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The ADA just had its 36th year anniversary. Happy anniversary!! In June, I got to visit the George H.W. Bush presidential library where his signing of the ADA is featured prominently. It was pretty neat to see that. Interestingly enough, many years ago when I visited the George W. Bush presidential library in Dallas, Texas, which is definitely worthwhile visiting, especially for its interactive components, there was nary a mention of his signing of the Americans with Disabilities Act Amendments Act. I don’t know if that has changed since then, but I did find it strange considering the impact of that law on the rights of persons with disabilities.

Turning to the blog entry for the week, the new eligibility rule put out by the NCAA for D 1 athletes raises all kinds of disability rights issues, as we discussed here. It’s only a matter of time before we see litigation on the matter. The case of the week, Ondekane v. NCAA, decided by the District Court of Douglas County, Nebraska on July 1, 2026, here, is the first step in what is likely to be much more litigation to follow. As usual, the blog entry is divided into categories and they are: facts; why Isaac Ondekane won on Nebraska state law claims; why Isaac Ondekane would win on ADA/Rehabilitation Act claims; and thought/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

Diego Pavia, a quarterback for Vanderbilt University, sued the NCAA regarding their rules on eligibility. He alleged that he should have more eligibility because he started at a junior college. Those efforts proved successful and resulted in a settlement. Ondekane (the plaintiff in this blog entry), had been granted the extra year to play basketball for the University of Nebraska Omaha per that settlement. However, he suffered a season-ending injury before that season began and was not able to participate. He sued the NCAA claiming that he was entitled to that extra year of eligibility already granted to him. The NCAA refused and even refused to engage in an individualized analysis to see if a waiver was justified. So, he brought suit.

 

II

Why Isaac Ondekane won on Nebraska State Law Claims

  1. While there is a rule of law saying that voluntary associations can get a lot of leeway with respect to their practices (noninterference rule), the NCAA is hardly such a voluntary association and numerous courts have held as much. The reasoning of the various courts for doing so include: 1) the NCAA is so dominant in its field that membership in a practical sense is not voluntary but economically necessary; 2) the athlete is not even a member of the Athletic Association. So, basic “freedom of association,” principles behind the rule giving voluntary associations lots of leeway is not present; 3) the athlete himself has no voice or bargaining power concerning the rules and regulations adopted by the Athletic Association because he is not a member. Even so, the athlete stand to be substantially affected and even damaged, by an association ruling declaring the athlete to be ineligible to participate in intercollegiate athletics. That in turn, means that the athlete may be deprived of the property right eligibility to participate in intercollegiate athletics; 4) this noninterference doctrine does not apply to challenges of students who are not members of an Athletic Association and yet have to rely on it for the opportunity to play collegiate sports. Those same students have significant financial interests in their eligibility.
  2. The Constitution and bylaws of the NCAA are binding agreements between the NCAA and its members for the benefit of student-athletes.
  3. Under Nebraska law, in order for not named parties to recover under a contract as a third-party beneficiary, the contract must appear by express stipulation whereby its reasonable intent is that the rights and interests of the unnamed parties were contemplated in that provision.
  4. Plaintiff identified several provisions of the NCAA bylaws that he asserts exist for his benefit in which he argued that the NCAA breached in refusing to apply them to his situation. In particular, plaintiff noted Bylaw 12.6.1.7.1 that establishes a waiver criteria: 1) when the student-athlete is deprived of the opportunity to participate in intercollegiate competition and one other season due to circumstances beyond the control of the student-athlete for the institution; 2) when the student-athlete is deprived of the opportunity to participate for more than one season in the athlete’s sport within the five-year period of eligibility or reasons beyond the control of the student-athlete for the institution; 3) that same bylaw defines “circumstances beyond control,” to include situations supported by contemporaneous medical documentation stating that a student-athlete is unable to participate in intercollegiate competition as a result of incapacitating physical or mental circumstances.
  5. Plaintiff also identified NCAA bylaw 12.6.4 entitled hardship waiver, which provides an additional year of competition for reasons of hardship. Hardship is further defined as an incapacity resulting from an injury or illness occurring: 1) the incapacitating injury or illness occurs in one of the four seasons of intercollegiate competition at any two-year or four-year collegiate institution or occurs after the first day of classes in the student-athlete’s senior year in high school; 2) the injury or illness occurs before the first contest or date of competition of the second half of the playing season that concludes with the NCAA championship in that sport and results in an capacity to compete for the remainder of that playing season; and 3) the injury or illness occurs when the student-athlete had not participated in more than three contests or dates of competition or 30% of the maximum number of contests or dates of completion of the playing season concluding with the NCAA championship for the applicable sport plus 1 contest or date of competition, whichever is greater.
  6. The parties do not dispute that plaintiff: 1) never redshirted; 2) was a member of the basketball roster and eligible to play in the 2025-26 season; 3) and was deprived of the ability to participate due to his ankle injury through no fault of his own.
  7. Plaintiff as an injured student-athlete was the intended beneficiary of the various provisions in the NCAA bylaws but received no meaningful consideration under them.
  8. Plaintiff also clearly met the requirements of the bylaws for an additional season.
  9. A fifth season of competition was already granted to the plaintiff.
  10. Nothing in the reasoning behind the extra year of eligibility granted to those suggests that the plaintiff should be barred from consideration under the waiver provisions in the NCAA bylaws meant to provide relief to injured athletes.
  11. Plaintiff was already granted a fifth season of competition and is not seeking an additional season through the litigation. Instead, he is seeking the ability to use a hardship waiver due to injury during the entire season for which he was eligible.
  12. Plaintiff was granted a fifth season of competition by the NCAA and only seeks the opportunity to apply for a hardship waiver after an early season-ending injury so that he can use the season he was already granted at a time when he is not injured.
  13. Plaintiff absent the Temporary Restraining Order will suffer irreparable harm in the following ways: 1) the 2026-27 intercollegiate basketball season is time sensitive, and the opportunity to compete at the division I level, once lost, cannot be recovered or remedy by monetary damages; 2) absent relief, plaintiff faces permanent and irreversible loss of his final season of intercollegiate competition; 3) defendant suffers from no concrete operational harm from one student-athlete competing under a court order for one season; 4) the Pavia waiver was the result of litigation from with the NCAA received the benefit of relief from ongoing litigation challenging the rule that allowed non-NCAA Junior college competition to count against years of NCAA eligibility, and it had the possibility of benefiting the plaintiff, since the plaintiff would have regained possibly two additional years of competition. While the NCAA gained a benefit from the settlement of that litigation, plaintiff received no benefit from the waiver even though he was in the class of intended beneficiaries; and 5) while the text of the Pavia waiver contains no language about accommodation for seriously injured athletes, it is not in the public interest for the NCAA to avoid litigation by issuing a narrow waiver, while making no provision for students seriously injured at the beginning of the extra season it granted.
  14. Nebraska has its own law dealing with name image and likeness and that law reflects a legislative judgment that student-athlete participation and economic interests warrants legal protections.

 

III

Why Isaac Ondekane Would Win on ADA/Rehabilitation Act Claims

  1. A person having to miss athletic eligibility because of an injury would most certainly have a disability as defined by the ADA. Remember, after the amendments to the ADA, a temporary disability may be a covered disability where it substantially limits a major life activity.
  2. A person has a disability if they have any of the following: 1) a physical or mental impairment that substantially limits one or more major life activities; 2) a record of such an impairment; for 3) is regarded as having such an impairment. 42 U.S.C. §12102(1). Ondekane clearly has a record of a disability per the ADA. Satisfying any one of these prongs is sufficient to be covered under the ADA.
  3. 28 C.F.R. §36.202(a), Denial of participation: states, “A public accommodation shall not subject an individual or class of individuals on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.”
  4. 28 C.F.R. §36.202(b), Participation in unequal benefit: states, “A public accommodation shall not afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals.”
  5. 28 C.F.R. § 36.204 Administrative methods: states, “A public accommodation shall not, directly or through contractual or other arrangements, utilize standards or criteria or methods of administration that have the effect of discriminating on the basis of disability, or that perpetuate the discrimination of others who are subject to common administrative control.” (Arguably, the set up of the D1 athlete and the NCAA creates a strong argument of common administrative control by the university or college). See, Matthews v. NCAA, 179 F. Supp. 2d 1209 (E.D. Wash. 2001).
  6. 28 C.F.R. §35.130(b)(3)(i) prohibits utilizing criteria that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability.
  7. 28 C.F.R. §35.130(b)(3)(ii) prohibits utilizing criteria that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities.
  8. 28 C.F.R. §35.130(b)(1)(v) prohibits a nonfederal governmental entity from providing significant assistance to an organization that discriminates on the basis of disability.
  9. 34 C.F.R. § 104.43 Treatment of students; general: states, “(a) No qualified handicapped student shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any academic, research, occupational training, housing, health insurance, counseling, financial aid, physical education, athletics (emphasis mine), recreation, transportation, other extracurricular, or other postsecondary education aid, benefits, or services to which this subpart applies.”
  10. 34 C.F.R. § 104.47(a)(1). Nonacademic services. States, “(a) Physical education and athletics. (1) In providing physical education courses and athletics and similar aid, benefits, or services to any of its students, a recipient to which this subpart applies may not discriminate on the basis of handicap. A recipient that offers physical education courses or that operates or sponsors intercollegiate (emphasis mine), club, or intramural athletics shall provide to qualified handicapped students an equal opportunity for participation in these activities.
  11. The final regulations found in Title 28 of the C.F.R. are final implementing regulations for Title III of the ADA, while the final regulations found in Title 34 of the C.F.R. mentioned in this blog entry are final implementing regulations for §504 of the Rehabilitation Act for post-secondary institutions. Since just about every college or university takes federal funds, a college or university is subject to both the ADA (Title II if public, and Title III per 42 U.S.C. §12181(7)(J) if a private entity), and to the Rehabilitation Act.

IV

Thoughts/Takeaways

  1. This case went off on Nebraska state law involving third-party beneficiaries. However, the applicable final regulations implementing Title II and Title III of the ADA make clear that this case would have been equally successful under either Title II (nonfederal governmental entities, which would include public places of higher education), and Title III (places of public accommodation, which includes private places of higher education), of the ADA.
  2. A person has a disability if they have any of the following: 1) a physical or mental impairment that substantially limits one or more major life activities; 2) a record of such an impairment; for 3) is regarded as having such an impairment. 42 U.S.C. §12102(1) Ondekane clearly has a record of such an impairment. Any one of these prongs is sufficient to be covered under the ADA.
  3. For over 25 years, the NCAA has been held to be a place of public accommodation under the ADA. See, Matthews v. NCAA, 179 F. Supp. 2d 1209 (E.D. Wash. 2001).
  4. The ADA per PGA Tour v. Martin, here, always requires an individualized analysis regardless of the Title of the ADA involved.
  5. Undoubtedly, athletes will be injured and not able to play a season before the actual season begins (excluding any exhibition games). Those athletes per the five-year rule, have five years eligibility. However, as a result of the disability they incur, they will not have five years of eligibility. Instead, the year(s) they are injured will be counted against them. So, like this case, the athlete with a record of a disability will only be seeking to be able to play the same number of years for their college as an athlete would play if they did not have a temporary disability that substantially limits one or more major life activities or a record of a disability.
  6. I don’t see how the NCAA has any choice but to bring back the medical waiver system into their new five-year rule. While one never knows, the applicable statutory and final implementing regulations for both the ADA and the Rehabilitation Act are pretty clear that an athlete should not be penalized for missing a season due to an injury.
  7. With respect to how the ADA looks at disability, remember the ADA does not care how the disability was obtained in the first place, rather it only cares if the disability exists.

 

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This week’s blog entry explores how an employer might go about bulletproofing just what are the essential functions of a job. The case for the week is In the Matter of Rachael Smelyansky v. New York State Office of Gen. Services, here, decided by the State of New York’s Appellate Division on June 11, 2026. As usual, the blog entry is divided into categories and they are: facts; why the defendant failed to establish the essential functions of petitioner’s job; why the defendant failed to establish an undue hardship; why petitioner’s retaliation claim should have survived summary judgment; and thought/takeaways. Of course, the reader is free to focus on any or all of the categories. The decision turns on New York State law but its approach is very similar to the ADA. Smelyansky even referred to the ADA constantly during all stages of the litigation, so this case is still worth discussing.

I

Facts

Petitioner was employed by OGS as a “Contract Management Specialist 1.” In July 2020, during the COVID-19 pandemic, OGS granted petitioner an accommodation permitting her to work remotely full time due to her anxiety related to COVID-19 exposure. OGS extended that accommodation at petitioner’s request several times through early 2023, consistent with its pandemic-era practice of liberally permitting telework for its entire workforce without regard to an employee’s disability. However, the agency never intended for those measures to be permanent.

By early 2023, OGS decided to curtail remote work throughout its ranks. It concluded that remote work hampered efficient collaboration and caused employees to become “siloed” within their roles; it found that training and collaboration were more effective in person. To promote more direct supervision, its new telecommuting policy required employees to be present on most days. It permitted less remote work in general and evaluated remote work accommodation requests on a case-by-case basis.

In April 2023, petitioner requested a further extension of her full-time remote work accommodation, citing COVID-19 related anxiety. Notably, OGS never disputed that petitioner’s anxiety constituted a disability as defined by the Human Rights Law or the Americans with Disabilities Act. In response, OGS purportedly considered petitioner’s position and job duties and concluded that full-time remote work would both prevent her from performing essential job functions and impose an undue hardship on the agency. In its formal determination dated May 16, 2023, OGS determined, among other things, that petitioner must be physically present to (1) obtain answers to “spontaneous process questions,” (2) benefit from “interpersonal exchange with coworkers” and (3) receive “direction from managers in real time.” Agency staff claimed that employees, including petitioner, communicated and collaborated better in person where they could share “non-verbal cues” and resolve issues face to face. OGS denied petitioner’s request to continue working remotely full time; as an alternative, OGS proposed a gradual return-to-work plan. Petitioner pursued an administrative appeal of the employer’s denial to the Reasonable Accommodation Appeals Review Committee, which upheld OGS’s determination. On May 24, 2023, petitioner reluctantly advised her supervisor that she would return to work under the modified schedule offered by OGS and selected specific dates in June 2023 to report to the office.

Following the denial of her administrative appeal, petitioner also applied for and received intermittent leave under the Family and Medical Leave Act (hereinafter FMLA) to care for an ailing family member. Petitioner and OGS disagreed on whether her proposed hybrid schedule required her to “make up” scheduled in-person days when she used FMLA leave instead of appearing in the office. OGS advised petitioner that “call[ing] out on each of your in-office days renders the key provision of the Reasonable Accommodation meaningless.” After petitioner failed to report to the workplace as directed in June 2023, OGS designated her “absent without leave” (hereinafter AWOL) and withheld her compensation.

In August 2023, petitioner submitted a new reasonable accommodation request based on depressive and anxiety disorders, unrelated to COVID-19, and again sought full-time telecommuting, citing updated medical documentation from her physician. Following more discussion, the parties agreed that petitioner would gradually return to work in person, with changes to her work environment and schedule. Petitioner returned with a modified schedule and a private office. According to respondents, she has performed satisfactorily, even receiving a promotion during this litigation.

II

Why the Defendant Failed to Establish the Essential Functions of Petitioner’s Job

  1. Establishing that defendant unlawfully denied a reasonable accommodation request means demonstrating: 1) petitioner is an individual with a statutory defined disability; 2) defendant had notice of that disability; and 3) petitioner with or without reasonable accommodations could perform the essential functions of her job.
  2. Whether a task constitutes an essential function depends upon the totality of the circumstances, including: 1) the employer’s judgment; 2) written job descriptions; 3) the amount of time spent on the job performing the function; 4) the consequences of not requiring the employee to perform the function; 5) the provisions of any collective bargaining agreement; 6) work experience of past employees in the job; and 7) the work experience of current employees in similar jobs.
  3. A good faith interactive process is the first step in providing a reasonable accommodation. Such a process assesses the needs of the individual with a disability and the reasonableness of the accommodation requested.
  4. The essential functions of the position need to be part of the interactive process that the law requires, not a unilateral employer decision cloaked by business judgment.
  5. The employer’s individualized assessment (emphasis in opinion), of the employee’s essential duties and the feasibility of the requested accommodation is a defining feature of disability rights law, as it represents the key mechanism for facilitating the integration of employees with disabilities into the workplace.
  6. Defendant failed to establish the essential functions of the position.
  7. In order to avoid unfounded reliance on uninformed assumptions, the identification of the essential functions of the job requires a fact specific inquiry into both the employer’s description of the job and how the job is actually performed in practice.
  8. The employer’s May 16, 2023 denial letter and its internal emails preceding it, describe petitioner’s duty vaguely and parroted agencywide operational concerns, all of which shows defendant’s failure to conduct the required “highly fact specific inquiry,” (emphasis in opinion), into the actual functioning and circumstances of the particular enterprise involved.
  9. While an employer’s judgment gets consideration, it is not conclusive.
  10. With respect to the essential functions of petitioner’s job, the defendant did not identify the following: 1) the actual tasks for the amount of time spent performing them; 2) whether those tasks require petitioner’s in person presence; 3) the consequences of performing those tasks remotely; 4) the tasks that could be performed by others or whether petitioner supervises other employees.
  11. Defendant also did not submit an accurate written job description, which would be evidence regarding the work experience of employees in the same or similar positions or proof bearing on other relevant factors.
  12. Defendant failed to show that it considered petitioner’s major tasks, assignments and activities as detailed in her past performance evaluations.
  13. Characterization of certain basic communication and collaboration functions as “essential,” is not sufficient to satisfy defendant’s prima facie burden, particularly where its analysis was not tailored to petitioner’s job description and arguably applied to all employees working in diverse jobs.
  14. Defendant did not address which, if any, of petitioner’s duties had to be performed in person.
  15. Absent from the record is any assessment that the petitioner was unable to perform her duties remotely or which particular task assigned to her mandated attendance in the office. In fact, the record reflects exactly the opposite, as petitioner worked effectively from home for three years pursuant to prior accommodations.
  16. While defendant acted within the legitimate authority to cut back on its flexible pandemic error remote work policy, that did not remove the obligation for the defendant to conduct an individualized assessment of petitioner’s ability to work remotely in order to accommodate her disability after it resumed primarily in person operations.

 

III

Why the Defendant Failed to Establish an Undue Hardship

  1. When determining whether or not accommodation is an undue hardship, any relevant factor gets considered, including those set forth in New York Executive Law §296(3)(b), as well as: 1) the size of the business measured by the size of the workforce and budget; 2) the type of operation in which the business is engaged; and 3) the nature and cost of the requested accommodation. Defendant did not particularize any of these factors relying instead on generalized claims about the aggregate impact of remote work on its nondisabled employees.
  2. Defendant conceded that petitioner’s business unit performed limited tasks requiring an in person response and that many members of the procurement services staff have been working from home successfully.
  3. Petitioner’s supervisor characterized her as trainable and coachable and noted that she participated in team collaboration and delivered on work obligations and expectations all while working remotely.
  4. Defendant did not identify any specific hardship arising from continuing petitioner’s work from home arrangement.
  5. While defendant engaged in the interactive process in good faith, it’s undue hardship assertions were insufficient to establish petitioner’s essential duties or undue hardship as a matter of law.
  6. Petitioner created a triable question of fact by submitting evidence that her requested accommodation would be effective, including previous satisfactory performance evaluations, her direct supervisor’s opinion that full-time telecommuting would compatible with petitioner’s job duties, and internal emails that candidly minimized the impact of granting her the requested accommodation.
  7. Defendant confuses its preferred reasonable workplace goals with petitioner’s essential job functions and then cited the impact of remote work on its aggregate workforce. Such an approach does not work when it comes to establishing an undue hardship.

 

IV

Why Petitioner’s Retaliation Claim Should Have Survived Summary Judgment

  1. In order to establish that it is entitled to summary judgment in retaliation case, defendant must demonstrate that the petitioner cannot make out a prima facie claim of retaliation or, that it offered legitimate, non-retaliatory reasons for the challenged actions, and there exists no triable issue of fact as to whether the agency’s explanations were pretextual.
  2. Viewing the evidence in the light most favorable to petitioner, and absent evidentiary proof about the parties conflicting interpretations of the modified accommodation at issue, whether defendant’s stated reason for determining the petitioner was absent without leave and withholding or compensation was pretextual, presents a question of fact.

 

V

Thoughts/Takeaways

  1. I am not a New York licensed attorney.
  2. Keep job descriptions current and based upon what is actually happening on a day-to-day basis.
  3. In a footnote, the court mentioned that the petitioner references the ADA throughout the factual allegations of her petition and in her appellate brief. However, this case goes off entirely under the New York Human Rights Law. This does illustrate just how similar federal and state laws can be when it comes to disability discrimination in employment (this court refers to the EEOC factors for determining essential functions on more than one occasion even if it doesn’t explicitly say it is doing that). So, always be sure to check your state laws when you are dealing with disability discrimination, whether it be employment or otherwise.
  4. Courts can vary widely in terms of how much discretion they give employers when it comes to how they view what the essential functions of the job are. This particular court gives very little leeway to the employer.
  5. Individualized analysis is everything. Individualized analysis refers to both assessing the situation in terms of the disability and what reasonable accommodation might work. It also means focusing on the particular individual’s essential functions of the job. What is happening on the ground with respect to the employee’s essential functions of the job is absolutely the key.
  6. General assertions about essential functions do not fly.
  7. While an employer is free to force people back into the office, the fact that the employee did the essential functions of the job for years is probative evidence the essential functions of the job can be done remotely.
  8. The court’s reasoning gives an excellent roadmap as to how an employer might ensure a successful otherwise qualified/qualified defense (i.e. a person could not do the essential functions of the job with or without reasonable accommodations). The key is an individualized analysis of the essential functions of the particular job the employee has. It is also means an individualized analysis of what reasonable accommodation might work for the employee with disability. Remember, no two disabilities are the same even the same ones. Finally, backing up undue hardship with specific evidence rather than relying on general assertions also matters.
  9. The court’s reasoning and its application of New York law closely resembles the ADA in its approach. So, it is logical to believe that plaintiff’s lawyers will use this case as a guideline for arguing that an employer simply did not bulletproof its essential functions of the job. Also, look for plaintiff’s lawyers to refer to this court’s discussion of how remote work successfully done in the past matters.
  10. Robin Shea in one of her recent blog entries, here, has some excellent thoughts on how an employer should deal with an employee that sues it while remaining an employee. Robin’s blog entry is well worth a read.
  11. As I mentioned in this blog entry, I really like the Samper case for determining whether remote work is in order for reasonable accommodation. As I discussed in that blog entry, the pandemic has meant that a couple of those criteria need to be modified slightly.
  12. I am not a New York licensed attorney.
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Before getting started on the blog entry of the week, I wanted to pass along that the Federal Bar Association has announced its award recipients for this year. I am quite honored to be the recipient of the Sarah T. Hughes Civil Rights Award (the history of that award can be found here). I pick up the award in September at the national convention in Richmond, Virginia. I also have to make a kind of a speech that I don’t typically make, which should be interesting. I do want to thank all the people along the way that have made this possible, including: my parents, my wife of 25 years, my daughter, as well as the incredible openness of numerous people involved with the Federal Bar Association for encouraging and then wanting more and more of the disability perspective. The people are too numerous to list, but I want to list a few and sincerely apologize to anyone left off. The people at the FBA include the wonderful staff from the very top on down. It also includes tremendous people that I have had the opportunity to work with on various committees, including but not limited to: Tara Norgard, Lisa Kpor, Katherine Earle Yanes (who just happens to be the 2026 FBA Kintner award winner), Bryan Bannon, Robin Wagner, Kyle Kaiser, Eric Foley, Kate Marples Simpson, Wylie Stecklow (a previous Sarah T. Hughes award winner), Stephen  J. Haedicke, Lauren DiMartino, the Hon. John L. Badalamenti, all the members of the Federal Bar Association Civil Rights Board and Diversity and Inclusion Board that I’ve had the privilege to work with over time, as well as anybody else from anywhere that has gone along with this journey with me. Thank you and am truly honored.

 

Turning to the blog entry of the week, I really struggled with what to blog on. I came very close to blogging on a Second Circuit, Bergin v. New York State Court System, decision that added a motive requirement to the prima facie case when it comes to religious failure to accommodate cases. My thinking was the lack of ADA knowledge was a possible explanation for the holding. However, when I dug deeper, there are enough differences between the Supreme Court decisions dealing with religious accommodation matters v. the ADA statutory and common law interpretation in failure to accommodate cases, that made the analogy not work. So, I had to move on to something else. The case of the day is Klimek v. CentraCare Health System, a unanimous published decision decided on June 15, 2026, from the Eighth Circuit, here. As usual, the blog entry is divided into categories and they are: facts; plaintiff was an otherwise qualified individual with a disability; defendant didn’t persuasively make the case that remote work was an essential function of the job; plaintiff’s failure to accommodate claim should not have resulted in summary judgment for the defendant; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

Christine Klimek is a registered nurse who worked for CentraCare between 2008 and 2021. In 2010, she suffered a workplace-related injury and subsequently developed Complex Regional Pain Syndrome, which is also known as Reflex Sympathetic Dystrophy (“RSD”). According to Klimek, her RSD causes vertigo, nausea, dry heaves, chronic pain throughout her body, and a disproportionate pain response to minor injuries. It also affects her cognitive abilities, mood, sleep, and appetite. In 2016, CentraCare instituted a policy requiring all employees to get the measles, mumps, and rubella (“MMR”) vaccine. Klimek applied for a medical exemption, accompanied by a letter from her doctor supporting her request. The letter stated that “a painful stimulus like a vaccine can flare up” Klimek’s RSD, and given Klimek’s condition, “the risks of a vaccine seem to outweigh the benefits.” Based on this information, CentraCare concluded Klimek met “the criteria for a permanent medical exemption,” and should not have “live vaccinations” while being treated for RSD.

In 2021, Klimek accepted a position as a clinical documentation integrity specialist, which involved coding diagnoses and preparing medical records. She performed this work remotely from home 100% of the time. That same year, CentraCare implemented a new policy requiring the COVID-19 vaccination for every employee unless the employee obtained a medical or religious exemption. Klimek applied for a medical exemption, stating she was currently “medically exempt from any/all live or attenuated vaccinations related to a CentraCare workrelated injury resulting in a documented permanent disability and a rare condition, Chronic Regional Pain Syndrome/Reflex Sympathetic Dystrophy.” She added, “This exemption has been documented and filed in my chart since August 2016. My condition is lifelong and I manage the negative effects on a daily basis.” Klimek’s provider also completed a portion of the form, stating: “Patient has RSD as well as documentation that explains her reaction to all vaccines. It is not recommended that -3- she get any vaccines due to her RSD.” Klimek also attached a separate letter from her medical provider.

In October 2021, plaintiff’s exemption request was denied without explanation, and she was advised she would be placed on unpaid administrative leave unless she received the vaccine. Plaintiff’s employer sent a letter to the plaintiff saying there was a deadline for providing relevant medical information for employees who had their exemption request denied. Plaintiff submitted that documentation within that deadline. However, the employer again denied her request without explanation and informed her that if she was not vaccinated before December 15 of 2021, she would be placed on unpaid leave. On December 3, 2021, plaintiff and her employer’s incident commander for the Covid-19 response met by teleconference to discuss the denial of plaintiff’s accommodation request. At that teleconference the incident commander said that the vaccine would be a requirement for ongoing employment with the defendant and that 100% remote work was not part of the equation for the position she had and given the location she was at. On December 16, 2021, plaintiff’s employer placed her on an involuntary unpaid leave of absence because she was unvaccinated thereby effectively ending her employment.

 

II

Plaintiff Was an Otherwise Qualified Individual with a Disability

  1. To establish a prima facie case of discrimination based on disability, plaintiff had to show: 1) she is disabled per the ADA; 2) she is a qualified person under the ADA; and 3) she suffered an adverse employment decision because of a disability. Even thin evidence creating a disputed issue of material fact is sufficient. So, the court was correct to hold that a genuine issue of material fact existed as to whether plaintiff’s condition qualified as a disability under the ADA.
  2. An employer disputing a plaintiff’s claim that she can perform the essential job functions has to put forth evidence establishing those functions.
  3. Adding the label of “policy,” to a task does not render it an essential job function, and a duty does not become essential simply by the employer’s say so.
  4. When deciding whether a duty is an essential job function, an employer’s judgment, while probative, is merely evidence and not conclusive.
  5. Defendant offered no explanation as to how an accommodation in the form of a medical exemption from a vaccine requirement could itself be an essential job function. That is, a qualified individual is a person who with or without reasonable accommodation can perform the essential functions of the job they hold or desire. So, an accommodation cannot also be an essential function. Holding otherwise conflates two concepts contrary to the plain text of the ADA. That is, exemption from vaccination requirements are a type of accommodation and not an essential job function.
  6. Defendant’s argument that the plaintiff spent some time in the community has nothing to do with whether the plaintiff was a qualified individual. An unvaccinated employee spending her free time active in the community performing regular life tasks, such as buying groceries or taking a walk, is performing tasks entirely unrelated to her employment.
  7. The essential function requirement of the ADA focuses on the desired result rather than on the means of accomplishing that result.

 

III

Defendant Didn’t Persuasively Make the Case That Remote Work Was an Essential Function of the Job

  1. An essential function of the job is a fundamental duty of the employment position, which varies according to the job.
  2. Evidence to consider in determining an essential function of the job includes: 1) the employer’s judgment as to what functions are essential; 2) written job description prepared before advertising or interviewing applicants for the job; 3) the amount of time spent on the job performing the function; 4) the consequences of not requiring the employee to perform the function; and 5) the current work experience of employees and similar jobs.
  3. Viewing the evidence in the light most favorable to the plaintiff, plaintiff showed that her position involved no physical patient care and that she was working entirely from home electronically preparing records.
  4. Plaintiff’s job description does not indicate that in person work was contemplated. In the position’s “Core Functions,” duties included such things as identifying documentation issues and collecting data. Nothing in the job description related to physical care of patients. Defendant also failed to adequately show that there were any negative consequences of not requiring the plaintiff to perform in person patient care.

 

IV

Plaintiff’s Failure to Accommodate Claim Should Not Have Resulted in Summary Judgment for The Defendant

  1. Surviving summary judgment in a failure to accommodate case means a plaintiff has the burden of showing: 1) the employer knew of her disability; 2) plaintiff requested an accommodation or assistance for her disability; 3) defendant did not make a good-faith effort to assist plaintiff in seeking an accommodation; and 4) plaintiff could have been reasonably accommodated but for the employer’s lack of good faith.
  2. To trigger the interactive process, the employee must provide the employer with enough information so that the employer knows of the disability and the request for an accommodation.
  3. Defendant knew about plaintiff’s impairment because she developed her medical condition after suffering a workplace injury. Defendant has also received all of her medical records from the date of the injury until approximately 2014. Further, defendant’s workers compensation insurance covered plaintiff’s recovery and surgery costs.
  4. The defendant also received letters from plaintiff’s treating doctor advising them of her condition and that since vaccines could cause a flareup of that condition, plaintiff should refrain from accepting the MMR vaccination to avoid possible complications. In response, the defendant determined that plaintiff met the criteria for a permanent medical exemption. Every year after that, defendant contacted plaintiff during the influenza season regarding her medical exemption reminding her to complete a flu educational module and wear a mask.
  5. Defendant’s Covid-19 policy required employees seeking exemption to provide two pieces of information, which she did. Defendant never requested further documentation after receiving plaintiff’s documentation. For that matter, it didn’t give plaintiff any reason why she was denied a medical exemption.
  6. Defendant was aware of plaintiff’s medical history based on prior and ongoing communications about her condition that prevented her from receiving a flu vaccination.
  7. Defendants have previously granted plaintiff a permanent medical exemption for at least some vaccines and had knowledge of her workplace injury, and had also received her providers assessments. If the defendant needed more information beyond this, it should have requested it but did not do so.
  8. Once an employer is made aware of a legitimate request for an accommodation, the employer must make a reasonable effort to determine the appropriate accommodation.
  9. Defendant admitted that it did not consider plaintiff’s work from home status or the type of work she performed when denying her request. As such, that calls into question whether the defendant made a reasonable effort to determine whether an appropriate accommodation for plaintiff’s disability could be found.
  10. When the plaintiff questioned the incident commander on whether the vaccine would be a requirement for ongoing employment with the defendant, she insisted she had a right to continue working from home 100% remotely.
  11. Where an employer’s directive eliminates the possibility of an accommodation, it is no longer participating in good faith to assist an employee in trying to identify a suitable accommodation.
  12. A factfinder looking at the evidence could find it sufficient to draw a reasonable inference that the defendant blew up the interactive process. In other words, given that the defendant twice denied plaintiff’s exemption request without explanation, a jury could find that the incident commander’s offer to speak with plaintiff’s providers was not an attempt to find clarity or search for suitable accommodation because the defendant had already made up its mind thereby leaving the plaintiff with the choice of either vaccination or termination.
  13. Plaintiff was already working from home unvaccinated and had been doing so for months. She did not work with patients or in the presence of coworkers, and her requested accommodation was to merely continue working in the exact same capacity.
  14. Evidence in the record indicates an available reasonable accommodation under defendant’s own policies included an unvaccinated employee working from home.
  15. Once a plaintiff makes the facial showing that reasonable accommodations were possible, the burden shifts to the employer to prove that it was unable to accommodate the employee. Doing that means the employer has to show special specific circumstances demonstrating undue hardship. An undue hardship cannot be proved by hypothetical facts and must be sufficiently real rather than speculative.

 

V

Thoughts/Takeaways

 

  1. An employer labeling something a policy does not turn it into an essential function of the job.
  2. An employer’s judgment is merely evidence and not conclusive. That said, check your jurisdiction on this as jurisdictions and individual judges can vary quite a bit in terms of how much leeway they give an employer with respect to what the employer says are the essential functions of a job.
  3. An accommodation cannot be an essential job function. They are two entirely different things.
  4. Time spent on community activities that people typically spend time on and are unrelated to the job does not jeopardize a person’s qualified status under the ADA.
  5. Essential functions of the job focus on the desired result rather than on the means of accomplishing that result. I can’t tell you how often I have seen employers run themselves into problems quite literally for decades now because they don’t understand this particular point.
  6. Nothing in the job description nor in the way plaintiff historically performed the work suggested that remote work was an essential function of the job. So, up-to-date job description reflecting the reality of what the job actually does on a day-to-day basis is critical.
  7. There are a variety of ways how court talk about what needs to be shown in order to trigger the interactive process. They all essentially amount to something very close to what this court says, which is a plaintiff has to give the employer enough information so the employer knows of the disability and the request for an accommodation.
  8. The decision is published and therefore, is precedential.
  9. Make sure corporate policy is followed.
  10. With respect to how the interactive process works, see here.
  11. Where an employer issued a directive eliminating the possibility of an accommodation, it blows up the interactive process.
  12. Check your jurisdiction as to how it deals with the question of the burdens on an employer once a plaintiff makes a facial showing that reasonable accommodation were possible. Courts can be all over the place on that.
  13. As a matter of preventive law, when it comes to trying to determine if remote work would be a reasonable accommodation, I really like the case that we talked about With the advent of remote work, I do think the criteria set forth in that case have to be modified slightly so what you want to be looking at is: 1) the employee must work in person as part of the team; 2) the job requires in person face-to-face interaction with clients and other employees; or 3) the job requires the employee to work with items and equipment that are on site.

 

Happy 36th anniversary to the ADA!!!!!!!!!!!!!!!!!!!!!!!

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As I have covered previously, here, it’s a bit of the wild west as to the way forward when it comes to emotional support animals. HUD still doesn’t have anything, but if you plug in assistance animals into the search engine on their website, you get what appears as discussed below. The search engine is an AI bot. My thanks to individuals on the AHEAD (Association on Higher Education and Disabilities), listserv for alerting me to this and raising other related concerns. My thoughts are below. The cutting and pasting is mine from the inquiry I made. As for organization of this blog entry, whenever you see “My answer:,” what immediately follows after that are my thoughts. Anything else is the HUD AI bot.

 

Under the Fair Housing Act, a housing provider — including a landlord in a “no pets” building — must allow an assistance animal as a reasonable accommodation when a resident or applicant has a disability and the animal is connected to that disability.

 

My answer: I have no problem with this.

 

Here is what that means in practice.

What counts as an assistance animal

An assistance animal is not a pet. It includes trained service animals (such as a guide dog) and also emotional support animals, therapy animals, and companion animals — any animal that provides disability-related assistance or emotional support. There is no requirement that the animal be professionally trained or certified.

 

My answer: This is an AI Bot. Even with specific legal focused Generative AI, I have seen the AI get the law wrong or stretch cited authority to mean things they simply can’t mean. An AI response is not the same thing as a final regulation. It is also not the same thing as a guidance or circular, or even an internal memorandum, or a technical assistance memorandum for that matter. You definitely want to be getting legal advice when it comes to ESAs (emotional support animals), in housing and how you want to proceed going forward. I agree that there is no requirement that the animal be professionally trained, service animal or otherwise. There is also no certification for service animals in the United States. Finally, assuming “assistance animal,” is the term being used, it is not accurate to say that the various kinds of animals falling within the category of “assistance animal,” get the same legal protections.

 

What you can be asked

A housing provider may ask two questions: Does the person have a disability? Is there a disability-related need for the animal? They cannot require documentation if the disability and need are obvious. They cannot impose a pet deposit or pet fee for an assistance animal.

 

My answer: If the HUD bot is utilizing the DOJ approach, it gets it wrong. The DOJ regulations specifically talk about two inquiries and not two questions. See here and here. With respect to documentation, if it is a service animal, and you get positive answers to both inquiries, you can’t even request documentation. The “obvious,” reference is a suggestion the EEOC regulations might be in play. The EEOC regulations do talk about getting documentation for reasonable accommodation requests, with the amount of documentation that can be requested depending on how obvious the disability is.

 

How to request the accommodation

Ask your housing provider in writing. State that you have a disability, that the animal is needed because of that disability, and that you are requesting a reasonable accommodation. You do not need to disclose your specific diagnosis.

 

My answer: Nothing in either the EEOC or DOJ final regulations dealing with reasonable accommodations (EEOC), for reasonable modifications (DOJ), or for service animals (DOJ), talk about how you have to make the request in writing. For that matter, HUD and DOJ have never insisted on this, at least going back to 2004. The request can be in writing or oral. Also, the next question becomes as to when the request is sufficient. Preventive law demands a request is sufficient the instant the housing provider knows an accommodation might be necessary regardless of how it is phrased or whether it is in writing.

If a request is denied

A denial may be a Fair Housing Act violation. To file a complaint, contact HUD’s Office of Fair Housing and Equal Opportunity at 1-800-669-9777 or file online at https://www.hud.gov/reporthousingdiscrimination.

 

My answer: A denial of what? Are we talking about service animals, emotional support animals, therapy animals, etc. The particular kind of animal involved might make all the difference in the world as to whether there is a violation of the FHA are not.

What types of assistance animals are covered under HUD’s rules?

This is an important area where HUD’s policy has recently changed. Here is what you need to know as of May 2026.

What changed

On May 22, 2026, HUD rescinded its prior assistance animal guidance (including the 2020 guidance, FHEO-2020-01) and issued a new enforcement memorandum.

 

My answer: The AI bot is just wrong that the recent HUD action is a new enforcement memorandum. Instead, it is an internal memorandum put out by HUD. Two very different concepts with very different treatment by courts.

 

Under the new policy, HUD’s Office of Fair Housing and Equal Opportunity (FHEO) will generally find a Fair Housing Act violation only when a housing provider denies an animal that has been individually trained to perform work or tasks related to a person’s disability — that is, a trained service animal.

My answer: I agree.

 

What this means for emotional support animals

Under the previous framework, untrained emotional support animals (ESAs) — animals that provide comfort or companionship but are not trained to perform specific tasks — were treated as assistance animals requiring reasonable accommodation. The new guidance removes that presumption. FHEO will generally not find a Fair Housing Act violation when a housing provider denies an untrained ESA. New complaints involving ESAs will generally receive a no-cause finding, and open cases are being reviewed individually.

 

My answer: This is consistent with HUD’s internal memorandum.

 

What has not changed

This is an enforcement policy shift, not a change in the Fair Housing Act itself.

 

My answer: The FHA says nothing about animals in the statute. It does have two final regulations specifically related to animals. For private housing, HUD uses the example of a guide dog for the blind. In that regulation, it specifically uses the term “example,” here. For public housing, the terminology is very different, here. If you look at the history behind the public housing regulation discussed in some cases, such as this one, you will find that particular regulation was meant to include emotional support animals. How a court will interpret the public housing regulation after the pulling of the guidances and in light of Loper Bright, is unclear. With respect to private housing, it is quite a reach to argue emotional support animals fall within the scope of a regulation that gives an example of a service animal.

 

The law remains in place, and private lawsuits under the FHA are still possible. More importantly, many states and localities have their own fair housing laws that provide broader protections for ESAs — those protections are unaffected by HUD’s federal enforcement guidance.

 

My Answer: This is absolutely the case. Many states have incorporated emotional support animals into their statutes. Some states even essentially adopted prior HUD guidances and put them into their statutes. I know of several states with emotional support animals specifically in their statutes. Illinois even has a statutory scheme dealing with it, which we discussed here. So, state laws are super important when it comes to emotional support animals.

 

Three things worth knowing going forward

  1. HUD has indicated it intends to pursue formal rulemaking to codify these standards. Watch the Federal Register at https://www.federalregister.gov for proposed rules.

 

My answer: See this blog entry. It is going to be very interesting whether HUD adopts the DOJ approach or the EEOC approach or some combination of the two. The combination approach is what this AI bot is doing.

 

  1. If your state has a fair housing law covering ESAs, your state’s civil rights or housing agency is the right contact.

 

My Answer: I completely agree with this. If your state has specific emotional support animal statutes and/or regulations, those are going to be the controlling authority when it comes to emotional support animals.

 

Can a landlord ask for documentation proving I need an assistance animal?

The answer depends on whether your disability and need for the animal are readily apparent — and on the type of animal involved.

 

My answer: There is nothing in the FHA, or its final implementing regulations, suggesting this is the way it works. The “readily apparent,” is clearly being borrowed from DOJ service animal regulations.

 

 

 

Here is how it works under current rules.

When no documentation can be required

A landlord cannot ask for documentation if both your disability and your disability-related need for the animal are obvious. A person using a trained guide dog, for example, does not owe any explanation.

My answer: This answer is borrowing from the EEOC approach. It is possible that HUD will take this approach or combine it with the DOJ approach.

 

When documentation can be requested

If either the disability or the connection between the animal and the disability is not apparent, a landlord may ask for reliable documentation from a licensed healthcare provider — a doctor, therapist, or similar professional — confirming that you have a disability and that the animal is needed because of it.

 

My answer: This is sort of an EEOC approach. Interesting that the term used is “reliable,” and not “reasonable.” If you are going to go with the EEOC approach, do not go on fishing expeditions. Only seek enough information to confirm the request is what is seems to be.

 

What a landlord may NOT require:

  • Formal certification or registration of the animal (no such official registry exists)
  • Proof of specialized training for the animal

 

My answer: I completely agree.

  • Documentation purchased from an internet “ESA letter” website — HUD has specifically cautioned that these are not reliable

 

My answer: This is absolutely strange. Why would a landlord require documentation purchased from an unreliable website?

 

What this means under HUD’s current enforcement policy

As noted in our earlier exchange, HUD’s May 2026 guidance limits federal Fair Housing Act enforcement to trained service animals. For a trained service animal, a landlord may ask only two things: is this person disabled, and is this animal trained to perform a task related to that disability.

My answer: As mentioned above, it looks like this is adopting the DOJ approach. The DOJ approach is focused on two inquiries and not on two questions. The confusion comes from looking at the DOJ final implementing regulations v. a DOJ frequently asked questions document. Of course, the final implementing regulations (two inquiries), are going to prevail over any frequently asked questions document suggesting otherwise.

 

They cannot demand detailed medical records or a specific diagnosis.

For untrained emotional support animals, FHEO will generally not pursue a federal complaint if a landlord denies the animal — though state and local fair housing laws may still apply and offer broader protections.

My answer: Agreed.

What documentation is generally acceptable to support an assistance animal request?

Based on what we have already covered in this conversation, here is a clear picture of what documentation generally holds up.

What works

The standard that has consistently applied under HUD’s framework is a letter or written statement from a licensed healthcare provider who has personal knowledge of your condition. That includes:

  • A physician, psychiatrist, or psychologist
  • A licensed clinical social worker or therapist
  • A licensed counselor or other mental health professional

The letter should confirm three things: that you have a disability, that you have a disability-related need for the animal, and that there is a connection between the two. It does not need to disclose your specific diagnosis, and it does not need to describe the animal’s training in detail.

 

My answer: All kinds of problems here. First, it talks about documentation supporting an assistance animal. However, an assistance animal is being defined by the AI bot as it was in past HUD guidances where it could refer to both a service animal and an emotional support animal. Especially with the pulling of the guidances, you now get two very different places with respect to the kind of documentation you can request. The kind of documentation you can request will also depend upon whether the DOJ approach or the EEOC approach is being used. The AI bot is combining both approaches without any authority to do so. Second, if the EEOC approach is being used, then I agree that this kind of documentation would be helpful.

 

What does not work

HUD has specifically warned that the following are not considered reliable documentation:

  • Certificates, registrations, or “official” ID cards purchased from internet websites
  • Generic letters sold by online services with no genuine provider-patient relationship behind them
  • Any document that simply declares an animal to be a “certified” or “registered” service animal — no such official federal registry exists

 

My answer: I agree.

 

A few practical points

The documentation should come from a provider who actually knows you and your situation, not one who issued a letter after a brief online questionnaire. A landlord may verify that the provider is licensed but cannot demand your full medical records or require you to use a specific form.

 

My answer: See the above discussion about the EEOC approach v. the DOJ approach.

 

Given HUD’s May 2026 policy shift, documentation is most protective today when it supports a request for a trained service animal. For that animal type, the bar is straightforward: confirm the disability and the trained task that addresses it.

 

My answer: What does the bot mean by confirming the disability and the trained task. Is it just talking about just making the two inquiries when the disability is not readily apparent? Is it talking about making the two inquiries automatically, such as what the Air Carrier Access Act allows for regardless of whether the disability is readily apparent? See this blog entry.

If you have questions about whether your documentation is sufficient, a HUD-approved housing counselor can review your situation with you — reach one at 1-800-569-4287.

 

My answer: This area is now so incredibly uncertain, knowledgeable legal counsel would be my first choice rather than HUD counselors.

 

AI-Generated Responses

Responses may be incomplete, outdated, or incorrect. HUD AI may summarize public sources, generate explanations, or provide links that require further review.

Use of the service does not create an attorney-client, fiduciary, counselor-client, applicant-agency, or other professional relationship.

Informational Use Only

HUD AI provides general information about public housing, HUD programs, and related government resources. It is not a substitute for official HUD guidance, legal advice, financial advice, or a final eligibility determination.

Program rules, forms, deadlines, and local availability can change. You should confirm important information with the relevant agency, public housing authority, lender, counselor, or official HUD source before taking action.

 

 

My Answer: There is an awful lot out there about how generative AI can make up things completely out of whole cloth so to speak. In the law, there are certainly some tools that can be used where you can reliably say that an authority will not be made up out of whole cloth. However, even there, the AI will stretch authority beyond recognition. It will also completely get it wrong as to what the various authority means when you add it all up. Generative AI also uses cut off dates, and so what you see may or may not be timely (a cut off date problem does not seem to be an issue here). Generative AI does not, at least as of yet in my experience, get nuances in the law. Law can get very complicated and can turn on very subtle things. For example, I have seen AI miss the distinction entirely between the interactive process and an individualized analysis. They are two very related concepts but also quite different from each other. Finally, AI can have its own implicit biases depending upon whose bot is being used, and it may also give you different answers depending upon the prompts used.

 

Conclusions:

 

  1. In short, AI is NOT!!!!! a substitute for legal counsel.
  2. Very concerning that the government is relying on an AI bot this way as an awful lot of people, hopefully not many lawyers but I’m sure there will be some, are going to rely on this as authority with the bot being on the HUD website. People will just presume it is accurate. It also isn’t clear to me whether the bot being used on HUD’s website has any HUD oversight associated with it.
  3. As to what authority the HUD bot (assuming it is not a third party bot, which it very well may be), is relying on, we don’t know. One possibility is a joint statement from DOJ and HUD issued in 2004. That statement while perhaps still in effect, is of questionable validity today for a couple of reasons. First, it specifically says it is for providing technical assistance. As such, the latest HUD internal memorandum on service animals and emotional support animals clearly supersedes it. Second, even if this technical assistance from 2004 were still in effect, it’s of no help to ESA advocates because the examples used in that document are clearly service animals and not emotional support animals.
  4. I get the benefit of AI, and it is certainly disrupting law in a big way. However, AI cannot be a substitute for the exercise of independent legal discretion by those licensed to do so.
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Hope everyone had a great Fourth of July weekend. I wrote this blog entry while taking a break between watching World Cup games and Wimbledon over the weekend. It’s been a tremendous World Cup and Wimbledon. Also, this month is disability pride month. I recognize being disabled proud isn’t always easy and often depends on the particular disability and even when a person becomes a person with a disability. That said, I am proud to be disability proud.

I thought I would put up a short blog talking about questions raised by a recent United States Supreme Court decision in Trump v. Slaughter. Also, as everyone knows, I have been involved in the intersection of disability rights and sports since the very first edition of my Understanding the ADA book being published back in 2000. The new eligibility rule put out by the NCAA for D1 athletes raises all kinds of disability rights issues. So, I wanted to discuss that as well. Accordingly, the blog entry is divided into two categories and they are: questions raised by Trump v. Slaughter; and why the new NCAA five-year eligibility rule is terribly problematic for persons with disabilities and most likely violates the ADA and the Rehabilitation Act by way of the applicability of various final implementing ADA and §504 (Rehabilitation Act), regulations.

 

I

Questions raised by Trump v. Slaughter, which can be found here.

 

  1. In this case, the Supreme Court held that commissioners of independent executive agencies are subject to at will termination by the president of the United States. Justice Gorsuch wrote an interesting opinion agreeing with the result but saying all kinds of things in the future are going to have to be worked out. I have a few of my own questions as well, described below.
  2. What does the decision mean for the EEOC? It also has a group of commissioners. The statute also talks about how the commissioners must be split among the two parties. All commissioners are confirmed by the United States Senate. It’s hard to read Slaughter in any way except to say that the EEOC commissioners are terminable at will by the president. What does that mean? First, if the EEOC commissioners are terminable at will by the president, does that mean that the president is free to ignore any statutory provisions when it comes to suggesting who should be an EEOC Commissioner? If not, what is there to prevent a president from appointing a member of a political party that is not theirs and then promptly firing them once the Senate confirms them? As far as I can tell, nothing would prevent that approach even though it would bring serious questions about operating without a quorum of commissioners.
  3. Will the commissioners of independent executive agencies be expected to resign every four years. That is, despite what the statute says their term is, in light of Slaughter, it seems perfectly reasonable to expect that whenever a new president takes office that all commissioners submit their resignation, particularly those of a different party.
  4. What is the implication for federal judges who are parts of executive agencies? Are immigration judges and Social Security judges subject to firing at will by the president? The decision doesn’t address this question, but look for this question to come down the tracks soon. Will this lead to a push for executive agency judges to become Title III judges? I know there has been a push for several years now for that to happen in some quarters. I am a bit ambivalent about that push because judges and litigants would lose disability rights protections they currently have (federal judges working for executive agencies are protected by §501 of the Rehabilitation Act. Litigants dealing with executive agency judges are protected under §504 of the Rehabilitation Act. However, federal judges not part of executive agencies are neither subject to the ADA nor to the Rehabilitation Act).
  5. Justice Gorsuch’s opinion is such that it might be more accurate to say the decision was a 5-1-3 decision.
  6. I have read a few articles discussing this decision saying that this decision may have much wider implications internationally than people realize. For example, while I can’t pinpoint exactly where I read it, I have read articles saying the Slaughter decision is going to be terribly problematic in the EU when it comes to digital privacy because of provisions saying that the EU can only share data with countries that have independent agencies over digital privacy. Slaughter definitely calls into question whether the agency would be independent as viewed by the EU.
  7. Only thing we can say for sure, is the implications of Slaughter are going to be numerous and at times unexpected.

 

II

Why the NCAA Five-Year Eligibility Rule Is Terribly Problematic for Persons with Disabilities and Most Likely Violates the ADA and the Rehabilitation Act

  1. The NCAA is changing their eligibility rules effective 2026-27 academic year, here.
  2. A D1 athlete will have five years of eligibility.
  3. The five-year period starts when the student athlete first enrolls full-time and attends classes at any college or university, including a domestic institution, international institution, or junior college.
  4. The start of the regular academic year immediately following the student-athlete’s 19th birthday, if the student-athlete turns 19 years old before September 1 is when the five-year eligibility period begins. For an individual who turns 19 years old on or after September 1, the period of eligibility begins at the start of the subsequent academic year, unless the individual enrolled full-time in college earlier.
  5. Once the five-year period starts, it runs continuously. It does not pause because a student athlete does not compete, transfers, sits out, changes teams, or takes time away from the participation, meaning student-athletes, coaches, and athletic department no longer have to track athletic redshirts.
  6. No more medical hardship waivers.
  7. No more redshirt rules.
  8. Pregnancy and military service may suspend the eligibility period.
  9. The NCAA is arguably a service establishment under 42 U.S.C. §12181(7)(F).
  10. A person having to miss athletic eligibility because of an injury would most certainly have a disability as defined by the ADA. Remember, after the amendments to the ADA, a temporary disability may be a covered disability where it substantially limits a major life activity.
  11. 28 C.F.R. §36.202(a), Denial of participation: states, “A public accommodation shall not subject an individual or class of individuals on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.”
  12. 28 C.F.R. §36.202(b), Participation in unequal benefit: states, “A public accommodation shall not afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals.”
  13. 28 C.F.R. § 36.204 Administrative methods: states, “A public accommodation shall not, directly or through contractual or other arrangements, utilize standards or criteria or methods of administration that have the effect of discriminating on the basis of disability, or that perpetuate the discrimination of others who are subject to common administrative control.” (Arguably, the set up of the D1 athlete and the NCAA creates a strong argument of common administrative control by the university or college).
  14. 34 C.F.R. § 104.43 Treatment of students; general: states, “(a) No qualified handicapped student shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any academic, research, occupational training, housing, health insurance, counseling, financial aid, physical education, athletics (emphasis mine), recreation, transportation, other extracurricular, or other postsecondary education aid, benefits, or services to which this subpart applies.”
  15. 34 C.F.R. § 104.47(a)(1). Nonacademic services. States, “(a) Physical education and athletics. (1) In providing physical education courses and athletics and similar aid, benefits, or services to any of its students, a recipient to which this subpart applies may not discriminate on the basis of handicap. A recipient that offers physical education courses or that operates or sponsors intercollegiate (emphasis mine), club, or intramural athletics shall provide to qualified handicapped students an equal opportunity for participation in these activities.
  16. The final regulations found in Title 28 of the C.F.R. are final implementing regulations for Title III of the ADA, while the final regulations found in Title 34 of the C.F.R. mentioned in this blog entry are final implementing regulations for §504 of the Rehabilitation Act for post-secondary institutions. Since just about every college or university takes federal funds, a college or university is subject to both the ADA (Title II if public, and Title III per 42 U.S.C. §12181(7)(J) if a private entity), and to the Rehabilitation Act.
  17. Class actions, as we have discussed in this blog numerous times, such as here, involving persons with disabilities are hard to pull off. Nevertheless, I could see a class action challenging the omission of disability from the eligibility rule as a violation of the ADA and the Rehabilitation Act in 1973 from any of the following individuals: anybody who has to sit out next year due to an injury, such as an ACL tear for example; any athlete suffering a season-ending injury in the future, which would be about any D1 athlete; or any athlete with a flareup of an existing disability causing them to miss a season.
  18. It is a bit strange to me that the NCAA talks about accommodating pregnancy but not disability when the whole theory of accommodating pregnancy in the first place emanated from accommodating disabilities.
  19. What these new eligibility rules essentially say is the following: if you are a person without a disability and do not become disabled during your eligibility period, you get five years of eligibility. If you are a person who becomes a person with a disability during your eligibility period causing you to miss a season, that’s just too bad. If you are a person who becomes pregnant, then you have a shot of completing all five years of your eligibility period. None of this makes any sense, and as detailed above, quite possibly violates both the ADA and the Rehabilitation Act.
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I hope everyone is staying cool with the heat of the summer. Also, the World Cup has been absolutely fascinating even if you are not a soccer fan.

 

This week’s blog entry explores Hunter v. United States , here, decided by the United States Supreme Court on June 18, 2026. It doesn’t really have anything to do with disabilities per se except that the plaintiff had a disability whose treatment of it was very much an issue. Also, many people with disabilities, both mental and physical, are in the prison system. As usual, the blog entry is divided into categories and they are: the situation; Justice Kagan (majority opinion), on why plea deals can be appealed when a miscarriage of justice can be shown; Justice Gorsuch concurring opinion exploring history of plea bargaining, appeal waivers, and an exploration of the miscarriage of justice standard; and thoughts/takeaways. It was an 8-1 decision with only Justice Thomas dissenting (he would have avoided the policy considerations and believed the law led to a contrary conclusion). There was also a concurrence by Justice Kavanagh with whom Justice Alito and Justice Barrett joined. Their concern was Justice Gorsuch’s concurrence, discussed below, sets a lower bar for the miscarriage of justice standard than what the majority opinion does. Finally, Justice Barrett’s concurring opinion talks about how the miscarriage of justice standard is one that applies only in rare circumstances and belongs to a body of procedural common-law doctrines courts have long developed.

 

I

The Situation

Petitioner Munson Hunter III entered into a written plea agreement with the Government after he was charged with ten counts of bank and wire fraud for a years-long scheme costing various financial institutions about half a million dollars. Under the agreement, Hunter pleaded guilty to one count of aiding and abetting wire fraud. In exchange, the Government agreed to dismiss the other nine charges and to refrain from prosecuting Hunter in the future for the conduct they described.

The agreement also included an appeal waiver, applying to both Hunter’s conviction and his still-to-be-decided sentence. Under that provision, Hunter “knowingly and voluntarily waive[d] the right to appeal” his conviction and sentence, except that he did “not waive the right to raise a claim of ineffective assistance of counsel.” and with specific reference to his sentence, Hunter acknowledged his “aware[ness]” of certain facts: that the sentence had “not yet been determined” by the District Court; that the Government had made no “promise or representation” about that sentence; and that the “sentence to be imposed [was] within the sole discretion of the sentencing judge.”

At that hearing, much of the discussion focused on a condition of the supervised release the Probation Office recommended go into effect once Hunter completed his prison sentence. According to the Office’s presentence report, Hunter “suffers from symptoms of anxiety and depression” and “has refused medication to treat his symptoms.” The report thus proposed that, while on supervised release, Hunter be required to “participate in a mentalhealth treatment program” and to “take all mental-health medications that are prescribed by [his] treating physician.” Id., at 24. Hunter objected to the mandatory-medication part of that condition, saying that he should not “be forced to medicate.” The judge responded that if “the treatment provider prescribes drugs, you should take them,” while also telling Hunter that he could “address” any future dispute about medication “to the probation officer” or, if needed, “to me.”

Hunter promptly appealed, challenging the mandatory medication condition. That condition, he argued, “infringe[d] on [his] fundamental due process liberty interest in being free of unwanted mental health medication.” The Government sought dismissal, citing the appeal waiver in Hunter’s plea agreement. Hunter acknowledged that he had knowingly and voluntarily signed on to that provision but urged two reasons for still permitting the appeal to proceed. Most broadly, he contended that an appeal waiver is unenforceable when the disputed aspect of a sentence “violates a fundamental constitutional right.” In the alternative, he asserted that the District Court’s representation at sentencing that he had a right to appeal, along with the prosecutor’s failure to object, voided the appeal waiver he had made.

 

II

Justice Kagan (Majority Opinion), On Why Plea Deals Can Be Appealed When a Miscarriage Of Justice Can Be Shown

  1. An appeal waiver is not knowing and voluntary if it is the product of ineffective assistance of counsel.
  2. The acceptance or rejection of a plea agreement is left to the discretion of the individual trial judge. If approved, an appeal waiver next falls into the lap of a Court of Appeals, which has exclusive control over its operation. Nothing literally prevents a defendant signing such a waiver from filing an appeal.
  3. The real world effect of the waiver provision turns only on whether the appeals court decides to enforce it. The consequences of that decision have everything to do with courts and the judgments they render.
  4. The standard for enforcing appeal waivers implicates the interests not only of the agreement’s parties, but also of the judiciary.
  5. If a court always carries out appeal waivers no matter the kind or degree of error in the sentence, then the judicial system’s integrity may come into question.
  6. The majority of U.S. Circuit Courts of Appeals view that an appeal waiver is unenforceable when it results in a miscarriage of justice makes the most sense. It also sets a high bar by allowing the setting aside of appeal waivers only where the sentence contains an egregious error that would bring the judicial system into disrepute. That error must be obvious and not one a judge could reasonably make. It also must be of the type that undermines public confidence in the judiciary.
  7. The miscarriage of justice standard offers a safety belt for extreme cases, i.e. a way out of the waiver when the justice system’s basic integrity is at stake.
  8. It is impossible to list all situations where an appeal waiver will be set aside, but a few of those situations are obvious (the examples are not exclusive): 1) a defendant may appeal the sentence exceeding what the relevant statute allows, which is most commonly a term of years about the maximum prescribed; 2) a defendant may appeal a sentence infected with blatent constitutional error, such as when a judge takes account of a constitutionally impermissible factor (like race), or imposes a constitutionally infirm condition of supervised release (like preventing a defendant from becoming pregnant); 3) a defendant may appeal a sentence imposed without some minimum of civilized procedure, such as when a judge refuses to hold a hearing in accordance with basic principles of law.
  9. The floodgates argument against the miscarriage of justice standard simply doesn’t hold up in light of what has happened in the U.S. Court of Appeals to date.
  10. The Court declined to decide in the first instance how the dispute should come out involving the petitioner when the miscarriage of justice standard is applied.

 

III

Justice Gorsuch Concurring Opinion Exploring History of Plea Bargaining, Appeal Waivers, And an Exploration of The Miscarriage Of Justice Standard

 

  1. The criminal justice system is no longer dominated by trials and sentences based on them, instead, it’s plea bargains worked out in ways not unlike the facts of this case.
  2. The domination of the plea bargaining system was not always the case in American history and certainly not at the founding. In fact, the founding generation took care to secure the right to jury trial in criminal cases twice (the Constitution and the Bill of Rights).
  3. Plea bargains didn’t begin to emerge as an alternative to trial in serious criminal cases until the mid-19th Even then, the practice was usually met with intense judicial skepticism. That skepticism continued well into the 20th century.
  4. In 1971, the Supreme Court declared plea bargaining highly desirable, something to be encouraged, and an essential component of the administration of justice.
  5. Since the 1970s, the number of federal criminal laws has grown rapidly. The prison terms attached to federal crimes have also grown. Some now say there is not an adult American who is not committed one felony or another.
  6. Federal sentencing guidelines currently recommend higher sentences for most defendants exercising their constitutional right to trial.
  7. 95% of convictions now come by way of plea bargains. Plea bargaining is now the criminal justice system.
  8. Appeal waivers are even a more recent of the development then plea bargaining is. Forty years ago, appeal waivers were rare or nonexistent. Like plea bargaining it was also met initially with judicial skepticism, but over time came to be accepted by the courts.
  9. In an appeal waiver situation, a defendant is waiving his right to appeal even though he does not yet know what that sentence will be, and even when the government retains its right to appeal any decision it doesn’t like.
  10. Since a defendant confronted with an appeal waiver during plea bargaining does not know what sentence a court will issue, the defendant must negotiate in the dark.
  11. The majority opinion listing some examples as to what might be a miscarriage of justice, is a welcome first step but doesn’t go far enough with respect to fleshing out the standard so that it can be applied by the lower courts. Fortunately, the Courts of Appeals have already fleshed out the rule.
  12. Miscarriage of justice includes: A) a sentence not authorized by law. This category embraces sentences exceeding the maximum prescribed by statute. It also should include sentences imposing penalties the law reserves for offenses different from those from which the defendant stands convicted, sentences ordering remedies the law does not permit, and perhaps minimum sentences which the defendant does not qualify; B) blatant constitutional error includes: 1) sentences based on constitutionally impermissible factors such as race, religion, or sex; 2) constitutionally infirm conditions of supervised release, such as sentences imposing a condition of release violating a defendant’s right to be free from forced medication, or condition violating his right to speak or worship freely, or any other condition violating one of his recognized constitutional rights. In short, a miscarriage of justice is all but certain to arise whenever a sentence infringes upon a constitutional right firmly established at the time of sentencing; C) sentences marred by serious procedural errors includes: 1) sentences chosen by an orangutan (completely random); 2) sentences reflecting a marked departure from mandatory sentencing procedures; 3) sentences where a district court departs from rules requiring it to give reasons for a chosen sentence or fails to address a defendant’s nonfrivolous argument or a different one; D) some sentences requiring a degree of judicial discretion, such as a failure to correct a plain and non-harmless error in calculating an advisory guidelines range; E) where a district court deals out punishment that is so substantively unreasonable, it would fail under the deferential abuse of discretion standard used by appellate courts in considering sentencing challenges; and F) egregious harm resulting from any supervised release condition, or any other component of a sentence wholly unrelated to legitimate sentencing purposes or lacking in rationality.
  13. Appeal waivers just might violate the due process clause of the Fifth Amendment because such a waiver cannot possibly be voluntary and knowing because it is never made with a full understanding of the consequences since the appeal waiver is signed before anyone actually knows what the sentence will be.
  14. A legal system branded with a disclaimer that judges might violate the law would be no legal system at all.
  15. The Supreme Court has found prospective waivers of many other statutory rights invalid and unenforceable. For example, employee’s rights under Title VII of the Civil Rights Act of 1964 are not susceptible to prospective waivers. Same goes for the Fair Labor Standards Act and §1983 claims. Further, the Court has suggested on multiple occasions that a private agreement may not be enforced where it operates as a perspective waiver of a party’s right to pursue various other statutory remedies.

 

IV

Thoughts/Takeaways

  1. One can expect that criminal defense attorneys and judges are going to be very mindful of the few examples listed in the majority opinion.
  2. I expect all the litigation going forward to emanate from Justice Gorsuch’s opinion. Certainly, look for attorneys representing defendants on appeal to use every single one of the examples Justice Gorsuch gives in his opinion. If none of those examples apply, look for criminal defense appellate attorneys to make the constitutional claim Justice Gorsuch alludes to in his opinion that appeal waivers are flat out unconstitutional.
  3. What will be interesting to see is how the Supreme Court deals with cases that will percolate up to it involving Justice Gorsuch’s interpretation of the limited examples given in the majority opinion (even if those examples are not exclusive).
  4. The Court clearly was bothered by the forced medication aspect of the sentencing decision. One wonders if they would not also be bothered by a situation demanding that a prisoner be mandated to go off medicine that a prisoner was taking successfully in order to compensate for their disability.
  5. 8-1 decision. However, it might be better to think a bit as a 7-1-1 decision.
  6. Much of Justice Gorsuch’s concurrence echoes his book, “Overruled: the Human Toll of Too Much Law,” which is a fascinating read regardless of whether you agree with his premise.
  7. A statement made by Justice Gorsuch in his concurring opinion has wide implications for persons with disabilities. In particular, he says: “a legal system branded with a disclaimer that its judges might violate the law would be no legal system at all.” We might see this particular statement coming up quite a bit whenever a person with a disability challenges a state court judge or a federal executive agency’s judge for practices that discriminate against persons with disabilities. Certainly, plaintiff lawyers dealing with discrimination in state courts or in courts of federal executive agencies should strongly consider using this statement as part of their efforts to get around immunity issues that will be undoubtedly raised.
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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.
Listen to this post

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.

 

Listen to this post

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.