On June 20, 2025, the Supreme Court decided Stanley, which we discussed here. There is no need to go into the facts as we have already covered that previously. Accordingly, the blog entry is divided into the categories of: Justice Gorsuch’s majority opinion; Justice Gorsuch’s plurality opinion discussing how Title I might apply; Justice Thomas concurring opinion; Justice Sotomayor concurring and dissenting opinion; Justice Jackson dissenting opinion; and thoughts/takeaways. The reader is free to focus on any or all of the categories.

 

I

Justice Gorsuch’s Majority Opinion

 

  1. For purposes of Supreme Court review, the Court assumed that the City’s revision to its retirement benefits plan constituted discrimination on the basis of disability.
  2. Under Title I of the ADA, 42 U.S.C. §12111(8), a qualified individual is a person who with or without reasonable accommodation, can perform the essential functions of the employment position that she holds or desires.
  3. In Title I of the ADA, Congress made it unlawful to discriminate against someone who can perform the essential functions of the job she holds or desires. That statement is in the present tense, so that means an individual who with or without reasonable accommodation, is able to do the job they hold or seek at the time they suffer discrimination. It also means that the statute suggests that it does not reach retirees who neither hold nor desire a job at the time of an alleged act of discrimination.
  4. In Title I of the ADA, reasonable accommodation refers to things like job restructuring, modifying existing facilities used by employees, and altering training materials or policies. All of those are kinds of accommodations that make perfect sense when it comes to current employees or applicants, but is hard to see how they could apply to retirees who do not hold or seek a job.
  5. 42 U.S.C. §12112(b) also has a similar message as it focuses on the present tense as well. It offers examples of what constitutes discrimination against a qualified individual on the basis of the disability. For example, subparagraph 6 says discrimination includes using certain qualification standards, employment tests or other selection criteria when they are job-related for the position in question. This provision clearly protects jobseekers, but doesn’t make any sense in the context of retirees not seeking employment. The same analysis apply to subparagraph 7, which requires that tests concerning employment accurately reflect the skills and aptitude of an employee or applicant. The pattern repeats itself throughout §12112(b) and underscores §12112(a)’s focus on current and prospective employees-not retirees.
  6. The retaliation provision of the ADA, 42 U.S.C. §12203(a), does not use present tense language. Instead, it prohibits retaliation against any individual opposing a discriminatory act. Since Congress used different language in the retaliation provision v. §12112, that strongly suggests Congress intended for them to work differently.
  7. Title VII of the Civil Rights Act also does not restrict itself to the present tense exclusively. If Congress wanted to follow that approach with the ADA, they could have done so.
  8. Cleveland v. Policy Management Systems Corporation, which we discussed here, also suggests that Title I of the ADA works in the present tense. In that case, the Court held that representations on an SSDI application may not automatically prevent someone from being a qualified person with a disability at a later time. That is, whether a person is a qualified person with a disability operates in the moment of discrimination.
  9. In a footnote, Justice Gorsuch remarked that the ADA no longer requires a plaintiff to show that she was a qualified individual with a disability at the time of the defendant’s discrimination as a result of the amendments.
  10. If Congress wanted to move away from a present tense orientation, they could have added the words “if any,” in Title I in its otherwise qualified individual definition section, but they did not.
  11. Moving away from a present tense orientation would render phrases in Title I of the ADA redundant, and that doesn’t make any sense.
  12. Title I of the ADA bars employers from discriminating against a qualified individual on the basis of disability in regards to compensation. In other words, the statute protects people and not benefits from discrimination. The statute also defines a qualified individual as a person who holds or seeks a job at the time of the defendant’s alleged discrimination.
  13. It is a mistake to assume that any interpretation of the law that does more to advance the statute’s putative goals must be the law.
  14. The Supreme Court has long recognized that the textual limitations of a law’s scope must be understood as no less a part of its purpose than any of its substantive authorizations.
  15. It cannot be said that Title I’s textual limitations, i.e. its focus on the present tense, necessarily clashes with the ADA’s broader purposes. For example, one Court of Appeals predicted that judicial innovations extending 42 U.S.C. §12112(a)’s protection to retirees could create perverse incentives to encourage employers to reduce retirement healthcare benefits for people with disabilities.
  16. It is up to Congress and not to the Supreme Court to decide whether it wants to extend Title I to reach retirees.
  17. Other laws exist that might attack this situation beside Title I of the ADA. For example, plaintiff’s complaint mentioned §504 of the Rehabilitation Act, Florida state law, and equal protection.
  18. It is still possible that Title I even with its focus on the present tense may reach many claims involving discrimination with respect to retirement benefits.

 

 

 

II

Justice Gorsuch’s Plurality Opinion Discussing How Title I Might Apply

 

  1. An unlawful discriminatory practice can take place in any of three points in time: 1) when a defendant adopts a discriminatory practice; 2) when an individual is affected by application of a discriminatory practice; or 3) when an individual becomes subject to such a practice.
  2. With respect to II(1)(1) of this blog entry, while it is true that the changes in the benefits occurred while Ms. Stanley was still employed, Ms. Stanley’s complaint provide no basis for inferring that the City’s policy change injured her at the time the policy was changed. Instead, her complaint suggests that when the City first issued its policy, she was not disabled and still expected to complete 25 years of service.
  3. If a person could plead and prove that they were both disabled and qualified when their employer adopted a discriminatory retirement benefits policy, the ADA could be available.
  4. In a footnote, Justice Gorsuch said that not every Title I plaintiff must plead and prove that they had a disability when they suffer discrimination. For example, Title I of the ADA defines discrimination on the basis of disability to include associational discrimination, i.e. discriminating against a qualified individual because of the known disability of an individual they have a relationship or association with. Unfortunately for Ms. Stanley, nothing in her complaint alleges anything along those lines either.
  5. With respect to II(1)(2) of this blog entry, Stanley had been retired for two years and could not satisfy the requirements of her job and was not seeking employment. While Stanley is out of luck, it is possible that others could show that they were affected by a policy change while they were qualified individuals even if they happen to be retired by the time they bring suit.
  6. With respect to II(1)(3) of this blog entry, Stanley’s complaint does not allege what her disability is or when it emerged. It is only from discovery on another issue that it appeared she was diagnosed with Parkinson’s disease in 2016.
  7. That she was diagnosed with Parkinson’s disease in 2016 is unhelpful to the analysis because the dispute comes to the Supreme Court on a motion to dismiss. While a court might with a little more facts in the complaint draw a plausible inference that Stanley suffered discrimination between 2016 and 2018, that didn’t appear in the complaint. For example, Stanley could have allege that she developed Parkinson’s disease before 2018, or that she worked for any period with some disability. If those allegations had been made, her case could likely proceed.
  8. Stanley in her brief at the appellate court did not claim she was impacted by the discriminatory City policy during her employment, which was what the United States argued before the Supreme Court. The 11th Circuit correctly declined to pass on that argument because Stanley had not presented it to the District Court and specifically disclaimed it in her own brief on appeal. Stanley also did not expressly asked the Supreme Court to address the 11th Circuit’s preservation rules nor did she ask the Supreme Court to reconsider its own general practice of allowing the Court of Appeals to determine for themselves what arguments they consider properly before them.
  9. In short, for a plaintiff to prevail under §12112(a), a plaintiff must plead and prove that they held or desired a job and to perform its essential functions at the time of the alleged act of disability-based discrimination. While a variety of suits involving retirement benefits might well proceed under that rule, this is not one of those cases in light of the way it came to the Supreme Court.

 

III

Justice Thomas Concurring Opinion

 

  1. Justice Thomas concurring opinion focuses on his frustration with the increasingly common practice of litigants urging the Supreme Court to hear a matter on one question and then after it decides to do that, shifting to an entirely different question. Accordingly, he doesn’t sign on to III of Justice Gorsuch’s opinion.

 

IV

Justice Sotomayor Concurring and Dissenting Opinion

 

  1. Justice Sotomayor concurs with the majority in that she believed Stanley forfeited the argument she may have been otherwise qualified at the time of the policy change. Otherwise, she agrees with Justice Jackson’s dissent except for Justice Jackson’s footnote 12.

 

V

Justice Jackson Dissenting Opinion

 

  1. Retirement benefits are essential building blocks of the American dream.
  2. Pure textualism makes a mess of what the ADA was intended to do.
  3. The ADA was designed as a comprehensive national mandate for the elimination of disability discrimination.
  4. The ADA protects against disability discrimination with respect to fringe benefits, employee compensation, and other terms, conditions, and privileges of employment.
  5. The Supreme Court should not have used Stanley to make any pronouncements about the viability of the Title I discrimination claim arising after an employee retires.
  6. The Supreme Court majority and plurality misreads Title I to introduce a time related limitation appearing nowhere in the ADA.
  7. In a footnote, Justice Jackson notes that the summary judgment record on Stanley’s non-ADA claim reflects that she was diagnosed with Parkinson’s disease in 2016.
  8. On the facts as alleged in Stanley’s complaint, the City subjected her to the discriminatory policy, not only after she retired. So, Stanley was performing the essential functions of her job at the pre-retirement point at which she became disabled and was subject to the new policy. As such, she was a qualified individual per the ADA.
  9. The complaint does say that Stanley had a disability and eventually had to retire because of it. As such, that is enough to draw a plausible inference that Stanley worked with the disability and was therefore subject to discriminatory policy sometime before retiring.
  10. Stanley never disavowed the argument that she was discriminated against while still working. Instead, all she said was that she did not claim she was impacted by the discriminatory City policy during her employment. Whether a person is impacted by a policy is a separate question from whether they were subject to it [discrimination].
  11. The allegation that the relevant discriminatory act took place while she was still on the job does pertain to the question the Supreme Court decided to hear in the first place. Also, the traditional rule is that once a federal claimant properly presents a question to the Supreme Court, a party can make any argument in support of that claim and is not limited to the precise arguments they made below.
  12. With respect to Stanley’s forfeiting her argument, an argument can be made that the Supreme Court deciding to hear the issue presented gets rid of the forfeiture issue.
  13. The majority and plurality decision create the discrepancy between real-life and legal decision-making matters in concrete and demonstrable ways.
  14. The Supreme Court instead of taking the approach it winds up taking in terms of the majority and plurality opinions should have just dismissed the case as being improvidently granted.
  15. Title I of the ADA says absolutely nothing about the preemployment or postemployment timing of an act of disability discrimination.
  16. Title I of the ADA does not categorically exclude former employees or retirees from its protections. It also does not explicitly carveout postemployment discrimination as not being actionable.
  17. Nothing in Title I actually says one must currently hold or desire a job in order to obtain protection from the forms of disability discrimination prohibited by Title I of the ADA. It also does not place a temporal limit on the reach of it protections. Instead, Title I grants broad protections for workers against disability discrimination with respect to job-related benefits. It also specifically prohibits disability discrimination by an organization providing fringe benefit to an employee of an entity subject to Title I of the ADA.
  18. It is perfectly permissible to read the qualified individual definition as setting a conditional mandate. That is, if a plaintiff relies on Title I regarding a job the plaintiff seeks to obtain or holds, then she must be able to perform the essential functions of that job. That doesn’t mean that definition applies across the entire board of Title I of the ADA. After all, conditional mandates appear all the time on a day-to-day basis. For example, a sign that reads “to live in this apartment building, you must be able to clean up after the pets you own,” does not mean that tenants have to own pets (in a footnote, Justice Jackson discusses other examples as well). So, the qualified individual section of the ADA can be read as to say nothing about the time the alleged discrimination must occur relative to one’s period of employment.
  19. A retiree seeking to remedy discrimination after the payout of benefits already earned on the job does not trigger the concern that motivated Congress to craft the qualified individual provision. That is, the function of the qualified individual provision of Title I of the ADA is to protect employers from having to hire and maintain employees who cannot do the work. That provision was not designed to serve as a temporal limit distinguishing the rights of those who are ready did the work and have now left the job and simply doesn’t make sense to say otherwise. Congress could have easily said that extinguishing the rights of those who are ready did the work and have now left the job from the ADA’s protection was something that it wanted to do but it did not say that.
  20. Under the majority’s logic, an employer cutting off an employee’s entitlement to retiree health benefits because of their disability one day before they retire subjects the employer to liability, but if they wait till one day after they retire they are off the hook under Title I of the ADA. This logic also leads to arbitrariness as well. The rule also makes no sense. After all, why would Congress hinge protection against discrimination with respect to benefits earned while working on whether the individual can perform a job in the future.
  21. Workers often decide whether to enter the workforce and when to leave based on the terms of such benefits. Protecting persons with disabilities rights to receive all that they earned during the working years free from disability discrimination in retirement, is essential to a faithful application of Congress’s handiwork with respect to the ADA.
  22. The Supreme Court has made clear that pension benefits qualify as terms, conditions, or privileges of employment even though they are received only after employment terminates.
  23. Retirement benefits are deferred compensation for past years of service already rendered.
  24. In a footnote, with Justice Sotomayor does not join, Justice Jackson talks about her philosophy about how laws should be interpreted. In short, she is not a fan of pure textualism.

 

VI

Thoughts/Takeaways

 

  1. Justice Gorsuch mentioned that the plaintiff in her complaint sought relief under other laws, namely: Florida state law; §504 of the Rehabilitation Act; and the equal protection clause. I am not licensed to practice in Florida, and so I cannot opine on the Florida claim. I can say that §504 is a nonstarter because it’s causation requirement is, “solely by reason of.” It seems to me that it would be extremely difficult to prove that the sole reason for the discrimination was based on disability. With respect to the equal protection claim, that also is a nonstarter because undoubtedly, per this case, here, persons with disabilities would be in the rational basis class with respect to a claim of retirement benefits being changed on the basis of disability.
  2. While §504 and the equal protection clause are nonstarter’s, there are two other laws and possibly a third that might indeed work notwithstanding majority and plurality decision in Stanley. Those laws are: 1) Title II of the ADA, which applies to everything that a nonfederal governmental entity does; 2) Title III of the ADA which applies to places of public accommodation found in 42 U.S.C. §12181(7) and extends to privileges and benefits. See this blog entry, for example; 3) if a private employer is involved, ERISA might be another possibility, but I will leave that to attorneys focusing on that law. The remedies of these three other possible laws are very different from the remedies in Title I of the ADA, so that may be a possibility as to why violation of Title II of the ADA was not alleged in the complaint. ERISA would of course not apply as a private employer was not involved. Title III of the ADA also would also not apply as a nonfederal governmental entity was involved
  3. Did discrimination based on disability actually occur in Stanley’s case? The Supreme Court specifically assumed that it did for the sake of argument, but we don’t actually know if that is really the case.
  4. Another question is what does this case mean for whether a leave of absence could be a reasonable accommodation. The courts are split on that. The Seventh Circuit says that a leave of absence is generally not a reasonable accommodation but other courts disagree so long at that leave of absence has a definite date of return. This decision just might lend support to the Seventh Circuit approach. Definitely worth following to see how this goes.
  5. Justice Jackson’s dissent is actually a policy driven opinion. Justice Sotomayor did not join her footnote 12 where Justice Jackson lays out her view on pure textualism. This reminded me of what Justice Kagan said upon the passing of Justice Scalia, “that we are all textualists now.”
  6. With respect to Justice Gorsuch’s footnotes regarding whether the ADA requires a person to be a qualified individual with a disability, certainly association discrimination is one such possibility. Another example, is the regarded as prong under the ADA, which only requires a person being regarded as having a physical or mental impairment in order to fall under that prong of having a disability. The ADA.
  7. When it comes to drafting ADA complaints, explicitly alleging more facts is always better than alleging fewer facts. Think of it as alleging enough facts so that any reasonable person would have to be on notice as to what transpired and what particular causes of actions are involved.
  8. It is not the first time we have seen litigant bring up the question for the Supreme Court that may not have matched what the Supreme Court decided to hear. See the Supreme Court’s decision in Sheehan, here, for one such example.
William Goren

William D. Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. For 28 years and continuing, he has been advising on ADA compliance as both an attorney and professor—of which during…

William D. Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. For 28 years and continuing, he has been advising on ADA compliance as both an attorney and professor—of which during his time as a full-time academic at various institutions in Chicago, he won numerous teaching awards and achieved tenure.

Read more about William GorenEmail
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