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

 

I

Facts

 

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

 

II

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

 

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

 

III

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

 

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

 

IV

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

 

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

 

V

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

 

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

 

VI

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

 

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

 

VII

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

 

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

 

VIII

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

 

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

 

IX

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

 

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

 

X

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

 

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

 

XI

Thoughts/Takeaways

 

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

 

 

 

 

 

 

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

 

I

HUD withdrawal of the circulars involving ESA and SA’s

 

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

 

II

Memorandum Opinion For the Acting Chair, EEOC

 

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

 

III

Thoughts/Takeaways

 

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

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

 

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

 

I

Facts (greatly condensed).

 

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

 

II

Key Points Revealed through Trial

 

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

 

III

Court’s View of Compensatory Damages

 

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

 

IV

Court’s View of Punitive Damages

 

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

 

V

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

 

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

 

VI

Thoughts/Takeaways

 

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

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

 

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

 

I

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

 

 

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

 

II

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

 

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

 

III

Court’s Reasoning Denying Summary Judgment for the Retaliation Claim

 

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

 

IV

Thoughts/Takeaways

 

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

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

 

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

 

I

Key Facts (taken from the opinion itself)

 

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

 

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

 

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

 

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

 

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

 

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

 

 

II

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

 

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

 

III

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

 

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

 

IV

Miscellaneous Matters and Rebutting the Dissent/Dissent

 

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

 

 

IV

Thoughts/Takeaways

 

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

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

 

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

 

I

Majority Opinion (J. Brennan)

 

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

 

II

Dissenting Opinion (J. Rovner)

 

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

 

III

Thoughts/Takeaways

 

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

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

 

 

I

Facts

 

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

 

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

 

 

II

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

 

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

 

 

III

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

 

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

 

IV

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

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

 

 

V

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

 

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

 

VI

Judge Tjoflat Concurring Opinion

 

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

 

VII

Judge Jordan Concurring and Dissenting Opinion

 

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

 

 

 

 

 

VIII

Thoughts/Takeaways

 

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

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

 

I

Mullane

 

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

 

II

Importance of Mullane to the Disability Universe

 

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

 

IIII

Gray And Its Importance to the Disability Universe

 

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

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

 

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

 

I

Meza Facts

 

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

 

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

 

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

 

II

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

 

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

 

III

Meza Thoughts/Takeaways

 

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

 

IV

Scheer Facts

 

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

 

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

 

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

 

V

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

 

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

 

VI

Scheer Takeaways.

 

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

Stay cool and safe!!!!!!

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

 

I

Facts

 

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

 

II

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

 

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

 

III

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

 

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

 

IV

Thoughts/Takeaways

 

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

 

Stay cool everyone!!