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Even if you are not a huge soccer fan, the World Cup has been fascinating to watch. Good luck to whatever team you are rooting for.

 

It is just about the end of the Supreme Court term, so we can expect a flurry of decisions to come down in the next couple of weeks. They have just come down with two decisions affecting people with disabilities or have fact patterns concerning people with disabilities. This week’s blog entry will talk about  T.M. v. University of Maryland Medical System Corporation, here, holding that Rooker-Feldman is here to stay. It was a 5-4 decision but not based on ideological lines. In the majority were Justice Sotomayor, Justice Thomas, Justice Alito, Justice Kavanagh, and Justice Jackson. In dissent were Justice Barrett, Chief Justice Roberts, Justice Kagan, and Justice Gorsuch. We will also discuss what this decision might mean for persons with disabilities facing discrimination on the basis of their disability in state courts (I get phone calls once a month from around the country on that particular issue. The calls generally pertain to family courts but not always). As usual the blog entry is divided into categories, and they are: the situation; the majority view (Justice Sotomayor writing for the majority), as to why Rooker-Feldman applies to a case where state appeals have yet to be exhausted; Justice Thomas concurring opinion as to why the Rooker-Feldman doctrine makes sense; Justice Barrett writing for the dissenters on why Rooker-Feldman should be a narrowly focused doctrine and not extended; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the sections.

 

I

The Situation

 

Petitioner T. M. alleges she has a medical condition that causes changes in her mental status, including psychosis, when she ingests gluten. In March 2023, T. M. accidentally ingested gluten and was taken to the emergency room at Baltimore Washington Medical Center, where, after an administrative hearing and over her and her father’s objections, she was involuntarily committed for about three months. During her stay, T. M.’s treating psychiatrist and the medical center obtained an order authorizing the facility to forcibly inject T. M. with antipsychotic medication. These events prompted a flurry of litigation, with T. M. and her parents filing several state and federal lawsuits seeking T. M.’s release and to avoid the forced injections. T. M. and respondents negotiated a settlement agreement to facilitate T. M.’s discharge, and the state judge presiding over T. M.’s state habeas petition entered the agreement as a consent order on June 12, 2023. The consent order provided for T. M.’s immediate release subject to several conditions, including that T. M. obtain a new treating psychiatrist, continue taking her prescribed medications, and dismiss with prejudice all pending actions against respondents. Ten days after the state court entered the consent order, T. M. and her parents obtained new counsel and sued respondents in Federal District Court for the District of Maryland, seeking a declaration that the consent order violated T. M.’s federal and state due-process rights, a declaration that the order was obtained under duress, and an injunction preventing its enforcement. Meanwhile, T. M. appealed the consent order to the Appellate Court of Maryland and raised similar arguments. T. M. later successfully moved to stay the state-court appeal to prevent inconsistent rulings. The District Court dismissed the complaint on its own motion for lack of subject matter jurisdiction under the Rooker-Feldman doctrine. The Fourth Circuit affirmed, rejecting T. M.’s argument that Rooker-Feldman applies only to judgments that are final judgments from the highest court of a State in which the decision could be obtained.

 

II

The Majority View (Justice Sotomayor Writing for the Majority), as to Why Rooker-Feldman Applies to a Case Where State Appeals Have yet to Be Exhausted

 

  1. 28 U.S.C. §1331 gives Federal District Court’s original jurisdiction of all civil actions raising federal questions.
  2. The Supreme Court is the only federal court with appellate jurisdiction to review state-court judgments and that jurisdiction extends only to final judgments or decrees decided by the highest court of a State in which a decision could be obtained.
  3. The Supreme Court has previously held in Rooker that entertaining a suit to reverse or modify a judgment of a State highest court to declare it null and void would be an exercise of appellate jurisdiction. Accordingly, if such a decision is wrong, the decision cannot be made void but can be left open to reversal or modification in an appropriate and timely appellate proceeding.
  4. In Feldman, plaintiff had challenged as unconstitutional a court rule requiring District of Columbia bar applicants to have graduated from an approved law school and sought a waiver of that rule. The Supreme Court held that the Federal District Court had no jurisdiction to review the District of Columbia’s high court’s denial of plaintiff’s waiver petitions. However, it did possess jurisdiction to adjudicate the validity of the rule itself because the District Court was not reviewing a state court judicial decision.
  5. Rooker and Feldman are based upon two closely related thoughts of reasoning. First, when a party essentially invites federal courts to review and reverse unfavorable state court judgments, they are seeking an exercise of appellate jurisdiction. Second, appellate jurisdiction to reverse or modify a state-court judgment it lies exclusively in the Supreme Court.
  6. While the Supreme Court has refused to expand Rooker-Feldman over the years, it has repeatedly reaffirmed the rule’s existence.
  7. Rooker-Feldman is confined to cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the commencement of District Court proceedings and inviting District Court review and rejection of those judgments.
  8. Petitioner is complaining of injuries and seeking relief from the state-court judgment itself by arguing that the consent order violated federal and state due process rights and was entered into under duress. In short, petitioner does not like the result reached in state court and repaired to federal court to undo the state judgment in her favor.
  9. In a footnote, the majority noted that petitioner contended that she was not a state-court loser and that her suit was really about injuries inflicted by the medical center rather than the consent order. However, the Fourth Circuit rejected those arguments and petitioner did not raise them at the Supreme Court.
  10. In Rooker, nothing in the opinion suggested that the case would have been decided differently if the judgment has still been on appeal.
  11. Allowing federal district courts to review state-court judgments while they are on appeal in the state-court system would undermine the cooperation and comity on which the federal system is built.
  12. It is difficult to see why Congress would authorize district courts to review final state-court judgments pending appeal in state court when it did not authorize the Supreme Court to do so.
  13. Abstention and preclusion doctrines preventing federal courts from interfering with state proceedings to bar parties from relitigating issues already decided might not apply to a case like this one where a person complains of injuries stemming directly from a state-court judgment.
  14. Federalism principles are best served by continuing to apply Rooker-Feldman where plaintiff seeks review of state-court judgments regardless of whether the judgments are final trial-court judgments of those of a State’s highest court.
  15. In a footnote, the Supreme Court noted that there were two other federal action filed by the petitioner that were not dismissed under Rooker-Feldman. The first was a due process suit that petitioner voluntarily dismissed but would not have been barred by Rooker-Feldman because it was commenced before the consent order was entered. The second was a federal discrimination suit, which was dismissed on the merits and did not implicate Rooker-Feldman because the suit did not seek review and rejection of the consent order even though it was about the same parties and facts.
  16. The question of whether Rooker-Feldman was wrongfully decided and should be narrowed whenever possible if not overruled was not part of the questions presented and not pressed by the parties when they asked the Supreme Court to hear the case.

 

III

Justice Thomas Concurring Opinion as to Why the Rooker-Feldman Doctrine Makes Sense

 

  1. Rooker-Feldman at its core holds the party losing in state trial court’s do not get to appeal to a federal court. Instead, they take their appeal to a state appeals court and, if a federal statute allows, ultimately can seek review in the Supreme Court.
  2. The power to revise or modify another court’s judgment or decree has been recognized as an exercise of appellate jurisdiction from before the ratification of the Constitution.
  3. In the typical appeal situation, the remedy consist in correcting the judicial action through reversal or vacatur of the challenged judgment and not in awarding damages.
  4. The Federalists thought that the term appellate jurisdiction in the proposed Constitution referred to nothing more than the power of one tribunal to review the proceedings of another either at to the law or fact or both. Both the Federalists and the anti-Federalist worried about appeals involving the power to re-examine the whole merits of a previously initiated case, including review of facts.
  5. Whether jurisdiction is appellate does not turn on the specific mode of the preceding, but rather on the nature of the relief sought.
  6. Marbury v. Madison’s holding led to the clear principal that when a court revises or correct the proceedings in a case already instituted, it exercises appellate jurisdiction. When there is no previous cause or judicial proceeding to revise, and exercise its original jurisdiction.
  7. Federal courts must inquire into the nature of the jurisdiction a party seeks to invoke and whether it takes an appellate form regardless of the label placed on the paper filed in the court.
  8. Where a party asked one court to revise the judgment of another court for errors of law, it invokes appellate jurisdiction.
  9. Congress has long given only the Supreme Court and not inferior courts appellate jurisdiction to revise state-court judgments.
  10. Since the founding, there has been no doubt that inferior federal courts have the power to review the proceedings of State courts only where Congress in their discretion given them appellate jurisdiction to do so. For that to be the case, there has to be a statutory grant of revising power over state-court judgments before inferior courts can revise them. No such power has ever been given by Congress.
  11. In the Judiciary Act of 1789, Congress gave no other federal court revising power over courts of the several states except to the Supreme Court. For that matter, it gave no other federal court civil federal question jurisdiction either.
  12. It took Congress 86 years after the Judiciary Act to get federal district courts federal-question jurisdiction, but then it limited that jurisdiction to original actions only. That legislation did not give inferior federal courts the power to enjoin the judgment of a State court.

 

IV

Justice Barrett writing for the dissenters on why Rooker-Feldman should be a narrowly focused doctrine and not extended.

 

  1. The majority opinion expands Rooker-Feldman.
  2. Until this decision, the Supreme Court has applied Rooker-Feldman doctrine only twice and for good reason because Rooker-Feldman stands on shaky ground to begin with.
  3. The majority mixes up the distinction between a collateral attack and an appeal as they are not the same thing in several ways: 1) an appeal removes the record into the supervising tribunal where a collateral attack does not; 2) on appeal, new evidence is generally unwelcomed but in a collateral attack, new evidence is fair game; 3) in an appeal, the Supreme Court is not barred from considering an issue just because the State high court has already decided it as that is the whole point of the appeal in the first place. However, in a collateral attack, preclusion restrains district courts from simply redoing the state court’s work; and 4) while the Supreme Court can vacate or reverse the judgment of a state high court and remand for further proceedings, a district court entertaining a collateral attack cannot.
  4. References in the majority opinion 28 U.S.C. §1331 cannot explain why Rooker-Feldman has always been limited to collateral attacks on state-court judgments. After all, if entertaining a collateral attack goes beyond original jurisdiction, then it should not matter whether the underlying judgment is from a state court or a federal one. However, it does matter because it is well-settled that district courts can entertain collateral attacks on federal (emphasis in opinion), judgments in order to prevent a grave miscarriage of justice.
  5. Rooker-Feldman’s creates tension with statute granting District Court jurisdiction in categorical terms. For example, §1331 gives district courts original jurisdiction over all civil action presenting a federal question and not just to all civil action presenting a federal question minus those attacking a state-court judgment. Other jurisdictional grants are similar, such as what is contained in 28 U.S.C. §1332.
  6. Rooker-Feldman misses the point of the full faith and credit clause, which provides that judicial proceedings of any court of any state has the same full faith and credit and every court within the United States.
  7. It is unclear what Rooker-Feldman bring to the table. Preclusion doctrines already bar parties from relitigating issues and claims decided in state court. When state litigation is ongoing, various abstention doctrines prevent federal courts from getting involved.
  8. Since Rooker-Feldman is jurisdictional (emphasis in opinion), it has to be analyzed even where no one raises it. Also, since Rooker-Feldman lacks both a clear role and a clear rationale, it is hard to manage the doctrine. After Feldman, the doctrine became the primary docket clearing workhorse for the federal courts. That is, federal courts found one claim after another closely intertwined with claims raised, resolved, and sometimes still pending in the state courts.
  9. As a result of the abuses of Rooker-Feldman, the Supreme Court in another case confined the doctrine to the procedural circumstances of the Rooker and Feldman cases, which is not the situation in this case. That case portrays Rooker-Feldman as a negative inference from §1257 that overrides (emphasis in opinion), §1331. In both Rooker and Feldman, the losing party sued in federal court after the stay proceedings ended (emphasis in opinion). That distinction makes all the difference in this case.
  10. The majority opinion yields strange outcomes. For example, the doctrine only applies to state court judgments, but it does not bar the district court from reviewing state court interlocutory orders. It’s hard to understand why Congress would authorize district court review of interlocutory orders subject to further review in state court when it did not authorize the Supreme Court to do so.
  11. The majority opinion reliance on federalism sits uneasily with the fact that the lawsuit arises under 42 U.S.C. §1983, which is a product of the vast transformation from traditional concepts of federalism. The very purpose of §1983 is to put the federal courts between the States and the people, as guardians of the people’s federal rights, protect the people from unconstitutional action under color of state law, whether it be executive, legislative, or judicial. So, it is strange to cite federalism as grounds for dismissing a §1983 suit.
  12. Although the majority opinion expands Rooker-Feldman beyond previous lines, it repeatedly emphasizes that the doctrine is narrow. Courts down the line should not lose sight of that message. In the end, even though Rooker-Feldman has been given an inch, should not be allowed to take a mile.

 

V

Thoughts/Takeaways

  1. I get calls at least once a month about state courts discriminating in their proceedings against persons with disabilities by refusing to modify their policies, practices, and procedures per Title II of the ADA, 28 C.F.R. §130(b)(7) in order to accommodate a person with a disability. As we have discussed, here for example, there are a variety of defenses that such an individual has to get through to take on a state court system. Also, attorneys are reluctant to take on such suits because it might lead to further trouble for that attorney, such as referral to bar authorities in retaliation for bringing such a suit (I’ve actually seen that happen).
  2. Does this case add another obstacle for a plaintiff seeking to address discrimination by a state court? An argument can be made that it does not do any such thing. First,  footnote 10 of the majority opinion notes that the federal discrimination suit was dismissed on the merits and did not implicate Rooker-Feldman  because the suit did not seek review and rejection of the consent order even though would involve the same parties and facts. The argument would go that a failure to accommodate/disability discrimination suit would not be seeking overruling of the decision itself but rather of how the decision came to be and also the damages (per Justice Thomas), resulting from same, which is an entirely different ball of wax.
  3. A separate questions is whether a state court not modifying its practices, policies, and procedures in order to reasonably accommodate a person with a disability would be a §1983 suit for a Title II suit. Certainly, the judge is acting under color of state law. However, there have been cases that have said that you cannot dress up in ADA suit as a §1983 suit when the ADA applies.
  4. Discrimination in federal courts is another matter entirely. If the federal judge is part of an executive agency, the judge is subject to §504 of the Rehabilitation Act, the law the ADA is based upon. However, if the federal judge is not part of an executive agency, that judge is free to do whatever they want if no Administrative Office of the Courts rules apply. When it comes to persons with disabilities, the Administrative Office of the Courts rules today are few and far between. The rules that do exist focus on the hearing loss community and is silent on other disabilities. I don’t know if the Administrative Office of the Courts rules will become any more comprehensive down the line.
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Before getting started on the blog entry for the week, a couple of housekeeping matters in order. First, you can now, if you so desire, listen to my blog instead of reading it even if you are not using a screen reader. I know many people would rather have what they see read to them rather than read it themselves (all you have to do is look at how podcasts are exploding). If you want to listen to one of our blog entries, all you have to do is click on the icon next to the, “listen to this post.” It is not my voice and the voice is a bit wooden, but nevertheless the blog entry can now be read out loud to you. The accent is that of an American male. I could have chosen male or female and UK or Australian. However, since I am an American male, I chose that. The other housekeeping matter is, I am headed out of town this week for the annual meeting of the Texas Bar Association taking place this year in Houston, and I will be speaking on the rapidly evolving world of service animals and emotional support animals in housing and employment. After attending the convention, I am going to get some R&R time with a buddy of mine who lives in Texas. So, I am not sure about a blog entry for the week of June 15.

 

This week’s blog entry is a bit different than our usual one, where I deconstruct a case and offer thoughts/takeaways, as it doesn’t pertain to a case at all. The saying goes the law abhors a vacuum. That is exactly what we have after the internal memorandum from HUD saying that emotional support animals in housing are no longer a thing. So, I thought it would make some sense if I could try to fill that vacuum with some ideas for how a landlord might proceed going forward in the absence of rulemaking. As usual, the blog entry is divided into categories, and they are: the Illinois Assistance Animal Integrity Act approach; what the DOJ approach might look like; what the EEOC approach might look like; and thoughts/takeaways. Of course, the reader is free to read any or all of the categories.

 

I

The Illinois Assistance Animal Integrity Act Approach

As of January 1, 2020, Illinois has had on its books the Assistance Animal Integrity Act, which we discussed here. That law in many ways codified HUD guidances that existed at the time on service animals and emotional support animals. It is possible that other states have enacted similar laws, though I haven’t looked into it as of yet. With regards to an approach for dealing with ESAs/SAs, an approach based upon the Illinois Assistance Animal Integrity Act might look like the following.

 

  1. The Illinois law applies to emotional support animal or a service animal qualifying as a reasonable accommodation under the FHA for the Illinois Human Rights Act. The issue here is that it is really debatable as to whether an ESA qualifies under the FHA. Certainly HUD no longer believes so. The very first case I found dealing with an ESA in housing was a Southern District of Ohio case, Overlook Mutual Holdings, Inc. v. Spencer, decided July 16, 2009, here, holding that ESAs were allowed in the housing if they were necessary for the person to enjoy the housing. However, that decision relied heavily on the HUD regulation for public housing, which is quite a bit different than the HUD regulation for private housing. Other cases allowing ESAs in housing either relied on Overlook or followed the HUD guidances. I would need to do further research to find out how the Illinois Human Rights Act deals with emotional support animals, if it deals with that issue at all.
  2. A housing provider may require a person to produce reliable documentation of the disability and the disability related need for the animal only if the disability or disability related need is not readily apparent or known to the housing provider.
  3. Housing providers may ask a person to make the request on a standardized form, but cannot deny the request if the person did not use the form to submit documentation that otherwise meets requirements of the Illinois Assistance Animal Integrity Act.
  4. If a housing provider receives a request for more than one assistance animal, it may request documentation establishing the disability related need for each animal unless the need for the animal is apparent.
  5. Any documentation that a person has a disability requiring the use of an assistance animal as a reasonable accommodation in housing must be: 1) in writing; 2) be made by a person with whom the person requesting the accommodation has a therapeutic relationship; and 3) describe the individual’s disability related need for the assistance animal.
  6. The request can be denied if any of the following exists: 1) an undue financial and administrative burden; 2) a fundamental alteration to the nature of the operations of the housing provider; 3) after conducting an individualized assessment, reliable objective evidence exists that the assistance animal either: A) poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation; B) causes substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation; or C) has engaged in a pattern of uncontrolled behavior that if the handler has not taken effective action to correct.
  7. If the initial documentation provided by the person requesting accommodations does not satisfy ¶ 5 above, the housing provider may require additional supporting documentation. Also, if the initial documentation is not sufficient to show the existence of the therapeutic relationship, the housing provider may request additional information describing the professional relationship between the person and the individual with the disability.
  8. A housing provider cannot deny an assistance animal solely due to the disability related needs of another resident. Instead, it has to attempt to balance the disability related needs of all residents.
  9. The housing provider cannot require documentation of a specific diagnosis regarding the disability or disability related need.

 

II

What The DOJ Approach Might Look like

The internal memorandum talks about how future rulemaking will “harmonize,” with the DOJ approach to service animals. What that means is anybody’s guess. I thought I would take a shot at it. As I read it, there are two options. First, the DOJ approach. Second, adopting the EEOC approach to reasonable accommodations (EEOC has no regulation dealing with animals in the workplace).

Here is what the DOJ approach might look like where the tenant requests the accommodation of an emotional support animal or a service animal:

  1. Where the tenant requests the accommodation of an emotional support animal, one approach might be to say automatically no to that request because HUD (consistent, in my opinion, with a reading of the law after the pulling of the guidances and Loper Bright), has said that ESAs are no longer a thing in housing. However, that approach is risky because case law exists saying that the FHA requires an interactive process.
  2. If it is not readily apparent that the animal is a service animal, go ahead and make the two inquiries permitted by the DOJ final implementing regulations. Those inquiries are: 1) is the animal required because of a disability; 2) what work or task has the animal been trained to perform. The work or task must relate to a disability. Narrowly focused follow-up questions pertaining to the two inquiries are permitted if the information is not sufficient. You can’t make these two inquiries if it is readily apparent what the animal does for the person with a disability.

 

III

What the EEOC Approach Might Look like

Adopting the Title I approach to reasonable accommodations in general can be justified because the FHA has a necessity requirement. So, the approach might look like the following:

  1. Where the connection between what the animal does and the person with a disability is not obvious, you can seek narrowly focused documentation to establish that connection. Fishing expeditions you want to stay away from. Documentation you might seek includes but is not limited to: 1) establishing the bona fides of the healthcare provider supporting the recommendation; 2) establishing the relationship between the provider making the recommendation and the tenant; and 3) you might also consider the provisions of the Illinois Assistance Animal Integrity Act, above, for other documentation you might request regardless of whether you are in Illinois.
  2. Keep in mind, it may be very difficult in some states to get a letter supporting a request for an emotional support animal or a service animal. See this blog entry.
  3. The landlord is not entitled to know the disability itself but rather that it disability exists and how the animal helps the person deal with that disability(s).
  4. Helpful to define service animal in the same way as the DOJ final Title II and Title III regulations.
  5. Unreasonable delay in granting an accommodation is actionable. See this blog entry.

 

IV

Thoughts/Takeaways

  1. I am not a big fan of guidances in general. Most of the time, I believe lawyers use guidances as a crutch. However, here we have a complete vacuum. Hopefully, this blog entry gives some ideas on how that vacuum might be solved until we have some rule-making.
  2. This vacuum may go on for quite a while as rulemaking can take quite a bit of time. Also, this administration has only two more years left on it, and who knows what the next administration might look like.
  3. I have absolutely no idea what “harmonizing with DOJ final regulations on service animals,” actually means. It would seem to me that the DOJ approach doesn’t really work for housing due to the nature of housing. Also, in the FHA world we are talking about whether it is necessary to enjoy the benefits of housing. So, it seems more likely that any rulemaking would likely resemble the EEOC general approach to reasonable accommodations.
  4. One thing we do know is that in housing allowable animals can be more than a dog. Such a read , even after The pulling of the guidances and Loper Bright, is consistent with the HUD final regulation on service animals in private housing, which lists a guide dog as but one example of what a service animal can be.
  5. The vacuum is real. Landlords are going to want to get with their legal counsel to discuss the various options and what might be the risks of going one way or the other. They also want to discuss just how aggressive their client should be when it comes to seeking out the information to decide whether the animal is necessary for the person with a disability to enjoy their housing. Of course, the more aggressive a housing provider is, the more likely a person with a disability is to push back, assuming they either have the economic resources to do so or can find an attorney to take on their case irrespective of those resources.
  6. Don’t forget about state law. State law (such as Illinois, CO, HA, among others), as they can be highly relevant as discussed above.
  7. It does seem to be an incredibly risky proposition for a couple of reasons to reflectively deny a request for an emotional support animal in housing even though that may no longer be a thing. First, you still have case law out there, even though I think it can be distinguished in light of recent developments, saying an emotional support animal is permitted under the FHA if it can be shown to be necessary for enjoying the housing. Second, case law does exist saying the FHA requires an interactive process.
  8. If the animal is acting as a service animal (trained to engage in recognition and response related to the person’s disability regardless of whether it is a dog or not), that person with the disability will have a much higher chance of getting that request approved than if it is an emotional support animal.
  9. It is a very fine line between emotional support animal and a psychiatric service animal. Expect a huge explosion of psychiatric service animal claims.
  10. For how might emotional support animal advocates these developments, an excellent piece was put out by the Disability Rights Education and Defense fund, here, and that certainly bears reading.
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This week’s blog entry focuses on an unpublished decision, Woodie v. Motorola Solutions, Inc. from the Sixth Circuit decided on March 10, 2025, here. The case highlights the importance of a person with a disability intentionally not pursuing any internal processes for requesting an accommodation. There is well reasoned dissent as well. As usual, the blog entry is divided into categories and they are: the situation; the employer did not have to provide a reasonable accommodation because the employee never asked for one; Judge Mathis concurrence and dissent focusing on why plaintiff did not have to ask for a reasonable accommodation through company’s internal processes, but would have had to engage in the interactive process; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

The Situation

Plaintiff began working for Motorola as a Federal Systems Technologist in 2013. His work was primarily done outside of the office at customer sites. Until March 1, 2020, he traveled about 75% of the time and sometimes had to work weekends. Beginning in March 2020, Motorola required him to travel 80% of the time. Plaintiff was unhappy with the additional travel and asked his supervisor on several occasion to return to the prior arrangement. In July 2019, plaintiff informed his immediate supervisor that he had nocturnal epilepsy. Plaintiff was then directed to the company’s Occupational Health Resources Department (OHR) in the event he needed any accommodations. His supervisor even offered to contact that department for the plaintiff. Plaintiff declined the suggestion but appreciated the offer.

In June 2020, plaintiff said he needed his schedule changed because of his health. A Human Resources Business Partner told the plaintiff he could always apply for reasonable accommodation if needed and gave him the company’s reasonable accommodation policy, which contained instructions on how to file a request. Once again, plaintiff declined, appreciating the offer but not wanting to be treated any differently but just fairly.

In November of 2020, plaintiff increasingly demanded a schedule change. He gave different reasons as to why the schedule change was needed, including his disability. His group leader then suggested he should direct any accommodation request to OHR. Plaintiff never requested an accommodation through OHR while employed at Motorola.

Throughout his work at Motorola, plaintiff’s supervisors counseled him on performance and behavioral issues to no avail. After no improvement in plaintiff’s behavior, Motorola terminated his employment and classified the termination in such a way as to leave open the possibility that he could be rehired. Plaintiff received an employment offer from another company the day after his termination and began work elsewhere one month later. Plaintiff during his deposition, admitted that his behavior at Motorola was unacceptable.

Plaintiff sued under the ADA and the Ohio Civil Rights Act for failure to provide reasonable accommodations, disability discrimination, and retaliation, and Motorola successfully moved for summary judgment. Plaintiff appealed.

II

The Employer Did Not Have to Provide A Reasonable Accommodation Because The Employee Never Asked for One

 

  1. The Sixth Circuit has consistently held that an employer is not obligated to provide an accommodation until the plaintiff has provided a proper diagnosis of her disability and requested a specific accommodation.
  2. Motorola was not required to provide an accommodation because plaintiff never requested one. In fact, many of plaintiff’s requests for a schedule change had nothing to do with his disability at all.
  3. While it is true that plaintiff did ask his supervisor for reduced travel schedule many times because of his disability, he never followed the internal reasonable accommodation policy to make any of that happen.
  4. On numerous occasions when plaintiff requested a travel change based on his disability, he was directed to OHR in the event he needed an accommodation. Motorola personnel even offered to contact OHR on his behalf, which plaintiff declined.
  5. Numerous times plaintiff was told that he had to go through OHR to request a disability accommodation. One person even alerted HR that plaintiff might be requesting a medical accommodation.
  6. Plaintiff mentioned his medical condition to a Human Resources Business Partner who told him that he could always apply for reasonable accommodation if needed and gave him the OHR policy. Plaintiff again declined to do so.
  7. Plaintiff was aware of Motorola’s process for requesting a disability accommodation. He was given the policy and consistently declined to contact OHR even though it was only OHR that could determine whether plaintiff was disabled and needed an accommodation.
  8. At no time during his employment did plaintiff contact OHR. Therefore, plaintiff failed to request an accommodation sufficient to start the interactive process under the ADA.
  9. A plaintiff cannot sit on their hands and decline to follow his employer’s reasonable accommodation policy when repeatedly directed by his supervisors to do so.

 

III

Judge Mathis Concurrence and Dissent Focusing on Why Plaintiff Didn’t Have to Ask for a Reasonable Accommodation through Motorola’s internal policy, but Engaging in the Interactive Process Is Another Question

 

  1. The court said that the disability discrimination claim also failed because of his behavior at work. Therefore, Judge Mathis agrees with the majority that plaintiff could not show pretext per McDonnell Douglas.
  2. Judge Mathis also agreed with the majority that the retaliation claim failed (it is unclear to me why Judge Mathis agreed with the majority on the retaliation claim in light of the rest of his dissent).
  3. Whether plaintiff established a failure to accommodate claim comes down to whether he proposed or requested a reasonable accommodation, and a jury could find that plaintiff did exactly that.
  4. Plaintiff asked his supervisor to change his work travel schedule to accommodate his disability.
  5. EEOC Guidance says that individuals can request accommodations in a conversation or by any other mode of communication.
  6. Plaintiff testified that starting in November 2020, he requested a reduced travel schedule multiple times because of his disability. Indeed, both of his supervisors admitted that plaintiff asked for work modifications because of his epilepsy. A reasonable jury could find that plaintiff’s conversations with his supervisors were accommodation requests. Therefore, that should end the inquiry into whether plaintiff requested a reasonable accommodation.
  7. The majority says that plaintiff never requested an accommodation because he did not follow Motorola’s accommodation policy. However, plaintiff’s failure to follow internal policy goes to his participation in the interactive process and does not address the issue of whether he requested an accommodation in the first place.
  8. Cases cited by the majority discussed the interactive process, which only occurs after (emphasis in opinion), a plaintiff requests an accommodation.
  9. Failing to participate in the interactive process is a completely different thing from whether a reasonable accommodation is requested in the first place, and Sixth Circuit cases are not to the contrary.
  10. Once plaintiff requested a reasonable accommodation, Motorola had a duty to engage in the interactive process. That duty requires the employer (emphasis in opinion), to initiate an informal, interactive process, in order to identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. The process is mandatory and both parties must participate in good faith.
  11. For plaintiff to establish Motorola’s failure to engage in the interactive process, plaintiff has to show that a reasonable accommodation was possible and could have been identified had the defendant engaged in the interactive process. Courts should also attempt to isolate the cause of the breakdown in the interactive process and then assign responsibility because whoever breaks down the interactive process loses.
  12. Plaintiff repeatedly requested a reasonable accommodation from his supervisors starting in November 2020. However, no one at Motorola ever engaged with him in order to determine an appropriate accommodation even though Motorola had a duty to inquire further.
  13. Sixth Circuit precedent as well as EEOC Guidance, both suggest that the ADA required Motorola to do more than just referred the plaintiff to human resources. The Sixth Circuit has held that an employer participate in the interactive process in good faith when it readily meets with the employee, discusses any reasonable accommodation, and suggests other possible accommodations. Here, no one at Motorola ever engaged the plaintiff to discuss his reasonable accommodation requests. Instead, his requests were ignored or he was directed to go to human resources.
  14. Plaintiff’s failure to follow Motorola’s accommodation policy did not excuse Motorola from engaging in the interactive process.
  15. After plaintiff started requesting an accommodation because of a disability, Motorola never asked the plaintiff to provide any medical documentation to support his claim or otherwise engage with him about his disability and his proposed accommodation. Instead, his supervisor simply ignored his requests or referred him to HR.
  16. An employee’s failure to file a formal accommodation request does not end the interactive process.
  17. It is absolutely true that an employer can ask an individual to fill out a form to submit a reasonable accommodation request in written form. The employer could also ask the employee provide reasonable documentation related to his disability. Further, where the employee’s disability or need for accommodation is not obvious, the employee is not entitled to an accommodation if he refuses to provide such documentation. Even so, an employer cannot ignore the initial request, and any failure by the employer to initiate or participate in an informal dialogue with the individual after receiving a request for reasonable accommodation could still result in liability for failure to provide a reasonable accommodation, which is exactly what Motorola did in this case.

IV

Thoughts/Takeaways

  1. Judge Mathis agrees with the granting of summary judgment on the discriminatory discharge and retaliation claims but disagrees with the majority’s grant of summary judgment on the failure to accommodate claim.
  2. The Sixth Circuit uses the direct evidence test to analyze failure to accommodate claims. Such a test requires that a plaintiff show that he is an otherwise qualified person with a disability. A plaintiff must propose a reasonable accommodation in order to succeed in doing that.
  3. If you are looking for preventive law approach, adopting the dissent’s approach is definitely the better way to go. It also makes conceptual sense to distinguish between requesting the accommodation, which the plaintiff most certainly did, and the engaging in the interactive process, which the plaintiff may or may not have done by rejecting entreaties to contact OHR.
  4. The Sixth Circuit in this case is mistaken that a proper diagnosis of a disability is required when requesting a reasonable accommodation. You most certainly are trying to figure out whether the reasonable accommodation relates to a disability as defined by the ADA and whether that reasonable accommodation will get the person to the same starting line, but that is not the same thing as saying that you have to supply a diagnosis. It is more accurate to say that a plaintiff has to provide notification of her disability and request an accommodation.
  5. The court uses the McDonnell Douglas approach. McDonnell Douglas involves figuring out whether direct or indirect evidence is involved and then using a burden shifting system. In the Sixth Circuit, failure to accommodate cases go off the direct evidence test. That may not be true in other Circuits, so be sure to check your jurisdiction. From my reading of the cases over the years, direct evidence cases are generally easier for a plaintiff to successfully fend off a summary judgment motion than indirect cases are. Also, as we have mentioned previously, it is quite debatable whether McDonnell Douglas should be used as a summary judgment tool at all. See this blog entry.
  6. Not all courts live or die by McDonnell Douglas. For example, the 11th Circuit, see here for example, uses the combination of McDonnell Douglas AND convincing mosaic to determine summary judgment.
  7. The dissent’s statement of what constitutes good faith (an employer readily meeting with the employee, discussing any reasonable accommodation, and suggesting other possible accommodation), is excellent preventive law.
  8. If the employee notifies the employer of the need for reasonable accommodation, it is the employer’s obligation to engage in the interactive process. The employer may or may not be able to successfully defend on the grounds that the internal policy for reasonable accommodation was never activated by the plaintiff. The dissent make strong arguments why an employer should not be able to defend on those grounds if the employer is otherwise notified of the need for a reasonable accommodation because of a disability.
  9. The dissent makes clear that ignoring a reasonable accommodation request is done at the employer’s peril. It most certainly helps if you have an internal policy. Here, the plaintiff consistently refused to operate under that internal policy.
  10. An employer may request documentation to substantiate a reasonable accommodation request where the disability is not obvious (whatever that might mean is unclear), but fishing expeditions are strongly discouraged.
  11. A person with a disability never overcomes a disability even with reasonable accommodations. Reasonable accommodations get the person to the same starting line as a person without a disability and also help them manage their disability. However, that is not the same thing as overcoming a disability.

 

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I did mention in my last blog entry that I might not be posting this week. Turns out, I had some time over the Memorial Day weekend to do a post, so here goes. I do hope everyone had a great Memorial Day weekend.

The blog entry for the week is a two for one that discusses the latest developments from HUD pertaining to ESA’s. It also discusses a published decision from the Sixth Circuit decided May 13, 2026, talking about whether leave (unpaid or paid), is a reasonable accommodation for a person needing to train their service dog. That decision also has some language in it discussing whether it is the disability being accommodated or is it the essential job functions being accommodated. As usual, the blog entry is divided into categories and they are: latest developments from HUD and highlights of its internal memorandum; a brief history of ESA jurisprudence; the situation in Tumbleson v. Lakota School District; leave to train a service dog is a reasonable accommodation but it doesn’t have to be paid; it is the essential functions of the job that is being accommodated and not the disability; and Tumbleson thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories (there is a lot to digest in this blog entry).

I

Latest Developments From HUD And Highlights of Its Internal Memorandum

Over Memorial Day weekend, the New York Times reported that HUD in an internal memo said that it will no longer support ESA’s in housing (the memorandum can be found here). This is something that I predicted in this blog entry, here. After the pulling of the HUD guidances by HUD, I can’t say that I am surprised. Also, even if the prior HUD guidances had remained, it is questionable, as we discussed here for example, whether the guidances would have survived Loper Bright, particularly in private housing.

Here are the highlights of the internal memorandum.

 

  1. Going forward HUD will find reasonable cause and recommend charges only for those cases involving animals trained to provide disability related assistance.
  2. The memorandum explores the history of emotional support animals and service animals at HUD. Turns out, §II of this blog entry which I did before seeing this internal memorandum very closely tracks the history laid out in the HUD internal memorandum.
  3. In 2026, it remains an immense challenge to determine whether an animal related reasonable accommodation should be granted or denied. Though the 2020 guidance was well-intentioned, the guidance failed to provide greater clarity on the distinction between pets and emotional support animals with the result that an entire industry has arisen to convert pets into emotional support animals. Further, the guidance has the effect of imposing categorical fair housing obligations on housing providers without complying with the notice and comment requirements of the Administrative Procedure Act, which HUD believed by itself is enough to resend the guidance.
  4. The memorandum references as one of its apprendices a case that we discussed here. HUD agrees with the Henderson court that HUD’s 2020 notice is unpersuasive. Accordingly, after analyzing that notice, HUD permanently rescinds that guidance.
  5. In the absence of HUD regulations defining animal-related reasonable accommodations, the regulation for service animals under Titles II and III of the ADA are instructive.
  6. Going forward, HUD will use the training component of the ADA’s definition for service animals to assess animal related reasonable accommodation complaints under the Fair Housing Act. Applying similar reasonable accommodation standards between the FHA and Title II, III of the ADA will provide improved clarity and predictability for tenants and housing providers alike.
  7. Defining an assistance animal as an animal trained to assist with a disability is the best guarantee of evenhanded enforcement of the FHA.
  8. Going forward, HUD will find reasonable cause for failure to provide a reasonable accommodation involving the waiver of a pet policy only where the animal has been individually trained to perform work or perform tasks directly related to the complainant’s disability.
  9. While requests to waive pet policy for animals trained to perform specific disability -related services are presumptively reasonable, requests to waive pet policies for untrained ESA’s are not. HUD no longer expects housing providers to categorically extend accommodations for trained assistance animals to untrained ESAs.
  10. In a footnote, which also tracks my thoughts below that I wrote before seeing this memorandum, HUD notes that an animal related reasonable accommodation under the FHA could involve a species other than a dog provided the animal is trained to perform a disability related service.
  11. Regional directors must send all open ESA cases to the Acting Deputy Assistant Secretary for Enforcement and Programs for a case-by-case determination on the merits.
  12. While the language and definitions in the ADA regulations have changed over time, HUD’s regulations for animal related reasonable accommodation by private housing providers have not been updated in 35 years. HUD intends to engage in notice and comment rulemaking regarding animal related reasonable accommodations, with the aim of harmonizing regulations, to the maximum extent possible, with those of the ADA.
  13. Whether a particular accommodation is reasonable under the circumstances is the type of fact intensive, case specific determination that benefits from notice and comment rulemaking.

 

II

A Brief History of ESA Jurisprudence

The question that this all raises is just where did an ESA as a reasonable accommodation in housing originate from. There are cases dealing with animals in housing as a reasonable accommodation stretching back to 1995. For example, the Seventh Circuit in Bronk v. Ineichen, 54 F.3d 425 (7th Cir. 1995), decided that a question of fact existed with respect to the skills of the animal that needed to be addressed before the animal could be allowed in housing. Similarly, Green v. Housing Authority of Clackamas County, 994 F. Supp. 1253 (D. Ore 1998) involved a hearing dog that was trained to assist D/deaf individuals. As far as I have been able to determine, the first case establishing that an ESA was a reasonable accommodation if it was necessary for a person with a disability to enjoy private housing is Overlook Mutual Homes, Inc. v. Spencer, 666 F. Supp. 2d 850 (S.D Ohio, 2009). In that case, the court held that emotional support animals could be a reasonable accommodation for a person with disability when necessary for them to enjoy housing. That court decision leaned heavily on HUD’s final regulations dealing with public housing and what HUD intended to do when it formulated that regulation. The public housing regulation is phrased quite a bit differently from HUD’s private housing regulation. Of course, eventually HUD came up with its animal guidance in 2013 and again in 2020 before withdrawing both of them in September 2025 and now permanently rescinding the 2020 guidance. The question I have is this: Overlook said that the history of the public housing final regulation applied equally in private housing. However, as it stands today, the HUD final regulations for public housing and for private housing are quite a bit different from each other, and that distinction may or may not lead to different results with respect to emotional support animals after Loper Bright and the pulling/rescinding of the guidances (the pulling/rescinding of the guidances essentially means that those guidances no longer exists). Also, as mentioned in my rapidly evolving world of ESA/service animals blog entry, here, Loper Bright can actually work to the advantage of a person with a disability. A plain reading of HUD’s final regulation on animals in private housing also suggests that any animal acting as a service animal as defined by the ADA would be permissible in private housing even if it was not a dog (HUD is taking exactly this position in its internal memorandum).

When it comes to emotional support animals, the disability rights community can be all over the place when it comes to emotional support animals. On the one hand, they definitely provide a need for people with disabilities to enjoy their housing. On the other hand, they can cause a problem for service animals as defined by the ADA. Finally, I do wonder what is the percentage of emotional support animals that are actually psychiatric service animals. If matters that have come across my desk are any indication, I suspect that the percentage is quite high. Of course, any narrowing of whether emotional support animals are permissible in housing will definitely lead to more claims of an animal being a psychiatric service animal. As I have mentioned before, the line between emotional support animal and a psychiatric service animal can be incredibly small. Also, advocates for ESAs are already constructing arguments against this memorandum and will not go down quietly.

If the new restrictions on emotional support animals and housing are litigated and taken all the way to the Supreme Court, I have absolutely no idea what the Supreme Court would do on this. Outside of employment, the Supreme Court has actually been very receptive to persons with disabilities. However, this Supreme Court is very corporation oriented. You also have very different final regulations with respect to public v. private housing. Finally, you now have Loper Bright to contend with as well. The amount of money involved to take this case all the way to the Supreme Court would be enormous. One wonders if the better approach for persons representing a person with a disability with an emotional support animal so to speak would be the psychiatric service animal approach rather than litigating on ESA grounds.

 

III

The Situation in Tumbleson v. Lakota School District

Plaintiff has Usher syndrome, which results in severe sight and hearing impairments over time. Even so, she performed excellently in the classroom. She decided that she needed a service animal in order to deal with her situation. When she first applied for a service animal, she was denied. 10 years later after her hearing and sight had further deteriorated, she was able to apply to the service animal training place and was accepted. In order to complete the training, she needed to be on site and had to miss work. She asked for paid leave, which was denied because the school district did not see how the training of a service dog fit any of its paid leave categories. However, they did grant unpaid leave, which she took. The dog has made a positive impact at her school. She then sought retroactive paid sick leave and this litigation resulted. While the plaintiff also sued for violation of FMLA with the court rejecting that claim, we aren’t going to discuss that section of the opinion, and I will leave that discussion for FMLA experts should they so desire to opine.

 

IV

Leave to Train A Service Dog Is a Reasonable Accommodation But It Doesn’t Have To Be Paid

  1. In the Sixth Circuit, McDonnell Douglas is utilized in ADA disparate treatment cases.
  2. The District Court’s conclusion that denial of paid leave was not an adverse employment action under the ADA because it allowed the plaintiff to take unpaid leave is quite debatable after Muldrow. See this blog entry for example.
  3. In Muldrow, which we discussed here, the Supreme Court held that Title VII requires an employee to only show some harm and not significant, serious, or substantial harm with respect to an identifiable term or condition of employment. Since the ADA reaches discrimination and the terms and conditions of employment, courts are applying Muldrow to the ADA.
  4. Denial of paid leave could certainly be described as a harm respecting a term or condition of employment because the unpaid employee is worse off than a paid one.
  5. It is unnecessary to decide the case on adverse action grounds because Lakota has a neutral reason for denying plaintiff’s paid sick leave: her request to attend guide-dog training did not fall within the definition of sick leave under the school board’s sick leave policy, Ohio law, and the collective bargaining agreement.
  6. Plaintiff did not offer a single example of a nondisabled employee receiving sick leave even when the employee’s proposed absence did not qualify for that leave.
  7. If anything, plaintiff’s own experience shows that Lakota neutrally applied the distinction between leave of less than 10 days v. leave of more than 10 days. The distinction mattered because of the levels of approval necessary to obtain that leave.

 

V

It Is the Essential Functions of the Job That Is Being Accommodated and NOT the Disability

  1. In the Sixth Circuit, failure to accommodate cases have their own burden shifting framework. First, employees must prove that they have a disability and are qualified individuals who can perform the essential functions of the job with or without reasonable accommodations. Second, employers must prove that a job duty qualifies as essential and that the accommodation imposes an undue hardship.
  2. The employee has to identify an accommodation and prove its reasonableness.
  3. The text of the ADA makes clear that an accommodation must be work related (emphasis in opinion), meaning that it allows an employee to perform the essential functions of the relevant job.
  4. To qualify as “reasonable,” an accommodation must alleviate a key obstacle that prevents the employee from being able to perform an essential job function.
  5. Courts will find a proposed accommodation unreasonable if an employee can perform the essential job functions and if the employee requests an accommodation for non-work-related reasons.
  6. Even if an employee needs some (emphasis in opinion), accommodation, the employer need not provide the specific accommodation that the employee wants. Instead, the employer has discretion to choose from among alternative (emphasis in opinion), reasonable accommodations if they all will permit the employee to perform the job. So, an employer may pick an accommodation that is less expensive or easier to implement when given the choice between two reasonable accommodations.
  7. It is not obvious that plaintiff’s proposed accommodation (unpaid leave), qualified as a reasonable one. At the time plaintiff requested leave, she continued to be an excellent teacher who did a wonderful job in the classroom. Further, there is little evidence in the record suggests that the lack of a guide dog stood as an obstacle stopping the plaintiff from completing any necessary function of her teaching role. All this said, this particular issue does not need to be decided because Lakota ultimately gave her an accommodation that allowed her to complete the guide-dog training, namely unpaid leave.
  8. Even assuming that plaintiff needed a guide dog to work as a teacher, Lakota’s accommodation was a reasonable one. After all, there is no dispute that unpaid leave allowed the plaintiff to attend the training and bring home the service animal. Also, plaintiff offers no evidence linking paid (emphasis in opinion), leave to the performance of the job. So, Lakota and not the plaintiff has the ultimate discretion to choose between the pay versus the unpaid alternative because both allowed the plaintiff to perform her job.
  9. The fact that plaintiff suffered financial difficulties is of no matter because those difficulties arose outside the work environment and do not go into the reasonableness calculus. Accordingly, those financial difficulties are beyond Lakota’s duties to accommodate under the ADA.
  10. Accepting plaintiff’s view would mean if an employee did not have the financial means to work only part time, the ADA would require the employer to provide full-time pay for part-time work. Requiring an accommodation to be for work-related reasons avoids this result.
  11. The record proves that two different accommodations, paid and unpaid leave, were both (emphasis in opinion), reasonable. So, in that scenario, Lakota has the ultimate discretion to choose the less expensive option even if the more expensive one would not have posed an excessive hardship.
  12. In short, since unpaid leave allowed the plaintiff to obtain her guide dog, Lakota met its obligation to provide a reasonable accommodation, and the ADA requires nothing more.

 

VI

Tumbleson Thoughts/Takeaways

  1. Leave is a reasonable accommodation under the ADA when necessary for training of a service dog. However, that leave doesn’t have to be paid leave, though it could be. It’s going to depend on the policies of the employer, state statutes, and where applicable, a collective bargaining agreement.
  2. The future of McDonnell Douglas as a summary judgment tool is very much a matter of debate, as we discussed here for example.
  3. Muldrow applies to ADA cases.
  4. Lakota went about it the right way by neutrally applying their policy and not having any inconsistency in how we did that with respect to its turning down paid leave.
  5. A plaintiff is not entitled to the accommodation they desire but only to a reasonable accommodation.
  6. The Sixth Circuit clearly comes down on the side of it is the essential job functions that are being accommodated and not the disability. That distinction has importance with respect to service animals as it isn’t always clear the work-related nature of the service animal.
  7. In my opinion, you definitely have a split between the Sixth Circuit (this blog entry), and the 11th Circuit (such as the case we discussed here), with respect to whether it is the essential functions of the job being accommodated or whether it is the disability being accommodated.
  8. Work-related as the standard for an accommodation is a hard one for me to figure out. As a person with a disability, I know the line between work-related and accommodating a disability can be incredibly fine. If a service animal is doing its job, then a person with a disability can do their best on the job with their abilities, which is work-related to me. The 11th Circuit, as mentioned above, seems to be closer to my view. That said, Tumbleson and some other decisions seem to have a much more narrower definition of work-related in mind. If you are in a jurisdiction that focuses on accommodating the essential functions of the job and not the disability, bringing in an expert to explain how the service animal helps the person do the particular job may be a worthwhile thing to do. We will definitely need to keep following the developments in this area.
  9. Even if work-related was not the standard as set forth by the Sixth Circuit, this case would arguably still result in the plaintiff losing her paid leave claim on the grounds that an employer can choose between the accommodation that makes the most sense if both are reasonable ones. Here, looking at the employer’s policy, Ohio state law, and the collective bargaining agreement, all allowed for the employer to choose unpaid leave regardless of any work-related nature.
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As readers know, I rarely blog more than once a week, but it does happen from time to time. This week is a really good week for me to blog twice because the Georgia legislature just completed the session with two bills signed by the Governor of Georgia on topics that we have covered quite a bit. Also, as I mentioned in my last blog entry, I may be taking a two week hiatus with my daughter coming in after the end of the school year for two weeks before she heads off for an internship.

 

The Governor of Georgia has signed two bills impacting persons with disabilities covering topics we have explored quite a bit in our blog. The two bills are HB 1470 and HB 668. The categories for this blog entry are a bit different, and they are: why HB 1470 will likely not survive a legal challenge; HB 668 brings Georgia into compliance with ADA regulations when it comes to service animals; and thoughts/takeaways.

 

I

Why HB 1470 Will Likely Not Survive a Legal Challenge

  1. HB 1470 provisions allows a defendant facing a website accessibility lawsuit to any time a lawsuit is decided on the merits, involuntary dismissed at any stage of the civil proceedings, or dismissed based on a lack of standing to recover: 1) actual damages for disruption of such person’s or entity’s business or other lost opportunity cost related to the unsuccessful action, or statutory damages of $10,000 whichever is greater; 2) reasonable attorney fees related to the defense of unsuccessful action and to the prosecution of an action under HB 1470; and 3) triple damages when prior to the entry of judgment in the underlying unsuccessful action, the plaintiff was given written notice of the provisions of HB 1470 but refused or otherwise failed to voluntarily dismiss the action. Law is effective on July 1, 2026, and applies to all causes of action accruing after that date.
  2. Title III of the ADA essentially works on a private attorney general concept whereby private attorneys can sue for violations and get injunctive relief and attorney fees and nothing else.
  3. Websites are often subject to Title III of the ADA, though it can get complicated depending upon the jurisdiction as to when the ADA applies, especially where the business is Internet only. The 11th Circuit currently has no precedential case law on when a website is subject to the ADA, and the courts around the country have varying views on the issue. That said, my colleague Richard Hunt often notes that the debate over whether a website is subject to the ADA is a bit academic because the Internet is everywhere. So, it would be entirely possible for a plaintiff’s attorney to file in a state that has a liberal view over what is a place of public accommodation.
  4. With the exception of a very limited law protecting State of Georgia employees from discriminatory practices, Georgia has no antidiscrimination laws at the state level.
  5. Given the provisions of HB 1470, no attorney will take on a website accessibility case in Georgia after this bill becomes law as the financial risks of doing so are just too high. In Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000), the Supreme Court held that a state law is preempted by federal law where the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Crosby at page 361.
  6. The provisions of HB 1470 create an insurmountable obstacle for any person in Georgia to bring an ADA Title III lawsuit alleging website inaccessibility involving a resident of Georgia or a domiciliary of Georgia. Creating such an obstacle to a federal right is something a state cannot do per Crosby. If s state has its own antidiscrimination law and wanted to restrict how that law was used, that would be another analysis, but Georgia has no such law.
  7. I recently saw that Missouri passed legislation signed by their Governor also on this topic. However, Missouri does have its own disability discrimination laws unlike Georgia, and the Missouri legislation specifically notes that it pertains to the Missouri law against discrimination.

 

II

HB 668 Brings Georgia into Compliance with ADA Regulations When It Comes to Service Animals

  1. Before HB 668, Georgia statutory provisions on service animals were a mess. Many of those provisions went way below the floor established by DOJ regulations. This bill brings the various Georgia statutory provisions into line with the DOJ regulations. It also gets rid of terminology that was very confusing to say the least.
  2. HB 668 makes it a misdemeanor subject to imprisonment and or a fine for anyone who intentionally interferes with a service dog by doing any of the following: 1) frightens, agitates, harasses, or tampers with the dog; 2) delays, obstructs, or hinders the dog in the performance of its duties as a service dog; or 3) allows his or her dog to harass a service dog.
  3. HB 668 makes it a misdemeanor subject to fine and or imprisonment to harm a service dog when a person knows or should have known that the dog is a service dog and the person intentionally: 1) causes, or commits an act that is likely to cause, physical harm, pain, or suffering to a service dog; or 2) allows his or her dog to cause physical harm, pain, or suffering to a service dog.
  4. HB 668 creates the offense of aggravated harming of a service dog when a person knows or should have known that a dog is a service dog and that person intentionally: 1) causes the death of the dog; or 2) injures a dog in a manner that materially affects its ability to perform as a service dog. The offense of aggravated harming of the service dog is a felony subject to imprisonment and/or a fine.
  5. In addition to the misdemeanor or felony charges, the court also “shall,” ordered the defendant to make restitution to the owner of the service dog for the cost of the veterinary expenses incurred in the treatment of such dog and the cost of any restorative training necessary to enable the dog to resume his duties. If the dog dies or is no longer able to engage in the performance of the duties as a result of the intentional acts covered by this legislation, a court “shall,” also include the amount of the actual replacement value of the service dog, including the value of the dog to replace the service dog and all costs associated with training of that dog and its handler or handlers.
  6. As far as what is a service dog, Georgia law now tracks the Title II and Title III DOJ regulations.
  7. As far as a service dog in training, Georgia law now tracks what is demanded by the ADA by allowing anyone to train their service dog.
  8. A service dog in training must be at least six months of age and reliably housebroken, which is consistent with best practices.
  9. It makes it a misdemeanor subject to fine and or imprisonment for any individual to deliberately misrepresent himself or herself as qualified to use a service dog or as a trainer of service dogs for the purpose of obtaining accommodations or securing rights available to such a person.
  10. Emotional support animals do not have the protections of service animals under this legislation.
  11. While HB 668 does not say when it goes into effect, the usual practice would be July 1, 2026, after the bill is signed. In this case, that would be July 1, 2026.

 

III

Thoughts/Takeaways

  1. It’s a mixed bag for persons with disabilities.
  2. Hard to believe how 1470 will survive a legal challenge because it involves a State taking away federal rights granted to an individual with a disability to sue for discrimination. It’s a separate question of whether things are out of control with respect to people suing for website inaccessibility. It’s also a separate question as to what standards govern website accessibility. Right now, the universal approach is WCAG level AA 2.1 et. ff., and the legal standard frequently used by the courts is meaningful accessibility.
  3. HB 1470 applies to any civil action brought by a claimant against a person or entity of Georgia. Therefore, the plain meaning of the law would allow an attorney representing such a defendant regardless of where the lawsuit was actually filed, to take advantage of HB 1470’s provisions. So, it’s entirely possible that the successful legal challenge to HB 1470 may emanate from a case filed outside of Georgia. On the plaintiff side, if a person or entity being sued resides in Georgia or is domiciled in Georgia, a plaintiff should immediately challenge HB 1470 upon filing of their lawsuit.
  4. HB 668 is really good news for persons with disabilities who use service animals as it brings very outdated Georgia law into compliance with DOJ final regulations. It also creates numerous offenses for interfering and/or harming a service animal. It also creates the criminal offense of misrepresentation of a service animal, which many people in the disability community will applaud.
  5. Whether Georgia prosecutors will actually take on cases involving people misrepresenting their dogs as service animals is unknown. However, the fact that the law is on the books may act as a deterrent for people to think twice about misrepresenting their dog as a service animal. Similarly, it is unknown whether Georgia prosecutors will take on cases involving interference or harm to service dogs.
  6. HB 668 uses the term “shall,” with respect to what a court must do when various provisions are violated. “Shall,” actually has seven different meanings, and people commonly use the term in at least four different ways. That said, the context of HB 668 suggests that “shall,” is used in a mandatory sentence akin to, “must.”
  7. Since the misrepresentation law is on the books, the importance of making the two inquiries allowed by the DOJ final regulations where it is not readily apparent what the dog does for a person with a disability becomes even more important than it previously was. Without making those two inquiries, it is hard to understand how a person could be successfully prosecuted for misrepresenting a service animal. Businesses should be making those two inquiries anyway as the inquiries are good preventive law for preventing negligence lawsuits should a dog misbehave. See this blog entry.
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I hope everyone had a great holiday weekend. A housekeeping matter. My daughter comes home at the beginning of next week for two weeks before heading off to her internship. So, my schedule will be all over the place and my time for blogging uncertain. I definitely will pick up the blogging again at the very latest the first week of June.

 

Today’s blog entry comes by way of University of Iowa Clinical Law Professor Emeritus Leonard Sandler who sent me the appellate decision in the case. After reading the appellate decision, which can be found here, I had to read the trial court decision as well. The appellate decision basically says the trial court got it right when it denied a mandatory injunction, but is otherwise rather light on analysis and what the case is all about. The case of the day concerns Solan v. Arizona, which was decided by the Ninth Circuit on May 5, 2026 in an unpublished decision. The trial court opinion, which is the opinion that will be discussed in this blog entry, can be found at Solan v. Arizona, No. CV-24-02061-PHX-JJT (DMF), 2025 LX 160818 (D. Ariz. May 27, 2025), 2025 U.S. Dist. LEXIS 120071 * | 2025 LX 160818 | 2025 WL 1694962. The case definitely takes the prize for the most wild set of facts we have yet to encounter in this blog. By way of full disclosure, a lawyer mentioned in the trial court opinion who played a role in the case, Holly Gieszl, is an attorney whom I have consulted with in the past but have no cases with her at present. Also, the trial court discusses state law claims, but we are not going to explore in detail those claims. As usual, the blog is divided into categories and they are: the situation; why plaintiff sufficiently pleaded ADA and Rehabilitation Act claims; why collateral estoppel does not apply; why the mandatory injunction gets denied; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

The situation

Plaintiff is 35 years old and suffers from numerous disabilities, including Autism Spectrum Disorder (ASD), PTSD, and Chronic Inflammatory Response Syndrome. These impairment substantially limit many of his major life activities. Prior to his confinement at the Arizona State Hospital, he utilized his service dog, Foxy, to help manage the effects of his disabilities. In 2019, plaintiff was arrested and confined to a County detention facility without Foxy and was subsequently committed to the Arizona State Hospital without Foxy as a result of being found guilty except insane of aggravated assault. While in County detention, he petitioned to have his service animal to accompany him. The county denied that request and he sued. During the course of that litigation, the service animal passed away and so the parties agreed that the matter was moot. He renewed the lawsuit once he was committed to the Arizona State Hospital when the hospital denied the request to have his new service animal be with him. The service animal the plaintiff wanted with him at the hospital was his prior service animal that had been cloned at his own considerable expense and then trained to be a service animal.

In the first lawsuit, plaintiff also filed a motion for preliminary injunction challenging the denial of the service animal request and requesting that the defendant be ordered to admit service dogs unless or until it is proven by substantial evidence that a particular dog poses a direct threat to the health and safety of others that cannot be mitigated by reasonable accommodations. The court found a likelihood of success on the merits of his ADA and Rehabilitation Act claims and ordered the Arizona State Hospital to conduct a particularized assessment of the request in order to determine: 1) whether reasonable modification to its policies, practices, and procedures could be made in order to permit plaintiff the use of his service animal while housed at the forensic hospital; and 2) whether the service animal would be disruptive to the health or safety of other patients at plaintiff’s current housing unit based on reasonable judgment relying on current medical knowledge or the best available objective evidence and including an assessment of individual patients at plaintiff’s current housing unit and the effect the service animal may have on them, including the probability that injury will actually occur.

From there, things went off the rails even more. The hospital issued a Particularized Assessment Letter that did the following: 1) enumerated policies that might need to be altered without explaining why any of those alterations were required or how the alterations would impose a substantial burden; 2) made several defamatory allegations on plaintiff’s character and falsely accused him of making statements showing that he had engaged in or intended to engage in sexual conduct with his service animal. The accusations were categorically false, had no evidentiary support, and had never been raised during plaintiff’s treatment at the hospital or in any of the State’s pleadings prior to the court order requiring the particularized assessment.

The evidence presented clearly shows that the cloned dog had been trained to be his service animal and was capable of doing that job. Plaintiff claimed that the denial of the service animal destroyed his therapeutic relationship with his providers and caused him to experience distress, anguish, and heightened mental health symptoms. He also was forced to pay expenses to board the dog pass the time needed for her training.

 

II

Why plaintiff sufficiently pleaded ADA and Rehabilitation Act claims

  1. In order to state a claim under Title II of the ADA, a plaintiff has to show: 1) he is a qualified individual with a disability; 2) he was either excluded from participation in or denied the benefits of a public entity’s services, programs or activities, or was otherwise discriminated against by the public entity; and 3) the exclusion, denial of benefits, or discrimination by reason of his disability.
  2. Nobody disputed that plaintiff was a qualified individual with a disability and that the Arizona State Hospital was a public entity through which he qualified to receive services.
  3. The allegations that he had previously used his service dog to ameliorate the effects of his disabilities prior to being committed and that the lack of the service dog made him unable to effectively engage in any of the treatment programs offered by the Arizona State Hospital are sufficient to show that he was being denied benefits and services he could otherwise receive from the Arizona State Hospital but for his disabilities. It also was sufficient to show that the State’s denial of his request for the service animal discriminated against him because of the disability. Accordingly, these allegations are sufficient to get beyond a motion to dismiss.
  4. Arguments by the defendants to the contrary attacked the merits of the claims and not whether plaintiff pleaded sufficient facts to proceed, and therefore are not applicable at this stage of the case.

 

III

Why collateral estoppel does not apply

  1. Several months passed between plaintiff’s receipt of the 2022 Particularized Assessment and the dismissal of his first lawsuit. However, for collateral estoppel to apply, it is not enough simply to show that the parties had a full and fair opportunity to litigate an issue in a prior action. Instead, the parties must actually have litigated the issue. Further, the issue must be one that was necessary to decide the merits.
  2. Issue preclusion requires that an issue was necessarily determined by a court of competent jurisdiction to be conclusive in the subsequent suit.
  3. The State has not carried its burden of showing the parties ever litigated the sufficiency of the 2022 Particularized Assessment in the first lawsuit or that the court made any rulings on it essential to the dismissal of that action. The dismissal was clearly based on mootness with the first service animal having passed away. Therefore, there could not have been any judgments having any preclusive effects.
  4. The issue before the court was whether the State has sufficient reason to exclude the second service dog and not whether the State’s prior letter was sufficient to exclude the original service dog.

 

IV

Why the mandatory injunction gets denied

  1. A plaintiff seeking injunctive relief must show: 1) he is likely to succeed on the merits; 2) he is likely to suffer irreparable harm in the absence of injunctive relief; 3) the balance of equities tip in his favor; and 4) an injunction is in the public interest.
  2. When a plaintiff seeks a mandatory injunction, injunctive relief is subject to a higher standard than when he seeks a prohibitory injunction. In the mandatory injunction situation, those injunctions are only permissible when extreme or very serious damage will result in a situation that is not capable of compensatory damages and the merits of the case are not in doubt. Further, under the Prison Litigation Reform Act, any injunctive relief must be narrowly drawn and be the least intrusive means necessary to correct the harm.
  3. A public entity has to make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability absent the public entity demonstrating a fundamental alteration in the nature of the service, program, or activity or an undue financial and administrative burden.
  4. When a public entity refuses to make the requested accommodation on fundamental alteration or undue burden grounds, the decision must be made by the head of a public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity. It also must be accompanied by a written statement of the reason for reaching that conclusion.
  5. While a public entity may impose legitimate safety requirements necessary for the safe operation of the services, program, or activities, it must also ensure that those safety requirements are based on actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities.
  6. With regards to service animals, a public entity generally must modify its policies, practices, or procedures in order to permit the use of a service animal by an individual with a disability. Where a service animal was permitted, it has to be under the control of its handler and the public entity is not responsible for its care or supervision of the service animal.
  7. The State argues that plaintiff cannot show that the State denied him any benefits based on his disabilities because having a service animal is not necessary for the plaintiff to participate in or benefit from the hospital’s services, programs, and activities. The State pointed out that the plaintiff admitted in an interview that he does not need the service animal for any physical limitations. The State also argued that having a service animal would not help plaintiff with his mental disabilities, but rather it would hinder plaintiff’s ability to benefit from the mental health services the hospital was designed to provide. In particular, the service animal would impede the purpose of commitment to the hospital, which was in part to learn how to better get along with people. Finally, plaintiff admitted to liking animals better than people.
  8. Several comments made by the plaintiff gives the court reason to suggest that there might be an unnatural attachment (sexual), between the plaintiff and his service animal. It doesn’t matter that plaintiff said those statements were taken out of context or that the court had previously held that those statements utilized as the basis for denial of the second service animal were pretextual.

 

V

Thoughts/takeaways

  1. This case definitely takes the award for most wild set of facts we have ever seen in this blog.
  2. While the mandatory injunction was denied, the case still proceeds with respect to the ADA and Rehabilitation Act claims and the court required those claims to be answered by the defendant.
  3. While we did not discuss the state law claims (defamation), the state allows those claims to proceed as well and the court required those claims to be answered by the defendant.
  4. The Ninth Circuit decision affirmed the trial court’s denial of the preliminary injunction finding no clear error existed, but the Ninth Circuit did not address any other claims.
  5. The case raises the real question of whether the DOJ Title II service animal regulations stop at the state hospital or “prisons,” gate. Nothing in the regulations suggests that they do. That said, what is a fundamental alteration may have a different set of considerations in a state hospital or in a prison.
  6. This decision also suggests that in a prison or state hospital situation, a court might give considerable deference to what is said by those authorities v. the deference they might give in any other context. For example, the court talks about how legitimate safety requirements must be based on actual risks, and not on mere speculation, stereotypes, or generalizations about individuals with disabilities. However, while the facts seem to be in dispute in this case, the court largely brushes it off, with respect to the injunction claim anyway. It will be interesting to see what deference is given as the case proceeds.
  7. The trial court mentions the requirement that a CEO sign off on any undue burden/fundamental alteration defense, but there is no indication that the CEO actually did that in this case. You would be surprised how often nonfederal governmental entities (entities subject to Title II), are not aware of this requirement.
  8. The information shared by the plaintiff with his treatment providers was actually used against him. I have seen similar situations arise with respect to students with disabilities sharing information with their university/college counselors.
  9. Mandatory injunctions have to meet a higher standard than prohibitory injunctions if they are to be granted.
  10. Interesting that the court dismisses alleged sexual proclivities with respect to the ADA and Rehabilitation Act claims, but says those concerns are valid with respect to a mandatory injunction claim.
  11. One of the issues in service animal disputes that arises frequently is whether it is the disability being accommodated or whether it is the essential functions of the job that is being accommodated. As we have discussed in the blog, the courts go both ways on that. That issue gets complicated when it comes to the prison or state hospital context. Here, Arizona essentially argued that in order to fix the disability, a person could not have his service dog. Fixing the disability is ableism, but here the plaintiff was found guilty except insane. So, fixing the disability so to speak is very much a part of why the plaintiff was committed in the first place.
  12. The plaintiff is pro se. This is a real complicated case when it comes to the service animal rules and what might be a fundamental alteration to the programs, services, and activities of the State Hospital. So, one wonders whether the plaintiff will be able to retain an ADA knowledgeable team. This is not an easy case to pursue absent such a team.
  13. While we will have to see, this case doesn’t seem likely to settle.
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This week’s blog entry is a case that has been previously blogged on by others in the blogosphere. Robin Shea in her blog blogged on our case of the week, here. However, as readers know, there are occasions where I will blog on a case that someone else has talked about first when I think I can offer my own perspective. This week’s blog entry is such a case. The case of the week is Carney v. Emory University, an unpublished decision from the 11th Circuit decided on April 15, 2026, here. By way of full disclosure, I have participated as a judge in moot court and mock trial activities with Emory over the years, but have no other relationship with Emory (Emory is not far from where I am). As usual, the blog entry is divided into categories and they are: the situation (taken from the opinion, and I really struggled with whether I could make this section shorter); why coaching and medical examinations/disability -related inquiries are not the same; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

The Situation

Dr. Carney worked for the Department of Urology in Emory’s School of Medicine. He was a urologist at Grady Hospital, where he also served as the site director for the residency program and director of undergraduate medical education. According to Dr. Carney, training residents and fellows was one of his most important job duties.

From 2013 through the remainder of his employment, Dr. Carney reported to Dr. Martin Sanda, the chair of Emory Urology. Dr. Carney testified that, during several disagreements with Dr. Sanda between May 2015 and July 2020, Dr. Sanda told Dr. Carney he needed to have his “head examined.”

In July 2022, the residency director for Emory Urology sent Dr. Sanda an email about certain concerns she had heard from Grady residents. These concerns were about Dr. Carney and they related to professionalism and respectfulness. Among other concerns cited in the email, female residents had complained about Dr. Carney touching them and making derogatory jokes about female surgeons. They also said they feared retaliation.

The School of Medicine conducted an internal investigation. It interviewed both urology residents and Dr. Carney. Dr. Carney called the residents’ complaints “lies.” He said he would “never” work with the complaining residents again, even if it meant losing his job.1 The review found that Dr. Carney’s denials and explanations “were generally convincing,” but that he failed to appreciate the impact his telling inappropriate jokes had on his reputation.

On January 4, 2021, Dr. Sanda emailed Dr. Carney. He said that, while the internal review “did not find cause for disciplinary action,” it did “confirm behaviors that warrant guidance,” including a need to “improve [his] awareness of how [his] behaviors and actions affect others and to enhance [his] approach in navigating conflict.” To that end, Dr. Carney was directed to do two things: (1) “engage with Gordon Tuttle of FSAP [(Emory’s Faculty Staff Assistance Program)] for coaching regarding navigating conflict, leadership, and responding to feedback”; and (2) complete a “professional development” program regarding sensitivity to boundaries.

Tuttle, a licensed psychologist, was the manager of physician services at FSAP. Dr. Sanda’s e-mail went on to explain that 1 The complaints were referred to Emory’s Title IX office, which reached out to the complaining residents. But no investigation was opened since none of the witnesses responded. Dr. Carney’s “engagement with Gordon Tuttle for professional development coaching is considered vital to advance the communication skills necessary” for him to resume his leadership position. Tuttle was copied on this email.

Dr. Carney completed a professional development program, but he refused to see Tuttle. In March 2021, Dr. Sanda emailed Dr. Carney about “next steps.” Those included contacting Tuttle “by the end of this week.” Dr. Sanda advised that Tuttle “has expertise in coaching clinical faculty on avoiding and resolving conflict and communicating effectively that will be invaluable to you and to the team alike,” and that he would “assess your goals and recommend strategies for moving forward.” When Dr. Carney failed to connect with Tuttle, Dr. Sanda sent another email stating that “connecting with [Tuttle] is a necessary step” to “repair the learning environment.”

Dr. Carney viewed the requirement to visit Tuttle as “childish,” demeaning, and unnecessary. He also felt it was an unlawful requirement to undergo a medical examination or inquiry into his mental health, based on Dr. Sanda’s prior comments that he needed his “head examined.” Dr. Carney made clear to Dr. Sanda in several emails that he had “no intention of seeing” Tuttle. Dr. Carney insisted that Dr. Sanda was “inventing a problem that does not exist,” that no coaching was necessary, and that he had been “cleared” of the residents’ “false accusations.”

The standoff continued through May 2021. At that point, Dr. Sanda told Dr. Carney that he could work with Rick Brandt, USCA11 Case: 24-13070 Document: 40-1 Date Filed: 04/15/2026 Page: 4 of 13 24-13070 Opinion of the Court 5 who was another leadership coach Dr. Sanda had worked with several years earlier, or a “suitable alternative coach,” instead of Tuttle. In an email on May 8, Dr. Sanda stressed that Dr. Carney’s “commitment to engage earnestly in leadership coaching will be a necessary first step” to remaining at Emory. According to Dr. Carney, Dr. Sanda told him on May 7, the day before the email, that “Brandt was a psychologist who would be able to help [him] work through [his] mental issues.” On May 26, 2021, Emory notified Dr. Carney that his appointment would not be renewed beyond August 31, 2021.

 

Following the non-renewal decision, Dr. Carney twice met with Tuttle, on June 1, 2021, and July 6, 2021. Before doing so, Dr. Carney signed a consent form to use FSAP’s services, which explained that FSAP provides services to faculty and stuff “through assessments, consultations, interventions, education, and prevention programs.” It explained, “Your first session with the FSAP clinician will involve an assessment to determine the type of services [that] may best meet your needs. We help employees discover and manage options and resources for dealing with any situation, behavior, or concern that may affect their ability to live or work in a healthy manner.” On June 1, Dr. Carney had a video call with Tuttle, who was in his FSAP office. Tuttle began by asking about Dr. Carney’s sleep patterns, exercise and energy levels, appetite, stress management, and worrying. Tuttle acknowledged that these questions could be relevant to assessing depression and anxiety. But he otherwise testified that “coaching isn’t a medical service,” and that he was simply checking in with Dr. Carney since he had “just lost his job.” Tuttle said that he offered both “mental health services” and “nonmedical physician coaching,” with the latter focused on the physicians’ “professional goals.” At the second appointment in July, Tuttle recommended that Dr. Carney read a book on emotional intelligence.

 

II

Why Coaching and Medical Exams/Disability -related Inquiries Are Not the Same

  1. The ADA per 42 U.S.C. §12112(d)(4)(A), generally prohibits employers from requiring medical examinations or making disability related inquiries unless such an examination or inquiry is shown to be job-related and consistent with business necessity.
  2. A plaintiff does not have to be disabled or regarded as having a disability in order to bring a claim under the medical examination/disability related inquiries provisions.
  3. Neither the statute nor the regulation define “medical examination.”
  4. Both parties referred to the EEOC Enforcement Guidance on the subject, which defines a “medical examination,” as a “procedure or test that seeks information about an individual’s physical or mental impairments or health.”
  5. The Enforcement Guidance lists several factors for determining whether a test or procedure is medical, though it notes that one factor can be enough by itself, including: 1) whether the test is administered or interpreted by a healthcare professional; 2) whether the test is designed to reveal an impairment or physical and mental health; 3) how invasive the test is; and 4) whether the test is normally given in a medical setting or involves medical equipment. Further, the guidance goes on to state that medical examinations include psychological tests designed to identify a mental disorder or impairment, but not psychological tests measuring personality traits such as honesty, preferences, and habits.
  6. The guidance also talks about how the ADA generally prohibits disability related inquiries, i.e. questions likely to elicit information about a disability. However, employers can ask other non-disability -related questions, including: asking generally about an employee’s well-being; asking an employee who looked tired or ill if they are feeling okay; asking an employee who is sneezing or coughing whether they have a cold or allergies; and asking how an employee is doing following the death of a loved one or the end of the marriage/relationship.
  7. Unlike the case that we talked about here, plaintiff was not referred broadly for psychological counseling. Instead, the evidence reflects that he was ordered to obtain coaching, and that the coaching was specifically for navigating conflict, leadership, and responding to feedback. It was also for avoiding and resolving conflicts and communicating effectively, which was vital for advancing the communication skills necessary for the plaintiff to resume his leadership position. Plaintiff offered no evidence that he was required to undergo a procedure or test as part of his coaching or otherwise.
  8. The mere fact that plaintiff could have obtained mental health services or psychological counseling from Tuttle, Brandt, or FSAP is not evidence plaintiff was required to receive those services.
  9. It is a stretch to say that the content of the last session, which occurred after he had already been nonrenewed, would match the content of a hypothetical first session if the plaintiff had attended one. So, in context (he had been nonrenewed already and had previously refused to discuss the issues for which coaching had been ordered), the questions that were asked about sleep, appetite, exercise, and stress were not disability related inquiries or a medical exam.
  10. The EEOC Guidance generally permits inquiries about an employee’s well-being and how an employee doing following a significant life event, which would include the loss of a long-term position of authority.
  11. Tuttle testified that his coaching session started with a niceties or a check in, which often included asking gross indicators of how someone is doing. No one disputes that the plaintiff had just lost his job when he first met with Tuttle.
  12. No evidence exists that Tuttle attempted to follow up on his broad inquiries, conducted any psychological testing, reviewed plaintiff’s medical records, or made any findings or diagnosis. Accordingly, no evidence exists that the coaching in question was likely to probe and explore whether the plaintiff suffered from a mental health disability, regardless of whether that was Emory’s intention.
  13. The record reflects that Emory’s physician coaching was nonmedical and focused on professional goals. Tuttle testified that it wasn’t necessary to assess or evaluate an individual’s mental condition in order to engage in coaching, and that he did not perform exams or assessments to diagnose a mental condition as part of his coaching work. In addition, another witness for Emory testified that physician coaching involved a non-clinical assessment of the individual’s strengths and weaknesses, and that Emory never referred physicians for psychological counseling or treatment.
  14. It is too speculative that the statement made by plaintiff’s supervisor that Brandt could help the plaintiff work through his mental issues necessarily leads to the conclusion that Brandt would have administered any test or procedure to the plaintiff let alone one designed to reveal a mental or physical impairment.
  15. Since the plaintiff never saw Brandt (a psychologist who did not work for Emory but had coached Emory faculty), no evidence of the content of the coaching session with him exists. Plaintiff’s subjective beliefs and speculation about what might have occurred is not sufficient to defeat summary judgment.

 

III

Thoughts/Takeaways

  1. Emory walked a very fine line here, but it worked out for them. Referrals for “coaching,” can go bad in a hurry.
  2. The court cited to Kroll, which is one of my go to cases, when discussing medical exams. We discussed that case here.
  3. A closely related blog entry is this one. That blog entry illustrates nicely why the fine line for referring to coaching can be extremely problematic. It also illustrates why it should not be surprising that plaintiff resisted going into the FSAP.
  4. Another related article is this one, which discusses the obligations under the ADA of the people examining people in “fitness for duty,” situations.
  5. Even after Loper Bright, this case illustrates that the EEOC enforcement guidance on medical exams/disability related inquiries is still influential with the courts.
  6. When it comes to disability related inquiries, having that reviewed, as a preventive law approach, by a person with a disability can be incredibly helpful as people with disabilities are really sensitive to those types of issues.
  7. I can see how it could be really easy for “coaching,” to turn into psychological counseling. Here, personnel walked right up to that line. However, in the court’s eyes they did not cross it. I could definitely see how a very disability sensitive judge might feel otherwise and deny/overrule summary judgment as the facts are a really close call.
  8. Knowledgeable ADA legal counsel with sensitivity to persons with disabilities is extremely important when it comes to the issue of medical exam/disability related inquiries as this is an extremely sensitive area for people with disabilities.
  9. A plaintiff does not have to have a disability to bring impermissible medical exam/disability related inquiries claims.
  10. With respect to personality tests, they can be extremely problematic vis-à-vis medical exam/disability related inquiries. See this case (Karraker v. Rent-A-Center, Inc., 411 F.3d 831 (7th 2005).
  11. When it comes to licensing matters, it is really important to involve broad ADA expertise as soon as possible because numerous titles of the ADA are simultaneously involved. At a minimum, Title II (licensing boards), and Title III (the PHP or PRP, AP/assistance programs, etc.), are always involved. If the referral is the result of a person employed (many physicians nowadays, for example, are employees), then you make it a trio with Title I of the ADA being involved as well.
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Before getting started on the blog entry for the week, last week, the Federal Bar Association blog posted my piece on the interactive process. It’s an unusual piece of writing in that it talks about the step-by-step approach to the interactive process AND the psychological overtones of the process. Again, as I mentioned in that piece, my thanks to Robin Shea of Constangy Brooks for her blog entry on the step-by-step approach to the interactive process and for allowing me to borrow her steps and refine it from my perspective. You can find the Federal Bar Association blog piece here.

 

Turning to the blog entry of the week, it is a published decision from the Sixth Circuit decided on February 25, 2026. It asks the question of whether an attached claim to a sexual harassment claim allows the attached claim to circumvent an arbitration agreement. The Sixth Circuit holds that it does. The case is Bruce v. Adams and Reese, LLP, here. The Sixth Circuit majority opinion goes into elaborate detail about why the sexual harassment claim was properly pleaded, but for our purposes that discussion isn’t really relevant once it is known that the claim was properly pleaded in the first place. As usual, the blog entry is divided into categories and they are: the situation (I decided that “facts,” is just too boring); why a properly pleaded sexual harassment claim allows attached claims to circumvent arbitration after the enactment of the Ending Force Arbitration Act (EFAA); dissenting opinion of Judge Thapar; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

The Situation

 

Plaintiff has a history of childhood abuse as well as diagnosis of: PTSD, ADHD, social phobia, persistent depressive disorder, sleep apnea, insomnia, periodic limb movement disorder, and restless leg syndrome. While working for the law firm that she started with, which became part of another law firm, she experienced sexual harassment. She filed a sexual harassment claim, and she also filed ADA claims for failure to accommodate and/or engage in an interactive process. The issue faced by the Sixth Circuit was whether the EFAA allows attached claims, in this case ADA claims, to also escape arbitration.

 

II

Why A Properly Pleaded Sexual Harassment Claim Allows Attached Claims to Also Circumvent Arbitration After the Enactment of the Ending Force Arbitration Act

 

  1. Section 402(a) reads, in full, as follows: IN GENERAL.—Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute jointaction waiver shall be valid or enforceable with respect to a case (emphasis mine), which is filed under Federal, Tribal, or State law and relates (emphasis mine), to the sexual assault dispute or the sexual harassment dispute.
  2. The keyword is “case,” because it is “respect to a case,” that an otherwise valid arbitration agreement is invalid and unenforceable. Therefore, that term points clearly in the direction of “case,” encompassing a plaintiff’s entire suit.
  3. Black’s Law Dictionary defines “case,” as, “a civil or criminal proceeding, action, suit, or controversy at law or in equity.”
  4. The Federal Arbitration Act uses the word “case,” to reference an entire matter, including all the claims associated with it. In fact, the term makes sense only if read to refer to a proceeding.
  5. Numerous other provisions of federal law also support the premise that “case,” refers to a proceeding. For example, a party does not call a witness in a claim, or count, or cause of action.
  6. “Claims,” are the component parts of a “suit,” “case,” or “action,” each of which encompasses the entirety of a civil proceeding.
  7. The EFAA’s text renders an arbitration agreement unenforceable with respect to a plaintiff’s entire case, or action, and not only with respect to certain claims.
  8. The cases the EFAA shields are those relating to sexual assault disputes or sexual harassment disputes.
  9. “Relate,” means to have some connection to or stand in relation to per Black’s Law Dictionary.
  10. In other contexts, the Supreme Court has held that one thing “relates to,” if it has a connection with or reference to that other thing (a deliberately expansive term).
  11. The Sixth Circuit has also recognized that “relates to,” is an expansive term.
  12. When a plaintiff files a case that includes a sexual harassment claim, that case certainly has “a connection with,” and “reference to,” the claim.
  13. Congress could easily have drafted the EFAA to protect only sexual harassment claims and sexual assault claims from force arbitration, but it didn’t follow any of those paths. For example, Congress could have used the word “claim,” instead of the word, “case,” but they did not do so.
  14. To hold that “claim,” and “case,” are synonymous ignores Congress’s deliberate choice of words.
  15. The idea that every word and every provision of the statute must be given effect, disfavors a narrow reading of such a statute. Congress could have provided plaintiffs with protection limited to sexual assault claims and sexual harassment claims simply by striking the words “a case which is filed under federal, tribal, or State law and relates to the,” from §402(a) and they didn’t do so. To hold otherwise, would cause these words to have no consequence and such a reading therefore should not be preferred.
  16. Congress also could have used the term “individual disputes,” as another way of making clear that attached claims to sexual harassment or sexual assault cases would also have to be arbitrated. Congress didn’t do that either.
  17. The EFAA’s text and statutory structure all points in the same direction. A court has to presume that Congress says in a statute what it means and means in the statute what it says there. Accordingly, since EFAA’s bar to arbitration focuses on cases and not on claims or causes of actions, and Congress did not take obvious alternative paths when drafting the legislation, attached claims to sexual harassment or sexual assault matters do not have to be arbitrated.
  18. Federal policy favoring arbitration has nothing to do with whether a statute mandates arbitration of certain claims where the statute unambiguously precludes arbitration of an entire case.
  19. Since the EFAA’s plain language controls, each claim that is a part of plaintiff’s case may remain in court, whether that is taken claim by claim or as a whole.
  20. When Congress enacts similar language to a statute that has been consistently construed in one way, it is presumed that Congress intended to incorporate that interpretation.
  21. Policy arguments to the contrary simply cannot prevail over the plain language of a statute.
  22. The sole function of courts where the disposition required by a statute is not absurd, is to enforce the statute according to its terms.
  23. The stated purpose of the EFAA according to the House Report, “is to restore access to justice for millions of victims of sexual assault or harassment who are currently locked out of the court system and are forced to settle their disputes against companies in the private system of arbitration.” Allowing these “millions of victims,” to bring other claims alongside their sexual assault or harassment claims is far from “demonstrably at odds with this intention.”
  24. It is entirely possible that Congress would view the holding that attached claims to sexual assault or sexual harassment claims survive as advancing the intent of the legislation because the alternative would discourage plaintiffs from accessing the court system as a result of the increased costs and time commitment in bringing parallel actions in different forums.
  25. The defense has not demonstrated the effects of the holding in this case will contravene congressional policy, much less sufficiently so that the court could disregard the law’s plain text.

 

III

Dissenting opinion of Judge Thapar

 

  1. Judge Thapar’s dissent focuses on his belief that plaintiff simply did not state a sexual harassment claim based upon prior precedent.
  2. Since his belief is the sexual harassment claim should have been dismissed, the ADA claims should be arbitrated. He noted that the majority, the district court, and the parties all agreed on such an outcome if the sexual harassment claims were dismissed.

 

IV

Thoughts/Takeaways

 

  1. I am seeing several cases coming down of late reaching the same conclusion as the Sixth Circuit. So, if a plaintiff properly pleads a sexual harassment or sexual assault claim, attached causes of action are also not subject to arbitration. Of course, a plaintiff should plead each and every claim with Iqbal/Twombly in mind. It will be interesting to see whether a circuit court split develops on whether attached claims to sexual harassment and sexual assault claims escape forced arbitration.
  2. I am also seeing cases coming down where the very strict view of what constitutes a hostile working environment is being modified in the courts (See this blog entry for example). The courts are often using the same language they have always used, but they are, in many cases, being more flexible in allowing such claims to proceed or even survive summary judgment.
  3. This case also illustrates, as my colleague Robin Shea has noted in her blog entries, how hard it is to throw out a case at the motion to dismiss stage. Defendants are going to have much more success throwing out cases at the summary judgment stage than they are at the motion to dismiss stage.
  4. I have also seen commentators, such as Jon Hyman, who represents management and labor and employment matters, express reservation as to whether arbitration is all that it is cracked up to be. So, unclear how much this holding actually adversely affects defendants.
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This week’s blog entry focuses on what happens if assuming for the sake of argument, renovations are not readily achievable at a place of public accommodation, whether that ends the analysis. The answer is no. The case also discusses just how the burden of proof works with respect to claiming that an accommodation is readily achievable.  Our case of the day is Lopez v. Catalina Channel Express Inc. 10, 974 F.3d 1030 (9th Cir. 2020), here. This case also sets an Understanding the ADA record for being decided six years before blogging on the case. Even so, the case is worth blogging on for the issues it discusses. As usual, the blog entry is divided into categories and they are: facts; court’s discussion of who bears the burden of proof at summary judgment with respect to whether an architectural barrier is or is not readily achievable; court’s discussion of how even assuming that removal of the architectural barrier is not readily achievable, alternative solutions still need to be explored; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Daniel Lopez is confined to a wheelchair due to a disability and alleges that he was unable to use the restroom aboard the Jet Cat Express, a passenger vessel sailing between Long Beach and Santa Catalina Island, California, because the restroom’s door was too narrow to allow his wheelchair to enter resulting in him soiling himself. Lopez sued Catalina Channel Express, Inc. (“Catalina”), which owns and operates the vessel, under the Americans with Disabilities Act of 1990 (“ADA”) and California’s Unruh Civil Rights Act (“Unruh Act”) for failing to widen the vessel’s restroom door.

 

Catalina has not altered the restroom in the Jet Cat Express since it was built in 2001. According to Tony Ross, Catalina’s Vice President of Vessel Engineering, no passenger—other than Lopez—has ever reported any difficulty accessing the restroom. Ross also testified that the sliding “pocket door” creates a 26-inch-wide entryway when fully opened and the door cannot be widened because its handle is placed three inches from the outer edge of the door. According to Ross, there are two reasons why widening the restroom door is not readily achievable. First, “installing a different type of handle at the outer edge of the ‘pocket door’ . . . may make it more likely that passengers’ hands would be injured in the doorway when closing the door, due to the constant movement of the vessel.” Second, Catalina “cannot structurally alter the restroom without negatively impacting the stability of the vessel . . . [which] is a threat to the safety of navigation.” Specifically, Ross explained:

 

“[M]odifications and alterations to a vessel can negatively impact the stability of the vessel in many ways. For example, here, in order to expand the doorway of the disabledaccessible restroom on the Jet Cat Express, the structure of the restroom itself would need to be expanded which, in turn, would impact the structure of the adjoining restroom. As walls shift, the vessel’s overall weight changes. These changes may cause the overall center of gravity (“COG”) of the vessel to move, and the freeboard to be reduced. These two factors affect the stability of a vessel. . . . Simply put, as the COG moves and the amount of freeboard becomes lower, the vessel becomes more susceptible to unstable situations.”

 

In other words, Ross declared that widening the vessel’s restroom door is not readily achievable

 

The district court denied Lopez’s motion for summary judgment and instead granted summary judgment to Catalina on Lopez’s ADA claim. The district court also refused to exercise supplemental jurisdiction over Lopez’s Unruh Act claim and Lopez appealed.

 

II

Court’s Discussion of Who Bears the Burden of Proof at Summary Judgment with Respect to Whether an Architectural Barrier Is or Is Not Readily Achievable

 

  1. A passenger vessel like the vessel used by Lopez is a place of public accommodation. As such, the place of public accommodation has a duty to make sure that individuals with disabilities can fully enjoy the facilities.
  2. To prevail, Lopez has to show that: 1) he is a person with a disability; 2) Catalina is a private entity owning, leasing, or operating a place of public accommodation; and 3) Catalina discriminated against him by denying him public accommodation because of his disability.
  3. Neither party disputes that Lopez was a person with a disability and that Catalina is a place of public accommodation. The only question is whether Catalina discriminated against him by denying him public accommodations because of his disability. That is, whether any barriers interfered with Lopez’s ability to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of the facility.
  4. Discrimination under Title III of the ADA specifically includes failing to remove architectural barriers in existing facilities when that removal is readily achievable. See 42 U.S.C. §12182(b)(2)(A)(iv).
  5. Even if an entity can demonstrate that the removal of a barrier is not readily achievable, the entity is still liable under the ADA if it fails to make its goods, services, facility, privileges, advantages, or accommodations available through alternative methods so long as such methods are readily achievable. See 42 U.S.C. §12182(b)(2)(A)(v).
  6. Title III of the ADA is silent as to who bears the burden of proving at summary judgment that removal of an architectural barrier is or is not readily achievable.
  7. The 10th Circuit was the first Court of Appeals to articulate a two-part burden shifting framework for evaluating whether removing an architectural barrier is readily achievable under the ADA. Under that approach, the plaintiff must initially present evidence tending to show that the suggested method of barrier removal is readily achievable under the particular circumstances. If the plaintiff meets that initial burden, the defendant then bears the ultimate burden of persuasion that barrier removal is not readily achievable. This approach was adopted by the Eighth and 11th Circuits as well. The Second Circuit modified the test slightly by requiring a plaintiff to first articulate a plausible proposal for barrier removal and then recognizing that the defendant may counter the plaintiff’s showing by meeting its own burden of persuasion and establishing that the costs of plaintiff’s proposal would in fact exceed its benefits.
  8. Regardless of the jurisdiction, it is clear that the defendant bears the ultimate burden of proving the affirmative defense, but the initial burden of proof is on the plaintiff. Such an approach makes sense because a plaintiff must make clear what accommodation is needed and disability accommodations are so specific to the individual.
  9. Placing the initial burden of proof on the plaintiff to plausibly show how removal of an architectural barrier is readily achievable makes sense for several reasons: 1) 42 U.S.C. §§12182(b)(2)(A)(iv), (v) read together require the removal of an architectural barrier unless such removal is not readily achievable. Subsection (iv) starts by requiring defendants to remove architectural barriers where the removal is readily achievable. Subsection (v) then offers the defendant an opportunity to avoid liability by demonstrating that the removal of a barrier is not readily achievable. In other words, only if the plaintiff makes a plausible showing that the barrier removal is readily achievable, does the defendant then have to negate that showing by proving that the removal is not readily achievable; 2) burden shifting frameworks have been used in other sections of Title III of the ADA. For example, the same analysis has been used when dealing with the question of whether reasonable modifications to a place of public accommodation policies, practices, or procedures that allow individuals with disabilities to enjoy their goods and services are in order; 3) a burden shifting approach is also used in employment claims under Title I of the ADA when it comes to an employee seeking a reasonable accommodation. For example, in that situation, an employee must initially prove that the accommodation seems reasonable on its face. If that accommodation is reasonable on its face, then the defendants have to show circumstances demonstrating an undue hardship; and 4) disparate treatment cases also use a burden shifting approach.
  10. With respect to historical buildings, Ninth Circuit case law has held that the initial burden of proof is on the defendant, which makes sense when historical buildings are involved because a defendant is the one possessing the best understanding of the circumstances under which the historical designation might be threatened. The defendant is also in the best position to discuss the matter with the applicable historical commission to request an opinion on proposed methods of barriers removal. Those considerations do not apply outside of the historic building context.
  11. Even though every Circuit applies a burden shifting framework when addressing removal of architectural barriers at summary judgment, the initial burden on plaintiffs varies. In the 10th Circuit, a plaintiff must provide precise cost estimates and a specific design regarding their proposed accommodation. However, the Second Circuit only requires a plaintiff to articulate a plausible proposal for barrier removal, the costs of which on their face do not clearly exceed their benefits.
  12. The Second Circuit approach with respect to the initial burden of proof makes the most sense because it would be asking too much of plaintiff’s since defendants have the superior knowledge and information regarding their own facilities so as to allow them to quickly and easily counter implausible barrier removal proposals.
  13. 42 U.S.C. §12181(9)(A-D) sets forth four factors for determining whether an action is readily achievable. These factors are: (A) the nature and cost of the action needed; (B) the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility; (C) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and (D) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity.
  14. Under the approach with respect to the initial burden of proof being adopted in this decision, a plaintiff is not required to address in detail each of those factors in order to meet their initial burden of plausibly explaining why it is readily achievable to remove an architectural barrier. Instead, once a plaintiff makes a plausible showing that the requested accommodation is readily achievable, it is the defendant that bears the burden of convincing the court those four factors favor the defendant. Therefore, it makes sense for a plaintiff to submit as much evidence as possible pertaining to those four factors in their initial barrier removal proposal even if a plaintiff is not required to do so in order for the plaintiff to increase their chances of defeating a summary judgment motion.
  15. The lower court found that Lopez not only did not address the four factors, but he also did not meet his initial burden of plausibly showing how the costs of widening the restroom door does not exceed the benefits.

 

III

Court’s Discussion of How Even Assuming That Removal of The Architectural Barrier Is Not Readily Achievable, Alternative Solutions Still Need to Be Explored

 

  1. Even assuming that widening the restroom door was not readily achievable, Lopez can still prevail if he establishes that Catalina chose not to make the restroom available to him even though it could have done so through alternative methods without much difficulty or expense. See 42 U.S.C. §12182(b)(2)(A)(v).
  2. Lopez argued he was never offered a different wheelchair that would fit through the restroom’s door. However, he did testify that he rejected Catalina’s offer to transfer him from his wheelchair to the toilet because he is a big guy and has had bad experiences with being dropped with people trying to help him. It is unclear whether Lopez would have accepted an offer to use a narrower wheelchair or whether an offer to transfer him directly to the toilet would satisfy Catalina’s duty to offer alternative method to use the restroom. Finally, the District Court did not evaluate whether Catalina made the restroom available to Lopez through alternative methods. As a result, the District Court’s grant of summary judgment is reversed because it did not evaluate whether Catalina made the restroom available to Lopez through alternative methods. On remand, the district court has to focus on making that determination.

 

 

 

 

IV

Thoughts/Takeaways

 

  1. With respect to actual boats themselves, the Access Board doesn’t have accessibility regulations, though it has been thinking about doing so for some time. It does have regulations dealing with various other aspects of the boating experience.
  2. I do not recommend picking up a person from a wheelchair to carry them up the steps or put them in a bathroom as an alternative method of accessibility. It’s insulting, demeaning, and dangerous.
  3. Title III regulation do contain a list of priorities for a place of public accommodation when it comes to attacking barriers that are readily achievable with respect to removing them. See also this blog entry. Legal counsel can be very helpful when it comes to determining what barriers need to be remediated in what time order.
  4. The specific initial burden of proof for a plaintiff when it comes to alleging that removal of certain barriers are readily achievable varies from jurisdiction to jurisdiction.
  5. When it comes to Title III architectural barriers disputes, the ADAAG acts as a strict liability situation. That is, if the ADAAG has an applicable section and that particular section is not satisfied, liability is automatically placed on the defendant. In this case, there was no particular section applicable. So, the burden shifting questions come into play.
  6. The strict liability nature of the ADAAG combined with an applicable section almost always being available, means that you don’t see a lot of these cases discussing the readily achievable burden of proof, which might help explain why it took six years from this decision for me to blog on the set of issues presented by this case.
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This week is disability awareness week. I suppose every week is disability awareness week for me😊. In keeping with the spirit of the week, we have another blog entry.

 

Previously, we have blogged on whether the work product privilege is jeopardized by the use of AI. In that blog entry, here, we talked about two cases that seemingly came up with irreconcilable approaches. I am not sure if those cases can be reconciled even if one was pro se and the other wasn’t considering the language in the two decisions. Now, we have a third case dealing with a pro se plaintiff and the plaintiff’s use of AI. Does such use violate work product privilege? Does that question really depend upon the platform that the plaintiff uses? A case that answered both of those questions is our blog entry for the week, Morgan v. V2X Inc., here, decided by Magistrate Judge Braswell of the United States District Court for the District of Colorado on March 30, 2026. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning regarding whether work product protections apply to a pro se litigant’s use of AI; court’s reasoning for the need for a protective order expressly restricting the use of AI; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts

 

Plaintiff acting pro se, claimed he was subjected to a hostile work environment and eventually terminated based on his race and national origin in retaliation for protected activities, including opposing sexual harassment and engaging in protected whistleblowing activity. During the course of the litigation, plaintiff sought an insurance policy from the defendant. The defendant refused to supply it unless plaintiff disclosed his AI tool and submitted to certain restrictions on AI use. Both parties were using AI in connection with the litigation work, but disagreed on how AI should or should not be used in connection with confidential information as defined in a prior protective order.

 

II

Court’s Reasoning Regarding Whether Work Product Protections Apply to a Pro Se Litigant’s Use Of AI

 

  1. Federal Rules of Civil Procedure 26(b)(3)(A) protects documents and tangible things prepared in anticipation of litigation or for trial by or for another party or its representative.
  2. Federal Rules of Civil Procedure 26(b)(3)(B) says that mental impressions, conclusions, opinions, and legal theories, are content that may be embedded in such documents and tangible materials. It also recognizes that those materials may include mental impressions, conclusions, opinions, and legal theories.
  3. Federal Rules of Civil Procedure 26(b)(3)(B) adds another layer of protection to mental impressions and opinions when they come from a party’s attorney or other representative.
  4. Federal Rules of Civil Procedure 26(b)(3) refers to things prepared in anticipation of litigation by any party (emphasis in opinion), which is language that would seem to include material created by a party before retaining a lawyer as well as a party who never actually hires an attorney.
  5. A reading that the rule includes material created before retaining a lawyer is also reinforced by the history of the Rule. In particular, the Advisory Committee’s amendments were specifically designed to extend protection beyond attorney work product to materials prepared by or for a party (emphasis in opinion). Since then, courts routinely interpret the Rule to apply not just to attorney work product, but also to a pro se litigant’s work product as well.
  6. Courts have broadly interpreted the rule to protect not just litigation preparation materials, but also the mental impressions, opinions, and theories of parties (emphasis in opinion).
  7. While only attorneys and other representatives get the additional heightened protection under Federal Rules of Civil Procedure 26(b)(3)(B), a party’s own mental impressions are nevertheless generally protected under Federal Rules of Civil Procedure 26(b)(3).
  8. Pro se litigants are forced to act as both party and advocate simultaneously.
  9. For the first time in history, widespread access to powerful technology may make that dual role faced by pro se litigants surmountable.
  10. A reading of Federal Rules of Civil Procedure 26(b)(3) conditioning work product protection over AI materials and the involvement of counsel is not supported by the rule’s text and would further disadvantage unrepresented litigants.
  11. Since pro se litigants are held to the same standard as represented litigants, they should also be afforded the same protections.
  12. Heppner is distinguishable in at least two ways: 1) Heppner was a criminal matter; 2) Heppner involved a gap between the party and the attorney because the defendant acted entirely apart from his lawyer. No such gap exists when a pro se litigant is involved.
  13. While it is true that AI systems like ChatGPT, Claude, Gemini, and other AI widely available to the public, collect user data for training and other purposes, that does not eliminate all expectations of privacy or automatically waives protections.
  14. Nearly all electronic interaction today passes through third-party systems. Google, for example, host millions of accounts, and by extension, has access to millions of messages, emails, documents, videos, and more. Phones, computers, in-home smart devices, and other electronics, collect information about us to offer more customized services. That simply cannot mean that anyone with a Gmail account has forfeited all rights to confidentiality and privacy.
  15. Intermediary access does not alone extinguish privacy expectation.
  16. The Supreme Court has held that the mere fact that information is held by a third-party intermediary, does not automatically extinguish the reasonable expectation of privacy in that information.
  17. While the fourth amendment governs searches and seizures and has a completely different legal framework from the work-product doctrine, the principle involved in those cases is informative. That is, routing information through a third-party system does not forfeit all privacy.
  18. Unlike a general-purpose search engine, which passively returns results, many modern AI platforms are specifically designed and trained to engage. They invite candid and significant disclosure of information, including sensitive information. They also simulate empathy, foster trust, and interact in a way that feels genuine and intimate. Research confirms that people share personal and sensitive information with AI chat bots, often without appreciating what happens to that information once shared.
  19. The situation of a pro se litigant using AI to assist with their litigation preparation, closely resembles the kind of confidential, strategy-laden work product that Federal Rule Of Civil Procedure 26(b)(3) was designed to protect.
  20. Given how AI tools function, it is entirely reasonable for a person to expect some privacy and confidentiality when when interacting with these tools, even though they understand that a third-party is behind the AI collecting and storing their information.
  21. Work product protections are typically waived by disclosure to an adversary, or in circumstances substantially increasing the likelihood that an adversary will obtain the materials.
  22. Even though AI use technically discloses information to a third party, it is highly unlikely the information will fall into the hands of an adversary absent some legal process to compel it. Therefore, AI interactions do not automatically compromise work product protections.
  23. Defendant’s request for the name of the tool is legitimate and reasonable. If plaintiff has already submitted confidential information to an AI system, which it appears he has, the defendant is entitled to know which system it is.

 

III

Court’s Reasoning For The Need For A Protective Order Expressly Restricting The Use Of AI

 

  1. The suggested language submitted by both the plaintiff and the defendant for clarifying the protective order just doesn’t work for the court.
  2. The defendant’s suggested language is imperfect but makes more sense than the plaintiff’s.
  3. So, the language the court ultimately settled on is: “No party or authorized recipient may input, upload, or submit CONFIDENTIAL Information into any modern artificial intelligence platform, including any generative, analytical, or large language modelbased tool (“AI”), unless the AI provider is contractually prohibited from: (1) storing or using inputs to train or improve its model; and (2) disclosing inputs to any third party except where such disclosure is essential to facilitating delivery of the service. Where disclosure to a third party is essential to service delivery, any such third party shall be bound by obligations no less protective than those required by this Order. In addition, the AI provider must contractually afford the party or authorized recipient the ability to remove or delete all CONFIDENTIAL information upon request. A party intending to use AI that it contends meets these requirements must retain written documentation of these contractual protections.” (Emphasis in opinion).
  4. The court recognizes that practically speaking that the court’s language clarifying the use of AI in this case by the parties will bar the party from using most, if not all, mainstream low-to-no-cost AI to process confidential information. This type of restriction disadvantages pro se litigants, as enterprise tier AI account status having these requirements may be available only through organizational procurement processes, or at costs that a pro se litigant is unlikely to bear. Even so, the court can’t ignore the real risks associated with mainstream tools that persistently collect and store data and can compromise confidentiality. The clarifying language is not intended to leave the pro se plaintiff without the benefit of being able to use AI. Modern AI tools may be used in many ways that do not involve uploading confidential information, and nothing in the revised clarifying language restricts those uses.

 

IV

Thoughts/Takeaways

 

  1. Assuming the plaintiff is not happy with the clarification of the protective order and kicks it up to the District Judge, it will be interesting to see if the District Judge agrees with the scope of the protective order as clarified.
  2. It is absolutely true that AI can be used for information that is not confidential. One of the ways I use AI is to develop PowerPoint presentations (unfortunately, PowerPoint is not meaningfully accessible to voice dictation users), and it is pretty cool what AI can do in that situation. No confidential information is involved.
  3. For someone that is a litigant, especially a pro se litigant, figuring out what confidential information is in order to not put it into an AI system that is affordable, may be an extremely difficult thing to do. Privileges are not always the easiest thing to understand absent independent legal knowledge, even for lawyers. With regards to information submitted by another party, it is unclear how would a pro se litigant know whether that information is confidential, except for self-serving statements from the other party that the information is confidential. Even interpreting a protective order might be something difficult to do. In that situation, I could see a person asking AI to dumb down the order so that the pro se litigant could understand it. Of course, asking AI to dumb down that order would carry risks of its own, in that the dumbing down might change the meaning of the order.
  4. If not using enterprise systems, a pro se litigant with a protective order similar to this case, would definitely want to turn off the training feature of the AI if it is possible.
  5. One wonders whether the clarifying protective order goes further than the reasoning the court uses for holding the work product privilege applies to pro se litigants when using AI.
  6. What does any of this have to do with persons with disabilities? It does. People with disabilities are using AI in a variety of ways. For example, people with ADHD use AI to help them organize their thoughts. People with communication issues might use AI so that they can explain themselves better. I am sure that the list goes on and on. Also, I can’t tell you how many calls I get from people with disabilities that have meritorious disability discrimination cases, but simply cannot afford the kind of services I provide. AI is an equalizer but the enterprise systems do not come cheap. Further, I just read in the April 13, 2026, issue of the Wall Street Journal that there is a huge shortage of computer power for these AI systems, which means that the actual cost of using these AI systems is increasing all the time.
  7. If a litigant is not pro se, and the client uses AI to accommodate the disability, it makes a lot of sense for the attorney and the client to be quite explicit about how the AI is used and that the AI is being used to accommodate a disability. While a federal judge that is not part of an executive agency is free to do what they want in their courtroom with respect to discriminating or not against a person with a disability (with the exception of some limited rules pertaining to the hearing loss community), a lawyer has independent obligations under various provisions of the ADA to accommodate a client with a disability. So, that is a another reason for an attorney and their client to be explicit about AI use and whether it is being used as part of a reasonable accommodation process.
  8. It makes sense for an attorney to include in the retainer agreement how the client can expect AI to be used by the attorney. It also makes sense to discuss in that agreement the expectations for how a client might use AI.
  9. This case winds up on the side more closely resembling that work product privilege is waived when using AI than it does on the side of the case saying that work product privilege is not waived when using AI.
  10. Ultimately, the Supreme Court is going to have to step in. I have absolutely no idea what they might do when faced with issues of work-product and attorney-client privilege when using AI.
  11. These cases have bigger implications than just the evidentiary privilege. Journalists now are going big into AI. I read all the time about how journalists are using AI to expand the scope of their coverage. I am sure journalists are using AI in all kinds of other ways. Journalism protects its sources. Many of these journalists are freelance and may not be able to pay the freight for enterprise AI. Are they jeopardizing their sources by using Gen AI under the reasoning of this case and others like it?