable in light of her disabilities, but instead denied remote learning and a research assistant as unreasonable and inappropriate accommodations for the law school (emphasis in opinion). On the other hand, evidence does exist that an interactive process did occur, at least to some extent. Accordingly, it is up to the jury to evaluate the weight and credibility of the conflicting evidence.
  7. Despite purported distinction between fully remote classes and a single student attending remotely, in the post Covid-19 world and given Wayne State’s past and continuing experiences with remote learning, whether Omar’s request amounted to a fundamental alteration of law school program is a factual question for the jury.
  8. A question of fact exists whether Omar wanted to attend clinics and other non-lecture programming in person.
  9. It is undisputed that Wayne State’s law school was fully remote for all student beginning in 2020 during the Covid-19 pandemic, during which time it continued charging full tuition throughout that time, and the law school returned to traditional in person learning before Omar was accepted for the fall of 2023.
  10. A Dean of the law school testified that law schools across the country were fully remote during the Covid-19 pandemic with no fundamental impact on Socratic teaching.
  11. The head of disability services testified that law students have been granted temporary remote learning in the past in order to accommodate things like a broken leg or recovery from surgery. The record also shows that the law school continued to allow remote learning for all students during bad weather, and it raises at least a factual dispute concerning whether the law school still provide students a remote option for select classes like first year legal research and writing, where students have the option to enroll in either a fully remote or fully in person version of the same course.
  12. Construing the evidence in Omar’s favor, reasonable jurors could conclude that the proposed factual distinction between an entire class being remote and only a single student being remote is without merit. In particular, the law school still uses remote learning and (emphasis in opinion), and has also previously granted temporary accommodations to allow single student to participate remotely. So, all of this supports the conclusion that Omar could do the same without fundamentally altering her legal education.
  13. Practical experience also leads to the same conclusion that remote learning for Omar would not fundamentally alter her legal education. In a post Covid-19 world, technology is readily available to facilitate hybrid arrangements with only select participants being remote. While there would be practical drawbacks to such an arrangement, that is not the same thing as saying those drawbacks necessarily amount to a fundamental alteration of the law school’s Socratic teaching under the facts of the case (particularly when no one disputes that all student participating remotely during Covid-19 pandemic did not affect the fundamental nature of the program), and therefore, is a question for the jury to decide.

 

V

Court’s Reasoning Discussing Whether Omar Was Qualified/Otherwise Qualified

 

  1. To be otherwise qualified, Omar bears the burden of showing that she meets the essential eligibility requirements for participation in the program with or without reasonable modification to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services.
  2. Since qualified/otherwise qualified depends on whether some reasonable accommodation is available to satisfy the legitimate interests of both Omar and the University, the concept of otherwise qualified/qualified and reasonable accommodation merge.
  3. One element of the otherwise qualified/qualified reasonable accommodation analysis is whether an accommodation is necessary.
  4. The concept of necessity requires at a minimum showing that the desired accommodation will affirmatively enhance a person with a disability’s quality of life by ameliorating the effects of the disability. In other words, there must be a direct nexus or a direct correlation between the plaintiff’s disability and the barrier to his or her [or they] equal access to the program or benefit at issue.
  5. Omar has repeatedly succeeded academically when given consistent accommodations and is now successfully completing a master’s program at the University of Oklahoma.
  6. A question of fact exists whether Omar would generally be able to meet the law school’s requirements with reasonable accommodations. In particular: 1) she successfully completed her undergraduate degree despite significant limitations from her blindness and even after being diagnosed with anxiety and depression; 2) she is currently on track to earn a graduate degree from the University of Oklahoma; 3) the law school actively recruited Omar and encouraged her to reapply, demonstrating at least an initial belief that she was qualified for the program; 4) Omar sought modifications to the law school’s policies and practices that she believed considering her multiple disabilities would reasonably level the playing field; 5) Omar presumably could still fully engage with Socratic questions involving general subject matter or theoretical issues that do not involve a visual reference; 6) Omar said that she would be willing to demonstrate proficiency in legal citation, but just wanted assistance with longer writing assignment to alleviate eye fatigue from her blindness, among similar concerns; 7) Wayne State said when it formally denied her remote learning requests, that they could modify cold calling practices in the classroom and would also be able to assist with securing specialized writing support in order to address her need for research assistant. Accordingly, Omar meets the minimum showing to establish necessity.
  7. Omar testified extensively how her disabilities interact and affect her life and that testimony mirrored her recorded discussion with student disability services. She also testified how past accommodations, similar to those what she requested of Wayne State, allowed her to overcome the barrier created by her disabilities and how those barriers would be alleviated if she could participate in the law school with her accommodations. She told disability services the same thing.
  8. Recently revised accreditation policy from the American Bar Association waived the distance education credit limit with respect to remote participation in an in person course if allowed as an accommodation under the ADA. Therefore, ABA policy contemplates remote learning as a potential reasonable accommodation in at least some circumstances.
  9. The University never considered whether they could accommodate Omar’s needs with partially remote learning.

 

VI

Court’s Discussion of Why the Interactive Process Claim Fails

 

  1. Omar can only sustain a claim for failure to participate in the interactive process if Wayne State did not show good faith.
  2. Evidence of good faith arises when the school provides alternative accommodations in response to a student’s request or readily meets with the student to discuss the request.
  3. The record at most demonstrate an honest misunderstanding as to the nature of Omar’s request, which she even seemingly acknowledged as much in her briefing.
  4. While the reasonableness of the requested an alternative accommodations are a matter for a jury, the record is clear that the University acted in good faith. In particular: 1) Wayne State readily met with her numerous times during an almost 3 month period to discuss her needs and requested accommodations; and 2) Wayne State offered alternative accommodations in response to Omar’s request. Accordingly, the failure to engage in the interactive process claim fails as a matter of law.
  5. The record is clear that Omar can establish for a variety of reasons that she was not the one that disengaged from the interactive process. In short, she has plenty of evidence to show that she was faced with the choice of starting law school set up to fail or abandoning law school entirely.

 

VII

Court’s Reasoning That Sovereign Immunity Applies and Therefore Omar Is Not Entitled to Monetary Damages or Retrospective Relief

 

  1. Since the claims do not rise to the level of a constitutional violation, Wayne State is entitled to sovereign immunity and Omar is precluded from monetary damages or retrospective relief.

 

VIII

Thoughts/Takeaways

 

  1. The interactive process is actually a Title I construct. It can be very difficult to find cases applying that construct to Title II or III, though it can be done. It is not unusual to find cases applying the interactive process construct to educational institutions, but much harder to find such application of the interactive process outside of the education environment. Even so, this case is a ringing endorsement that universities have the obligation to engage in an interactive process with a student making a reasonable accommodation request.
  2. Remote learning may be a reasonable accommodation in certain circumstances.
  3. The court sets a not small standard for when it will defer to a university’s decision regarding a denial of accommodations or a student with a disability. In particular: 1) it have to make itself aware of the nature of the student’s disability; 2) has to engage in the interactive process and explore alternatives; and 3) have to exercise professional judgment in the fundamental alteration analysis. With respect to professional judgment, there is a way to go about that as we discussed in this blog entry, here.
  4. Before giving deference to a university, this court is looking for indications that the University conscientiously considered all pertinent and appropriate information when making their decision. Further, it must be undisputed in the record that the University acted conscientiously.
  5. Technology has fundamentally changed education and that is happening at lightning speed. It is not unusual now for even residential colleges to offer classes both remotely and in person. I know the college that my daughter attends certainly does that. As a former teacher of paralegals full-time for 12 years, I can remember the day when a manual library was required. Those days are gone. Even the ABA does not require up-to-date manual law libraries for paralegal programs anymore. AI is also changing rapidly how people learn.
  6. When I was teaching people how to be paralegals, my style was definitely very Socratic. I actually did teach a class where some were in the classroom and some were remote. The technology was in early days and so it wasn’t easy to do. I am sure that it is much easier to do nowadays with technology.
  7. Also, when I was teaching paralegals, I did a lot of advising with respect to helping students decide on whether they should go to a law school and how they might decide going about it. For choosing the best law school for a particular individual, the key is, except for very few individuals, making sure that the student is a big fish in a small pond and ignoring what the chances of getting in might be. The big fish small pond also creates more opportunities for making law school cheaper and I am personally convinced, though it is anecdotal on my part, that it is easier for a student to get accommodations for their disability if they are likely to be a big fish in a small pond. All of the data needed for deciding whether you are going to be a big fish in a small pond can be found at the ABA-LSAC website grade calculator. A huge red flag for me in this case was the discussion of Wayne State suggesting that she get her LSAT score up. That suggestion indicates to me that she will not be a big fish in a small pond at Wayne State. With AI changing how law will be practiced and probably narrowing the opportunities for junior lawyers, big fish in a small pond becomes even more important nowadays.
  8. Remember the do’s and don’ts of the interactive process, which we discussed here.
  9. Qualified is the term for the ADA and “otherwise qualified,” is the term for the Rehabilitation Act. The terms mean the same thing.
  10. The court’s decision makes clear that it is the disability being accommodated and not the program or activity.
  11. You can simultaneously have a failure to accommodate claim go forward but a failure of the interactive process claim be denied. Keep in mind, that for this to be true, the failure to engage in the interactive process and the failure to accommodate must be separate causes of action, which isn’t the case in every jurisdiction. So, be sure to check your jurisdiction on whether there are separate claims for failure to accommodate and for failing to engage in the interactive process.
  12. I don’t follow the court’s discussion of why sovereign immunity applies because it doesn’t go through all the steps. The way the steps have to go per the Supreme Court decision referenced by the Omar court is as follows: 1) is there a possible ADA violation; 2) does the ADA violation rise to the level of a constitutional violation; and 3) if the violation does not rise to a constitutional violation, is the ADA statutory scheme a proportional response to the harm meant to be redressed. For whatever reason, this court did not address prong 3 and it should have done so. One wonders if that will not be appealed. I have come across 11th Circuit decisions holding that Title II is a proportional response to the harm meant to be redressed with respect to public places of higher education. Also, there is a whole line of cases (fair to say that it is the majority view), saying that receipt of federal funds-i.e. coverage under the Rehabilitation Act-waives sovereign immunity. I don’t know why the court did not address that point as the ADA and the Rehabilitation Act are interpreted in the same way.
  13. The very first law school I got into was the University of Toledo, though I opted for the University of San Diego for my first law degree.
  14. The court uses the term, “level the playing field,” which is essentially the same concept of a starting line, which we discussed here.

Congratulation to University of Connecticut for a tremendous win yesterday. Their coach now with a record 12 NCAA Division I titles. He already had most number of victories for a coach at the Division I level in basketball. Tonight, is the men’s final with Florida v. Houston.

 

Turning to the blog entry of the day, we look at the case of Nawara v. Cook County, here. The case asked the question whether backpay is an allowable remedy for a violation of the ADA that does not require a plaintiff to have a disability. As usual, the blog entry is divided in the categories and they are: facts; court’s reasoning that plaintiff can receive back pay for violations of the medical examination/disability related inquiries scheme regardless of whether plaintiff has a disability; court’s reasoning that the trial court was right to restore plaintiff’s seniority; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts (taken directly from the opinion)

 

John Nawara joined the Cook County Sheriff’s Office in 1998. He was working as a correctional officer in 2016 when he had a series of heated altercations with his superior officer, Superintendent Karen Jones-Hayes. Several weeks later, he engaged in another contentious interaction with Rebecca Reierson, a human resources manager, and Winifred Shelby, an occupational health nurse. As a result, Reierson and Shelby required Nawara to undergo a fitness-for-duty examination before returning to work, and the Sheriff placed Nawara on paid leave.

To initiate the examination process, Shelby instructed Nawara to submit two signed medical information authorization forms—one allowing medical providers to send his information to the examination company, and the other permitting the Sheriff’s Office to collect his information from medical providers to send to the company expediting the process. Despite repeated requests, Nawara refused to submit the executed forms, and the process stalled.

Nawara’s paid leave ended on April 25, 2017, and he was placed on unpaid leave, during which he worked other jobs. Nawara eventually decided to return to the Sheriff’s Office and provided the authorization forms in August 2017. After undergoing the fitness-for-duty examination, he was declared fit for duty and returned to work as a correctional officer on September 26, 2017. In September 2019, Nawara became a Cook County Sheriff’s police officer.

While on leave, Nawara filed this lawsuit, alleging that the Sheriff’s actions violated 42 U.S.C. § 12112(d)(4). After a trial, the jury agreed with Nawara that the examination requirement and related requests for medical records violated § 12112(d)(4)(A). That provision prohibits an employer from requiring a medical examination or inquiring about an employee’s disability status unless it is job-related and consistent with business necessity. 42 U.S.C. § 12112(d)(4)(A). The jury, however, awarded no damages.

Nawara then filed a post-trial motion requesting equitable relief in the form of back pay and the restoration of his seniority. After reviewing the pertinent statutory provisions, the district court determined that a plaintiff, like Nawara, must have a disability or perceived disability for a violation of § 12112(d)(4) to constitute discrimination on account of disability. Nawara v. County of Cook, 570 F. Supp. 3d 594, 600-01 (N.D. Ill. 2021). And because the remedy provision applicable here, 42 U.S.C. § 2000e-5, bars a court from awarding back pay where an employee suffers an adverse employment action “for any reason other than discrimination” on account of disability, the court denied Nawara’s request and entered judgment accordingly. Id. (citing 42 U.S.C. § 2000e-5(g)(2)(A)). The court also declined to issue an order restoring his vacation days, holidays, sick days, and seniority.

Nawara subsequently moved to amend the judgment under Fed. R. Civ. P. 59(e), arguing that the district court had failed to fully evaluate his request for the restoration of his seniority. Upon closer examination, the district court agreed and granted Nawara’s request to restore his seniority based on the Supreme Court’s allowance of such relief in Franks v. Bowman Transportation Co., 424 U.S. 747, 770 (1976). See Nawara v. County of Cook, No. 17 C 2393, 2022 WL 3161805, at *2 (N.D. Ill. Feb. 15, 2022), corrected, 2022 WL 3161838 (N.D. Ill. July 29, 2022).

At that point, the Sheriff moved to amend the judgment restoring Nawara’s seniority. According to the Sheriff, the court had ignored a prior stipulation stating that seniority would be restored to Nawara “if the Court awards back pay.” In the Sheriff’s view, because the district court denied back pay, Nawara was not entitled to his seniority. The district court, however, disagreed and denied the Sheriff’s motion. Nawara, 2022 WL 3161838, at *3. Both sides appealed the district court’s rulings.

II

Court’s Reasoning That Plaintiff Can Receive Backpay for Violations of the Medical Examination/Disability Related Inquiries Scheme Regardless of Whether Plaintiff Has a Disability

 

  1. 42 U.S.C. §12112 provides that no covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedure, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
  2. 42 U.S.C. §12112(d) prohibits medical examinations and disability related inquiries of employees as to whether such an employee is an individual with the disability or as to the nature or severity of the disability (emphasis in opinion), unless such examination or inquiry is shown to be job-related and consistent with business necessity.
  3. You do not have to be a person with a disability or even perceived as having a disability in order to be covered by the medical examination and disability related inquiry provisions.
  4. 42 U.S.C. §12112(a) prohibits discrimination on the basis of disability with respect to the terms, conditions, and privileges of employment. 42 U.S.C. §12117(a) incorporates 42 U.S.C. §2000e-5 in its entirety. §2000e-5(g) of title VII of the Civil Rights addresses the availability of back pay. §2000e-5(g)(1) says that a court may order affirmative action as appropriate including but not limited to reinstatement or hiring of employees with or without backpay or other equitable relief as appropriate. However, the next subsection, §2000e-5(g)(2), says that backpay is not available if the individual was suspended or discharged for any reason other than discrimination (emphasis in opinion), on account of race, color, religion, sex, or national origin. Therefore, the most natural reading of §12117(a) requires adding discrimination on account of disability when considering remedies while leaving the remainder of §12117 intact.
  5. Congress enacted the ADA to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.
  6. 12112(a) prohibits discrimination on the basis of disability with respect to terms, condition, and privileges of employment. §12112(d)(1) explains that the prohibition against discrimination includes medical examination and inquiries. It doesn’t make sense that these two provisions apply only to disabled individuals for two reasons. First, such a reading renders §12112(d)(1) an unnecessary add-on because a medical examination and inquiry will always be a job application procedure or a term or condition of employment. Second, incorporating §12112(d) wholesale into §12112(a) is an odd fit because that would require the ADA claimant to have a disability or perceived disability while the former permits an individual to file a claim even though he may not. In other words, it makes little sense to require an employee to demonstrate that he has a disability to prevent his employer from inquiring as to whether or not he has a disability.
  7. The better construction of §12112(d)(1) involves employing the nearest reasonable referent canon of construction, which means that §12112(a)’s prohibition on discriminating against a qualified individual on the basis of disability includes §12112(d)’s prohibition on requiring a medical examination or inquiry.
  8. Other provisions of the ADA do not require a disability to allow someone to recover for violating the ADA. For example, the ADA also prohibits discrimination against those associating with a person with a disability regardless of whether that person has a disability.
  9. Read together, §12112(a) and §12112(d)(1) define a violation of §12112(d)(4)(A) to constitute discrimination on the basis of disability under §12112(a). Accordingly, 12117(d) authorizes the plaintiff to recover backpay for the ADA violation.

 

III

Court’s Reasoning That the Trial Court Was Right to Restore Plaintiff’s Seniority

 

  1. The Cook County Sheriff made no attempt to show that increasing plaintiff’s seniority would be useless to him as a police officer in the Sheriff’s office, a fact which is fatal to the Sheriff’s position.
  2. The collective bargaining agreement in the Sheriff’s office suggests that the plaintiff could benefit from the restoration of the seniority in his current employment.

 

IV

Thoughts/Takeaways

 

  1. When I talked to Khorri Atkinson of Bloomberg about this case (he was the one that brought this case to my attention), he mentioned to me that the defense side was looking at certain cases to see if the court’s argument could be countered. However, those cases suffer from some serious problems. First, they are all prior to the amendments to the ADA. Second, the concept of adverse action, as we discussed here, is rapidly evolving.
  2. It is important to note that an employer that properly goes about the disability related inquiries and medical examinations scheme does not activate the regarded as prong of the ADA.
  3. The opinion is published.
  4. The opinion is well reasoned. As such, one has to wonder how the Supreme Court would decide this issue even given its current configuration. It will also be interesting to see how other circuits deal with this issue in light of a published opinion from a circuit that isn’t necessarily well-known for being disability centric. It is certainly possible that a circuit court split could occur down the road.
  5. We discussed the medical examination and disability related inquiry scheme many times before, such as but not limited to here. This case illustrates how it is important to thoroughly understand that scheme. Training (a large part of my practice), by ADA knowledgeable individuals is always super important.
  6. You don’t have to have a disability to benefit from certain provisions of the ADA, such as the medical examination and disability related inquiry scheme. Being discriminated against because you associate with a person with a disability is another example.
  7. Violation of any provisions of Title I gets you the remedies afforded by Title I regardless of how a person gets covered under the ADA.
  8. As a preventive law matter, it is helpful to have persons with disabilities involved in the process of analyzing when medical exams and disability related inquiries should be requested and what those exams and/or disability related inquiries are because of the frequency that people with disabilities have to deal with the issue.