The Starting Line is What the ADA and Rehabilitation Act are All About

Picture immediately above is a Track and field starting line (white lane numbers on orange track)

Today’s blog entry has been getting a lot of press on Law 360, which I subscribe to. It was brought to my attention by one of their journalists, Anne Cullen, who wrote an excellent article on it (here, subscription required). In that article, she solicited the opinions of several attorneys, including myself, who were very knowledgeable about the ADA. There was absolutely no daylight between any of us. I have also seen some reports, which I anticipated, that the Second Circuit took a broad reading of the ADA in deciding this case. As we will see, that is not what happened. The case of the day is Tudor v. Whitehall Central School District, a published decision decided by the Second Circuit on March 25, 2025, here. As usual, the blog entry is divided into categories and they are: facts; when it comes to accommodations/modifications, it is all about getting the person with the disability to the same starting line as a person without a disability; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the sections.

I

Facts

Plaintiff worked for 20 years as a substitute teacher and then as a high school math teacher. For decades she has suffered from PTSD related to sexual harassment and sexual assault by a supervisor in her former workplace. Plaintiff takes multiple medications to manage her symptoms and has been admitted for psychiatric care related to her PTSD three times.

In 2008, Tudor’s PTSD symptoms escalated beyond her ability to manage them with therapy and medication. In consultation with her therapist, she sought and received an accommodation from Whitehall that allowed her to leave campus for one fifteen-minute break during each of her morning and afternoon “prep periods,” when she was not responsible for overseeing students. She used these breaks to compose herself away from the workplace, an environment that tends to trigger her symptoms.

In 2016, following a change in school administration, Whitehall began prohibiting teachers from leaving school grounds during prep periods. When Tudor attempted to do so despite the new policy, she was reprimanded for insubordination. She advised the administration as to her longstanding accommodation but was told that the documentation that Whitehall had on file was insufficient to establish her right to a reasonable accommodation. Rather than provide additional documentation, Tudor took paid sick leave and then requested leave for the fall semester under the Family and Medical Leave Act (FMLA). Her doctor identified her medical condition as “PTSD with severe anxiety and agitation.” App’x 166. During Tudor’s FMLA leave, she “was unable to teach and had to attend a 5 day a week intensive outpatient program . . . to get [her] PTSD symptoms and anxiety under control.”

When Tudor returned from FMLA leave in January 2017, Whitehall granted her one of her requested breaks in the morning, plus a break in the afternoon on days when a school librarian could watch her students. When a librarian was unavailable, Tudor was unable to take an afternoon break. This arrangement lasted through the 2017-18 and 2018-19 school years. Whether it violated the ADA is the subject of a separate lawsuit, in which the district court ruled that summary judgment was precluded by genuine disputes regarding Tudor’s disability and the sufficiency of the accommodation that Whitehall provided.

During the 2019-20 school year, neither the school librarian nor any other Whitehall employee was available to cover for Tudor for fifteen minutes during the afternoon study hall. Tudor nevertheless left school grounds for a break during her study hall period on 91 of the 100 days of school that year before classes went remote due to the pandemic. Whether or not Whitehall administrators were aware that Tudor had thus resorted to self-help, no one from the Whitehall administration expressly authorized Tudor to take these breaks. And Tudor testified that, because she considered herself to have been violating school policy, these breaks heightened her anxiety.

II

When It Comes to Accommodations/Modifications, Court’s Reasoning That It Is All about Getting the Person with a Disability to the Same Starting Line as a Person without a Disability

1. 42 U.S.C. §12112(a) provides that no covered entity can discriminate against a qualified individual on the basis of disability in regards to the terms, condition, and privileges of employment.
2. 42 U.S.C. §12111(8) defines a qualified individual as an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.
3. To establish a prima facie case for failure to accommodate under the ADA, a plaintiff has to show by a preponderance of the evidence that: 1) the employer is subject to the ADA; 2) the plaintiff was disabled within the meaning of the ADA; 3) plaintiff was otherwise qualified to perform the essential functions of the job, with or without reasonable accommodation (emphasis in opinion. This element has also been referred to as whether the plaintiff can perform the essential functions of the job with reasonable accommodations); and 4) plaintiff’s employer refused to make a reasonable accommodation.
4. Prohibited discrimination under the ADA per 42 U.S.C. §12112(b)(5)(A), includes not making reasonable accommodations for the known physical or mental limitations of an otherwise qualified individual with a disability unless the accommodation imposes an undue hardship on the employer.
5. Reasonable accommodation per 42 U.S.C. §12111(9) includes job restructuring or part-time or modified work schedules.
6. Putting all of the above provisions together, an employer, absent an undue hardship, must offer a reasonable accommodation to an employee with disability if that employee is capable of performing the essential functions of the job with or without an accommodation.
7. Under a straightforward reading of the phrase “with or without,” the fact that an employee can (emphasis in opinion), perform her job responsibilities without a reasonable accommodation does not mean that the employee must perform that job without a reasonable accommodation. An employee may be entitled to a reasonable accommodation even if the employee can perform the essential functions of her job without one.
8. To conclude that “with or without,” means with or without is not new ground. Other Circuits (First Circuit, D.C. Circuit, Fifth Circuit, 10^th Circuit, Ninth Circuit, 11th Circuit quite arguably, Sixth Circuit in an unpublished opinion, and the Eighth Circuit), that have considered whether the ability to perform the essential functions of a job without an accommodation is fatal to an employee’s ADA or Rehabilitation Act failure to accommodate claim, have all said that it is not.
9. The text of the ADA is unambiguous and affords no other reasonable interpretation other than if an employee with a disability is qualified to receive a reasonable accommodation under the ADA, she is entitled to a reasonable accommodation even if she can perform the essential functions without one.
10. The ADA must be broadly construed to accomplish its purpose of providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities. Saying that an accommodation must be strictly necessary to be reasonable runs counter to that purpose. If Congress had wanted employers to make only necessary accommodations, rather than reasonable accommodations, it could have said so. However, that is not what Congress did. The ADA plainly directs employers to make “reasonable accommodations.”
11. Requiring a plaintiff to show that they are able to perform the essential functions of the job with a reasonable accommodation does not compel the reverse, i.e. requiring a plaintiff to show they are unable to perform the essential functions of the job without a reasonable accommodation.
12. An employee may qualify for an accommodation even if it is not strictly necessary to her performance of the essential functions of the job.
13. While the ADA does not require the perfect elimination of all disadvantage that may flow from a disability, employees who can work without accommodations are included within the category of individuals qualified for reasonable accommodations under 42 U.S.C. §12111(8).
14. Defenses on remand are still available to the employer and they include: 1) whether the plaintiff has a disability per the ADA and what accommodations would be reasonable; and 2) whether the accommodation might impose an undue hardship. On the other hand, plaintiff’s long history of receiving her requested accommodation and defendant’s evolving policies indicating that the plaintiff’s requested accommodation may have been reasonable even though she perform the essential job functions without it may cut the other way against those defenses.
15. Accommodations that are not strictly necessary for an employee’s performance of the essential job function may still be reasonable and therefore required by the ADA.

III

Thoughts/Takeaways

1. The court inadvertently creates some confusion by talking about strictly necessary to performing the essential functions of the job as it naturally leads to arguments that the court is taking a broad reading of the ADA. It isn’t doing that at all. The court would have been better off talking about how the ADA when it comes to reasonable accommodation/modifications is all about getting the person with a disability to the same starting line as a person without a disability. The court also would have been better off talking about how the ADA demands accommodation of the disability and not the essential functions of the job. A lot of confusion could have been prevented if the court took this approach instead of the approach the court actually did. Like the other attorneys consulted by Anne Cullen in her excellent Law 360 article on this case, there was no daylight between any of us. The conclusion in this case is actually quite unremarkable because: 1) the ADA is all about getting a person with a disability to the same starting line as a person without a disability when the person with a disability makes a reasonable accommodation/modification request; and 2) it is the disability that is accommodated and not the essential functions of the job; a question that we have discussed before, such as here.
2. Even though the court could have been more clear in its approach, this case is extremely important because it affirms that the ADA is all about getting a person with a disability to the same starting line and about accommodating the disability first and foremost.
3. The decision is published.
4. I don’t know if this will be appealed to the US Supreme Court. This is one of those foundational cases to the ADA that makes me wonder how the Supreme Court would decide this case even given the current configuration of the Supreme Court.
5. While this is a Title I case, absolutely no reason exists why the court’s reasoning would not apply with equal force to Titles II and III matters.
6. The court often uses the term “otherwise qualified,” in its opinion. After the amendments to the ADA, that is a Rehabilitation Act term. The ADA after the amendments uses the term, “qualified.” That said, the meanings of “qualified,” and “otherwise qualified,” are exactly the same.
7. With respect to the defense it discussion in the opinion, there is no question that the plaintiff is a person with a disability. I could see a debate about logistical undue hardship, but the court suggested that I had some doubt about the viability of that defense.