Petition for Writ of Certiorari — Perry Hopman, Petitioner v. Union Pacific Railroad
Supreme Court briefOct 2, 2023
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No. _________
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------PERRY HOPMAN,
Petitioner,
v.
UNION PACIFIC RAILROAD,
Respondent.
---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari To The United
States Court Of Appeals For The Eighth Circuit
---------------------------------♦--------------------------------PETITION FOR A WRIT OF CERTIORARI
---------------------------------♦--------------------------------ERIC SCHNAPPER
Counsel of Record
University of Washington
School of Law
P.O. Box 353020
Seattle, WA 98195
(206) 616-3167
schnapp@uw.edu
JOHN W. GRIFFIN, JR.
MAREK, GRIFFIN & KNAUPP
203 North Liberty St.
Victoria, TX 77901
(361) 573-5500
KATHERINE L. BUTLER
BUTLER & HARRIS
1128 Cortlandt St.
Houston, TX 77008
(713) 443-6456
MICHAEL J. NEUERBURG
SIMMONS PERRINE MOYER BERGMAN PLC
115 Third St. SE
Suite 1200
Cedar Rapids, IA 52401
(319) 366-7461
Counsel for Petitioner
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTION PRESENTED
The Americans with Disabilities Act (ADA) prohibits a covered employer from discriminating in the
“terms, conditions, and privileges of employment”
against a qualified individual with a disability. The forbidden discrimination includes failing to “mak[e] reasonable accommodations to the known physical or
mental limitations of an otherwise qualified individual
with a disability.”
The question presented is:
Is the ADA requirement of reasonable accommodation of employees with disabilities limited to
—accommodations that enable an employee
to perform the essential functions of a position, and
—accommodations that provide equal access
to a program or service that is provided or
sponsored by the employer and that is not directly job-related?
ii
PARTIES
The plaintiff is Perry Hopman. The defendant is
the Union Pacific Railroad.
RELATED PROCEEDINGS
Hopman v. Union Pacific Railroad, No. 4:18-cv00074-KGB, United States District Court Eastern District of Arkansas, judgment entered March 30, 2022.
Hopman v. Union Pacific Railroad, No. 22-1881,
United States Court of Appeals for the Eighth Circuit,
judgment entered May 19, 2023.
iii
TABLE OF CONTENTS
Page
Question Presented .............................................
i
Parties ..................................................................
ii
Related Proceedings ............................................
ii
Opinions Below ....................................................
1
Jurisdiction ..........................................................
1
Statutes and Regulations Involved .....................
2
Introduction .........................................................
5
Statement of the Case .........................................
7
Legal Background ............................................
7
Factual Background .........................................
9
Proceedings Below ............................................ 12
Reasons for Granting the Writ ............................ 19
I.
The Decision of the Eighth Circuit Conflicts with Decisions in Eight Circuits and
in the Highest Court of One State ............ 19
II.
The Eighth Circuit Standard Is Inconsistent with the EEOC’s Interpretation of
the ADA and Regulations .......................... 29
III.
It Is Important That the Circuit Conflict
Be Promptly Resolved ............................... 34
IV.
This Case Is an Excellent Vehicle for Resolving the Conflict .................................... 38
Conclusion............................................................ 40
iv
TABLE OF CONTENTS—Continued
Page
APPENDIX
Opinion of the United States Court of Appeals,
May 13, 2023 ...........................................................1a
Order of the United States District Court for the
Eastern District of Arkansas, March 30, 2022 .....19a
Order of the United States District Court for the
Eastern District of Arkansas, September 9,
2020 .......................................................................53a
Order of the United States District Court for the
Eastern District of Arkansas, May 26, 2020 ........66a
v
TABLE OF AUTHORITIES
Page
CASES
Beasley v. O’Reilly Auto Parts, 69 F.4th 744 (11th
Cir.2023) ..................................................................30
Bell v. O’Reilly Auto Enterprises, LLC, 972 F.3d
21 (1st Cir.2020), cert. denied, 141 S.Ct. 2755
(2021) ................................................................. 20, 30
Blickle v. Illinois Dept. of Children and Family
Services, 2013 WL 2467651 (N.D. Ill. June 7,
2013) ........................................................................38
Brown v. Austin, 13 F.4th 1079 (10th Cir.2021) .........26
Brumfield v. City of Chicago, 735 F.3d 619 (7th
Cir.2013) ............................................................ 24, 25
Buckingham v. United States, 998 F.2d 735 (9th
Cir.1993) ...................................................... 25, 26, 30
Calero-Cerezo v. U.S. Dep’t of Just., 355 F.3d 6
(1st Cir.2004) ...........................................................21
Colwell v. Rite Aid Corp., 602 F.3d 495 (3d
Cir.2010) ............................................................ 21, 22
EEOC v. Charter Communications, LLC, 75
F.4th 729 (7th Cir.2023) ..........................................24
EEOC v. Dolgencorp, LLC, 899 F.3d 428 (6th
Cir.2018) ...................................................... 23, 24, 37
Felix v. New York City Transit Auth., 324 F.3d
102 (2d Cir.2003) .....................................................27
Fults v. Nissan North America, Inc., 2020 WL
12862964 (E.D. Tenn. Sept. 16, 2020) .....................37
vi
TABLE OF AUTHORITIES—Continued
Page
Gleed v. AT&T Mobility Services, 613 Fed. Appx.
535 (6th Cir.2015) ....................................... 23, 29, 30
Helena A. v. Kijakazi, 2022 WL 3715444
(E.E.O.C.) .................................................................30
Higgins v. New Balance Athletic Shoe, Inc., 194
F.3d 253 (1st Cir.1999) ............................................20
Hill v. Associates for Renewal in Education, Inc.,
897 F.3d 232 (D.C. Cir.2018) ........................14, 26-28
Jacques v. Clean-Up Group, Inc., 96 F.3d 506 (1st
Cir.1996) ..................................................................20
Jones v. Lubbock Hospital District, 834 Fed.
Appx. 923 (5th Cir.2020) .........................................37
Lett v. Southeastern Pennsylvania Transp. Authority, 2022 WL 4542093 (E.D. Pa. Sept. 27,
2022) ........................................................................38
Livingston v. Fred Meyer Stores, Inc., 388 Fed.
Appx. 738 (9th Cir.2010) .........................................26
McDonald v. Department of Environmental
Quality, 351 Mont. 243, 214 P. 3d 749 (2009).......... 28
McWright v. Alexander, 982 F.2d 222 (7th
Cir.1992) ..................................................................26
Meachem v. Memphis Light, Gas Water Division,
2017 WL 11681788 (W.D. Tenn. March 29,
2017) ..................................................................... 37
Meritor Savings Bank, FSB v. Vinson, 477 U.S.
57 (1986) ..................................................................38
vii
TABLE OF AUTHORITIES—Continued
Page
Morales v. Bellsouth Telecommunications, 2009
WL 1322577 (E.E.O.C.) ...........................................38
Reina D. v. Berryhill, 2017 WL 642230
(E.E.O.C.) .................................................................31
Sanchez v. Vilsack, 695 F.3d 1174 (10th
Cir.2012) ............................................................... 26
Sepúlveda-Vargas v. Caribbean Rests., LLC, 888
F.3d 549 (1st Cir.2018) ............................................21
Stokes v. Nielsen, 751 Fed. Appx. 451 (5th
Cir.2018) ..................................................................22
Sturz v. Wisconsin Department of Corrections,
642 F.Supp.2d 881 (W.D. Wis. 2009) .......................38
STATUTES
29 C.F.R. § 1630.2(o)(1) ............................. 2, 8, 9, 13, 16
29 C.F.R. § 1630.2(o)(1)(i) ......................................... 3, 8
29 C.F.R. § 1630.2(o)(1)(ii) ............................. 3, 8, 16-19
29 C.F.R. § 1630.2(o)(1)(iii) ...... 3, 8, 9, 13-17, 19, 21-23,
......................................................... 26, 28, 29, 38, 39
29 C.F.R. § 1630.4(a)(1).................................................3
29 C.F.R. § 1630.4(a)(1)(vi) ...........................................3
29 C.F.R. § 1630.4(a)(1)(vii) ..........................................3
29 C.F.R. § 1630.4(a)(1)(viii) .........................................4
29 C.F.R. § 1630.4(a)(1)(ix) ...........................................4
viii
TABLE OF AUTHORITIES—Continued
Page
29 C.F.R. § 1630.9(a) .....................................................4
29 C.F.R. § 1630.9(e) .....................................................4
28 U.S.C. § 1254(1) ........................................................1
28 U.S.C. § 1331 ............................................................1
29 U.S.C. § 794 ............................................................22
29 U.S.C. § 794(d) ........................................................36
42 U.S.C. § 12112(a) ......................................................2
42 U.S.C. § 12112(b) ......................................................2
42 U.S.C. § 12112(b)(5) ........................................... 7, 13
42 U.S.C. § 12112(b)(5)(A) ............................................2
1
Petitioner Perry Hopman respectfully prays that
this Court grant a writ of certiorari to review the judgment and opinion of the United States Court of Appeals entered on May 19, 2023.
---------------------------------♦---------------------------------
OPINIONS BELOW
The May 19, 2023, opinion of the court of appeals,
which is reported at 68 F.4th 394, is set out at pp.1a18a of the Appendix. The March 30, 2022, Order of the
district court, which is unofficially reported at 2022
WL 963662, is set out at pp. 19a-52a of the Appendix.
The September 9, 2020, Order of the district court,
which is unofficially reported at 2020 WL 5412382, is
set out at pp. 53a-65a of the Appendix. The May 26,
2020, order of the district court, which is reported 462
F.Supp.3d 913, is set out at pp. 66a-102a of the Appendix.
---------------------------------♦---------------------------------
JURISDICTION
The decision of the court of appeals was entered
on May 19, 2023. On August 14, 2023, Justice Kavanaugh granted an extension of the time to file a petition until October 2, 2023. This Court has jurisdiction
pursuant to 28 U.S.C. § 1254(1). The district court had
jurisdiction under 28 U.S.C. § 1331.
---------------------------------♦---------------------------------
2
STATUTES AND REGULATIONS INVOLVED
Section 12112(a) of 42 U.S.C. provides:
No covered entity shall discriminate against a
qualified individual on the basis of disability
in regard to job application procedures, the
hiring, advancement, or discharge of employees, employee compensation, job training, and
other terms, conditions, and privileges of employment.
Section 12112(b) of 42 U.S.C. provides in pertinent
part:
(b)
Construction
As used in subsection (a), the term “discriminate against a qualified individual on the basis of disability” includes—
***
(5)(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with
a disability who is an applicant or employee,
unless such covered entity can demonstrate
that the accommodation would impose an undue hardship on the operation of the business
of such covered entity....
29 C.F.R. § 1630.2(o)(1) provides:
(o)
Reasonable accommodation.
(1) The term reasonable accommodation
means:
3
(i) Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the
position such qualified applicant desires; or
(ii) Modifications or adjustments to the work
environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an
individual with a disability who is qualified to
perform the essential functions of that position; or
(iii) Modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of
employment as are enjoyed by its other similarly situated employees without disabilities.
29 C.F.R. § 1630.4(a)(1) provides in pertinent part:
(a)
In general—
(1) It is unlawful for a covered entity to discriminate on the basis of disability against a
qualified individual in regard to:
***
(vi) Fringe benefits available by virtue of
employment, whether or not administered by
the covered entity;
(vii) Selection and financial support for
training, including: apprenticeships, professional meetings, conferences and other related activities, and selection for leaves of
absence to pursue training;
4
(viii) Activities sponsored by a covered entity, including social and recreational programs; and
(ix) Any other term, condition, or privilege of
employment.
29 C.F.R. § 1630.9(a) provides:
(a) It is unlawful for a covered entity not
to make reasonable accommodation to the
known physical or mental limitations of an
otherwise qualified applicant or employee
with a disability, unless such covered entity
can demonstrate that the accommodation
would impose an undue hardship on the operation of its business.
29 C.F.R. § 1630.9(e) provides:
(e) A covered entity is required, absent undue hardship, to provide a reasonable accommodation to an otherwise qualified individual
who meets the definition of disability under
the “actual disability” prong (§ 1630.2(g)(1)(i)),
or “record of ” prong (§ 1630.2(g)(1)(ii)), but is
not required to provide a reasonable accommodation to an individual who meets the definition of disability solely under the “regarded
as” prong (§ 1630.2(g)(1)(iii)).
---------------------------------♦---------------------------------
5
INTRODUCTION
This case concerns a critical, recurring issue regarding the reasonable accommodation requirement of
the Americans with Disabilities Act (ADA).
Individuals with disabilities who are already employed often need accommodations to avoid harms related to their disabilities. Accommodations may be
necessary to enable an employee to take medication or
obtain treatment, to prevent injury or aggravation of
symptoms, or to avoid pain. Even when an employee
can perform the essential functions of his or her job, an
accommodation may be needed to reduce disability-related difficulty in performing essential or non-essential functions.
The EEOC has long interpreted the ADA to require these types of reasonable accommodations. The
Commission has issued a series of disability-specific
Guidances describing the types of accommodation that
are typically needed for a specific problem. And the
EEOC has argued in several briefs that the ADA mandates such accommodations.
But in the instant case the Eighth Circuit has
adopted an unprecedented legal standard that largely
eviscerates the right to this type of reasonable accommodation. Under the decision below, an individual with
disabilities who can perform the essential functions of
his or her job is only entitled to an accommodation to
avoid disability-related harms if that accommodation
is a program or service that the employer is already
providing to employees who do not have disabilities.
6
Many necessary and reasonable accommodations
would not satisfy that extraordinary requirement.
Applying that standard, the district court held that
a disabled employee who seeks permission to bring
his service dog to work is required to show that his
employer provides service dogs to employees who did
not have disabilities. The Eighth Circuit affirmed.
The Eighth Circuit did not claim that any other
circuit has applied this stringent limitation on reasonable accommodation claims. To the contrary, it
acknowledged there were at least some contrary decisions, but curtly dismissed them as “unpersuasive.” In
fact, decisions in eight courts of appeals, as well as in
the highest court of one state, adopt a standard for reasonable accommodations that is inconsistent with the
Eighth Circuit standard.
The circuit conflict raises vexing practical problems. The outcome of an ADA reasonable accommodation claim can now turn on the circuit in which it is
brought. A worker whose job takes him or her to several states can obtain a more favorable outcome by suing in the better circuit; the plaintiff in this case is an
engineer for the Union Pacific Railroad, whose work in
the past has been on trains traveling between and in
the Eighth and Fifth Circuits. Several EEOC district
offices must now apply different standards to ADA
claims, depending on the state in which a claim arose.
The EEOC Guidances are no longer an accurate description of the ADA standards in the Eighth Circuit.
The reasonable accommodation requirement imposed
by the Rehabilitation Act on recipients of federal funds
7
is governed by now-divergent ADA standards. When a
recipient of federal funds operates in several circuits,
the federal agency responsible for enforcing the Rehabilitation Act needs to administer inconsistent legal
standards.
Certiorari should be granted to resolve these administrative problems, and to restore the vitality of the
ADA reasonable accommodation requirement in the
Eighth Circuit.
---------------------------------♦---------------------------------
STATEMENT OF THE CASE
Legal Background
The Americans with Disabilities Act requires
employers, under specified circumstances, to provide
reasonable accommodations to individuals with disabilities. 42 U.S.C. § 12112(b)(5). That statutory requirement is one of the most consequential laws of modern
times, opening the doors of the nation’s workplaces to
millions of men and women who were previously excluded, permitting them to enjoy remunerative and
satisfying jobs and to live independently.
The statutory elements of a reasonable accommodation claim are clear. A claimant must be a person
with a disability, he or she must be qualified for the
position in question, the employer action sought must
accommodate the disability, the accommodation
sought must be reasonable, and that accommodation
must not impose an undue burden on the employer.
8
Although disputes do arise in particular cases as to
whether one or more of those circumstances is present,
the statutory definition of each of these elements is relatively settled. There is an overwhelming consensus
among the lower courts that the ADA requires reasonable accommodation not only when a person with a disability needs an accommodation to perform an essential
function of a particular position, but also when an employee needs an accommodation for other reasons.
The text of the statute itself does not limit the
right to a workplace accommodation to accommodations sought to meet any particular type of need. Disagreement about the scope of the right to reasonable
accommodation has arisen because of section 1630.2(o)(1)
of the regulations, which defines “reasonable accommodation.” That regulatory definition has three subparts. Section 1630.2(o)(1)(i) defines reasonable accommodation to include modifications or adjustments
“that enable a qualified applicant with a disability to
be considered for the position such qualified applicant
desires....” Section 1630.2(o)(1)(ii) applies to modifications or adjustments “that enable an individual with a
disability who is qualified to perform the essential
functions of th[e] position [in question].” Section
1630.2(o)(1)(iii) adds that reasonable accommodation
includes modifications or adjustments “that enable a
covered entity’s employee with a disability to enjoy
equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without
disabilities.”
9
Section 1630.2(o)(1)(iii) is of particular importance,
because it is the part of the regulatory definition that
would usually be invoked by employees who are not
seeking some other position, but who need an accommodation in the particular job which they already hold.
For the most individuals with disabilities who are not
applying for a new position, that is the type of accommodation that matters.
The question presented by this case turns in
part on the meaning and significance of section
1630.2(o)(1)(iii). The court of appeals below held that
section 1630.2(o)(1)(iii) is a limitation, and a severe
one, on the circumstances in which a current employee can obtain an accommodation under the ADA.
Petitioner maintains, to the contrary, that section
1630.2(o)(1)(iii) does not impose such restrictions, but
is a broadly written provision intended to encompass
any circumstance in which an accommodation would
reduce disadvantages arising from an employee’s disability. The difference turns in part on the meaning of
the phrase “benefits and privileges of employment.”
Some circuits, in determining the circumstances in
which an employee would be entitled to an accommodations, have not based their standard on section
1620.3(o)(1).
Factual Background
The disabilities at issue in this case derived from
the plaintiff ’s service as an Army flight medic. Hopman
first served two years as a flight medic in Iraq, at a
10
time when our troops were experiencing high rate of
casualties because of IEDs. While at the site of an
injury or on the helicopter returning to base, Hopman
was doctor, surgeon, wound specialist and X-ray technician rolled into one. As a first responder, Hopman
repeatedly witnessed horrific scenes of carnage, and
assisted gravely wounded and dying service members.
Frequently he would return from one tragedy, change
out of his bloody clothes, and be sent out on another
mission. Those experiences left Hopman with posttraumatic stress syndrome and resulting flashbacks.
After his service in Iraq, Hopman worked for
several years as a conductor for Union Pacific Railroad.
In 2010 Hopman’s Arkansas National Guard unit was
called up; Hopman returned to active duty. He was
deployed as a flight medic in Kosovo. Near the end of
then Staff Sergeant Hopman’s tour, a colleague’s error
caused Hopman to fall 50 feet out of a helicopter.
Hopman’s fall resulted in traumatic brain injury, as
well as nerve damage and injury to his shoulder.
Hopman was sent to Walter Reed for reconstructive surgery and treatment, and then to two other military treatment facilities. He remained in treatment
at those facilities for months. After returning to civilian life, Hopman weaned himself off many medications, passed a Union Pacific fitness test, and resumed
work for the railroad.
Hopman’s symptoms, however, persisted. He continues to have extremely painful, nausea-inducing
migraine headaches. When a migraine occurs while
11
Hopman is at work on a train, he often vomits out the
locomotive window. Hopman has been prescribed medicine, the vaso-constrictor rizatriptan, which he can
take when he senses the onset of a migraine attack.
But the medicine requires some time to take effect;
before the medicine is finally effective, Hopman is subject to increasing pain, nausea and light sensitivity.
Hopman also continues to experience psychologically
painful flashbacks. These continuing medical problems
made work exceptionally difficult at times, but Hopman persisted, and eventually was promoted to the position of engineer.
Hopman had been aware since his treatment at
Walter Reed that a service dog might well be effective
in dealing with his injuries and symptoms. But a service dog trained to deal with those medical problems
cost $20,000, and Hopman did not have the funds to
obtain one. However, a story about Hopman in National Geographic drew public attention to his plight.
An appeal for contributions, highlighting his military
service, eventually raised the needed funds. Hopman
received the dog, named Atlas, in 2016. The dog, and
then the dog together with Hopman, underwent extensive training addressed to Hopman’s specific medical
problems.
The service dog is quite effective in helping deal
with Hopman’s symptoms. The dog is able to detect
well before Hopman can the onset of a migraine attack,
by noting changes in Hopman’s scent and by observing
changes in Hopman’s eyes. The dog is trained to alert
Hopman to the imminence of a migraine, which
12
enables Hopman to take his migraine medicine in time
to prevent the onset of symptoms. Similarly, the dog is
able to ascertain when Hopman is experiencing flashbacks, and is trained to rub against Hopman in a manner that results in the production of a hormone,
oxytocin, which prevents or lessens the flashbacks.1
Having found, in the service dog, a means of preventing at work his migraine headaches, vomiting, and
flashbacks, Hopman repeatedly asked Union Pacific to
accommodate his disability by permitting him to bring
the service dog with him in the cab of the locomotive.
Hopman described his disability-related symptoms,
explained how the service dog was able to assist in
avoiding physical and psychological pain, and assured
his employer that the dog was trained in a manner that
would pose no problems on the job. Company officials
denied those repeated accommodation requests.
Proceedings Below
District Court
Hopman sued Union Pacific in federal district court,
asserting that its failure to provide him the requested
accommodation—permitting Hopman to bring the service dog on the train where he was working—violated
the Americans with Disabilities Act. After a period of
discovery, the defendant moved for summary judgment.
1
The district court later noted that “[t]he record evidence
offers numerous examples of the ways in which Mr. Hopman contends that Atlas helps to alleviate Mr. Hopman’s pain and suffering from his PTSD.” App. 97a.
13
As relevant here, Union Pacific advanced two
distinct arguments, one statutory and one based on
section 1630.2(o)(1). With regard to the statute, the
company contended that the reasonable accommodation requirement in section 12112(b)(5) applies only
insofar as an employee or applicant needs an accommodation to perform an essential function of the job in
question, and thus to be “qualified” under the statute.
That issue is important in this case, because the parties agreed that Hopman could perform all the essential functions of his job, without need for any
accommodation to do so. The district court rejected
Union Pacific’s statutory contention. App. 89a-95a.
Union Pacific also argued that the type of accommodation which an employee can obtain is limited by
section 1620.2(o)(1). The company argued that section
1630.2(o)(1)(iii) only requires accommodations when
they are needed to access some existing program or
service that is being provided by the employer to nondisabled employees. App. 96a. Hopman, on the other
hand, contended that the ADA and the regulation right
to accommodation are not so limited, but more broadly
apply where an accommodation is needed to accord a
disabled employee the “same right other employees
already have—to work without the continual and unrelenting burden and pain” of a disability-related condition. App. 97a. The district court denied the motion
for summary judgment. “Even though Mr. Hopman is
able to perform the essential functions of his job without accommodation, from the record evidence before
it, the Court finds that ‘[a] reasonable jury could
14
conclude that forcing [Mr. Hopman] to work with
pain when that pain could be alleviated by his requested accommodation violates the ADA.’ ” App. 97a
(quoting Hill v. Associates for Renewal in Education,
Inc., 897 F.3d 232, 239 (D.C. Cir.2018)).
Union Pacific moved for reconsideration of the
district court’s decision. “Union Pacific reiterate[d] its
position that the ‘benefits and privileges of employment are limited to employee-sponsored services, programs, and facilities....’ ” App. 61a (quoting 29 C.F.R.
§ 1630.2(o)(1)(iii)). The company also renewed its statutory argument that the reasonable accommodation
requirement applies only to individuals who did need
an accommodation to perform an essential function.
App. 59a. The district court declined to alter its original decision. App. 63a.
At trial, the jury was asked to answer a series of
special verdict questions. One of those questions,
phrased in language taken essentially verbatim from
section 1630.2(o)(1)(iii), required the jury to determine
whether “plaintiff Perry Hopmans’ requested accommodation was a modification or adjustment to enable
Mr. Hopman with a disability to enjoy equal benefits
and privileges as are enjoyed by defendant Union Pacific Railroad’s other similarly situated employees
without disabilities?”2 The jury answered “yes.” The
jury also found that Hopman’s requested accommodation was reasonable, that it did not create undue hardship for the defendant, and that it did not require the
2
Doc. 184, p. 4
15
company to violate any federal law or regulation.3 The
jury awarded Hopman $250,000 in compensatory damages.
Union Pacific moved for judgment as a matter of
law, again contending that under section 1630.2(o)(1)(iii)
a disabled employee, able to perform the essential
functions of his or her job, is limited to accommodations that are needed to access an employer-provided
program or service. This time the district judge agreed
with that regulation-based argument.
According to the regulations, the obligation to
make reasonable accommodation applies to
all services and programs provided in connection with employment and to all non-work
facilities provided or maintained by an employer for use by its employees. Accordingly,
the obligation to accommodate is applicable to
employer sponsored placement or counseling
services, and to employer provided cafeterias,
lounges, gymnasiums, auditoriums, transportation and the like. 29 C.F.R. § Pt. 1630, App.
§ 1630.9 “Section 1630.9 Not Making Reasonable Accommodation” ...
App. 28a (emphasis in opinion). Applying that standard,
the district court held that Hopman’s evidence was insufficient as a matter of law because “Mr. Hopman has
not demonstrated that Union Pacific provided service
animals as a benefit and privilege of employment for
any other similarly situated non-disabled employee.”
App. 35a; see App. 33a (Hopman failed to prove that
3
Doc. 184, pp. 4, 6, 7.
16
“service animals are being provided to other similarly
situated non-disabled Union Pacific employees as a
benefit and privilege of employment”); see App. 31a. It
was thus legally irrelevant whether, as Hopman contended, the requested “accommodation will assist
[him] in mitigating the symptoms of a disability.” App.
23a.
Hopman also argued that he was entitled to an accommodation because with it “his ‘level of performance’
will be higher, given that he will not be burdened with
the symptoms of PTSD and migraines that otherwise
plague him during the days.” App. 43a-44a. The district
court ruled that the regulation does not require an employer to provide an accommodation that would affect
the ability of an employee with a disability to better
perform his or her job, except if the employee is unable
to perform an essential function of that job without
the requested accommodation. Section 1630.2(o)(1)(iii),
the court reasoned, does not apply at all to accommodations intended to affect job performance, and
section 1630.2(o)(1)(ii) only applies to performancerelated accommodations needed to perform essential
functions. App. 43a-49a. There is no right, it held, to
an accommodation “to assist [an employee] with performing duties above and beyond the core essential
functions of his job....” App. 46a.
Court of Appeals
The court of appeals upheld the district court’s
view that section 1630.2(o)(1) limits the circumstances
17
in which employees with disabilities can obtain an accommodation for their disabilities. Absent a need for
accommodation to perform the essential functions of a
job, which would fall within the scope of section
1630.2(o)(ii), the Eighth Circuit reasoned, an employee is only entitled an accommodation when it is
needed for equal access to “employer provided or sponsored services and programs.” App. 14a. The Eighth
Circuit’s limitation was based solely on the regulation,
not on the text of the statute itself. The phrase “benefits and privileges of employment” in section
1630.2(o)(1)(iii), the court of appeals insisted, “refers
only to employer-provided services [that are] offered to
non-disabled individuals in addition to disabled ones
... ” App. 11a; see App. 12a (“proof of an employersponsored or employer-provided benefit or privilege
that is provided to workers without disabilities”),
App. 13a (“employer sponsored placement or counseling services, and ... employer provided cafeterias,
lounges, gymnasiums, auditoriums, transportation
and the like”) (emphasis in opinion). The Eighth Circuit further explained that “benefits and privileges of
employment” in section 1630.2(o)(1)(iii) “mean][s] ...
employer-provided workplace advantages not directly
related to job performance....” App. 13a.4
4
Even if Union Pacific had provided service dogs to nondisabled employees (as the district court had described as a missing prerequisite to Hopman’s claim), the court of appeals insisted
that Hopman could not insist that he was entitled to that type of
accommodation, because actually providing a service dog would
be like providing a worker with eyeglasses, a personal item not
a job-related accommodation. App. 15a-16a. Of course, Hopman
18
The court of appeals acknowledged Hopman’s argument that other circuits interpret the ADA and its
regulations more broadly. App. 17a n.4 (citing decision
in the First, Fifth, Sixth and District of Columbia Circuits). The Eighth Circuit suggested that some of those
court of appeals opinions were distinguishable, and
commented that “the rest are non-binding [precisely
because they are in other circuits] and unpersuasive.”
App. 16a-17a.
The court of appeals also agreed with the district
court that no accommodation could be sought for a disability-related problem that interfered with an employee’s ability to do his or her job, unless the problem
prevented the employee from performing an essential
function of the job. Hopman’s counsel had argued to
the jury, “Let [Hopman] do [his job] without the pain
and suffering. Let him do it as he can if he’s allowed to
really flourish and not throw up out of the window
every day.” App. 9a. That disability-caused pain, suffering, and vomiting, the Eighth Circuit insisted, were legally irrelevant.
From Hopman’s perspective, this is certainly
a fair point. But it is a job performance argument, and Hopman did not claim denial of a
job performance accommodation under 29
C.F.R. § 1630.2(o)(1)(ii), presumably because
he is able to perform the essential functions
of his conductor and engineer jobs with or
was not asking that Union Pacific provide him with a service dog;
Hopman already had one.
19
without the requested service dog accommodation. App. 9a.
Under the decisions below, accommodation claims related to job performance are not cognizable under section 1630.2(o)(1)(iii). Such accommodation claims
can only be made under section 1630.2(o)(1)(ii),5 and
section 1630.2(o)(1)(ii) in turn is limited to employees who cannot perform an essential function without
an accommodation (which is why, as the court of appeals recognized, Hopman did not assert a section
1630.2(o)(1)(ii) claim).
---------------------------------♦---------------------------------
REASONS FOR GRANTING THE WRIT
I.
THE DECISION OF THE EIGHTH CIRCUIT
CONFLICTS WITH DECISIONS IN EIGHT
CIRCUITS AND IN THE HIGHEST COURT
OF ONE STATE
The Eighth Circuit decision conflicts with the legal
standard applied in eight other courts of appeals, and
in the highest court of one state. The court of appeals
below did not contend that any other court (other
than the district court in this case) applied a similar
standard. The Eighth Circuit acknowledged that at least
some other courts (“the rest”) rejected its interpretation
5
See App. 44a (plaintiff ’s argument that his disability impeded
job performance “may be appropriate for an essential functions
reasonable accommodation analysis [under section 1630.2(o)(1)(ii)],
but it is not appropriate for a benefits and privileges employment reasonable accommodation analysis [under section
1630.2(o)(1)(iii)]”).
20
of the law, and frankly disagreed with them (“unpersuasive”). The court of appeals listed in a footnote several of those decisions in other circuits. App. 17a n.4.
The First Circuit has repeatedly applied to ADA
reasonable accommodation claims a legal standard inconsistent with the Eighth Circuit standard. In
Jacques v. Clean-Up Group, Inc., 96 F.3d 506 (1st
Cir.1996), the First Circuit held that an employee able
to perform a job’s essential functions could still obtain
an accommodation “to pursue therapy or treatment.”
96 F.3d at 515 n.9. The controlling standard in Jacques
is the purpose of the proposed accommodation, not
whether it is accorded to others. In Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 253 (1st Cir.1999), the
court held that the absence of an accommodation could
be actionable if it “affected the terms, conditions, or
privileges of the plaintiff ’s employment,” including by
“imped[ing] his ability to work comfortably.” 194 F.3d
at 256, 264. Bell v. O’Reilly Auto Enterprises, LLC, 972
F.3d 21 (1st Cir.2020), cert. denied, 141 S.Ct. 2755
(2021), held that an employee could obtain an accommodation because he or she could only do his or her job
“with some difficulty.” 972 F.3d at 24. Bell announced a
three-part standard for a reasonable accommodation
claim, no element of which turned on whether the
plaintiff was seeking access to some existing employerprovided program or on how non-disabled workers
were treated.6 The defendant in Bell argued in vain
6
972 F.3d at 24:
[T]o make out a failure to accommodate claim, a plaintiff need only show that: “(1) he is a handicapped
21
that section 1630.2(o)(1)(iii) should be construed to
exclude accommodations that would enable a worker
to perform better.7
In Colwell v. Rite Aid Corp., 602 F.3d 495 (3d
Cir.2010), the Third Circuit upheld the reasonable accommodation claim of a worker with impaired vision
who could not drive safely at night, and who asked that
the employer accommodate that disability by placing
her on a shift that would permit her to get home before
dark.8 “[T]he ADA contemplates that employers may
need to make reasonable shift changes in order to accommodate a disabled employee’s disability-related
difficulties in getting to work.” 602 F.3d at 506. The
basis of the accommodation—“in order to”—was addressing the difficulties faced by the employee. Such
an accommodation, the court held, would provide the
employee with “equal benefits and privileges of employment” under section 1630.2(o)(1)(iii). 602 F.3d at
505-06. And this was not, as the district court in
person within the meaning of the Act; (2) he is nonetheless qualified to perform the essential functions of
the job (with or without reasonable accommodation);
and (3) the employer knew of the disability but declined to reasonably accommodate it upon request.”
Sepúlveda-Vargas v. Caribbean Rests., LLC, 888 F.3d
549, 553 (1st Cir.2018). A plaintiff can make out this
kind of claim even when an employer has “pronounced
itself fully satisfied with [the disabled employee]’s level
of performance” before a request. Calero-Cerezo v. U.S.
Dep’t of Just., 355 F.3d 6, 23 (1st Cir.2004).
7
Brief of Defendant-Appellee, 30.
8
The plaintiff could only get home after dark by driving;
there was no bus service then, and no taxis. 602. F.3d at 498.
22
Colwell had argued (and as the Eighth Circuit requires), an accommodation that had “nothing to do
with ... the manner and circumstances under which
[the plaintiff ] performed her work.” To the contrary,
the Third Circuit emphasized, the time of day when the
plaintiff was required to work was “clearly ... a workplace condition.” 602 F.3d at 506.
In Stokes v. Nielsen, 751 Fed. Appx. 451
(5th Cir.2018), the Fifth Circuit applied section
1630.2(o)(1)(iii)9 to uphold a claim that clearly would
be barred under the Eighth Circuit standard. The
plaintiff in that case, an employee with limited vision,
could not read written materials at a meeting if they
were presented in ordinary format. She asked that the
employer accommodate her disability by either giving
her the materials in advance, so that she could read
the materials with a magnifying glass, or providing the
materials at the meeting in a large format. The district
court had dismissed the complaint because the employee was able (even without the requested accommodations) to perform the essential functions of her job;
the court of appeals reversed, holding that the plaintiff had a viable claim under section 1630.2(o)(1)(iii).
It was sufficient that the plaintiff had asserted that
she could not “effectively participate in meetings”
without one of those accommodations. 751 Fed. Appx.
at 454. There was no suggestion in the opinion that
9
Although the claim in Stokes was asserted under the Rehabilitation Act, 29 U.S.C. § 794 the court of appeals applied the
ADA regulations because the standards under the two laws are
the same. 751 Fed. Appx. at 454.
23
the defendant provided advance or large format materials to others, and the requested accommodation
clearly was directly job-related.
In Gleed v. AT&T Mobility Services, 613 Fed. Appx.
535 (6th Cir.2015), the Sixth Circuit, citing section
1630.2(o)(iii), held that an employee’s need for an accommodation to avoid pain or injury was sufficient
under the ADA to create a right to that accommodation.
We conclude that Gleed’s requested accommodation does seem reasonable, given that (taking the facts in the light most favorable to
Gleed) standing causes him great pain and
increases his risk of skin infections.... AT & T
insists that if Gleed was physically capable of
doing his job—no matter the pain or risk to
his health—then it had no obligation to provide him with any accommodation, reasonable
or not.... [But] the ADA’s implementing regulations require employers to provide reasonable accommodations not only to enable an
employee to perform his job, but also to allow
the employee to “enjoy equal benefits and
privileges of employment as are enjoyed by ...
similarly situated employees without disabilities.” 29 C.F.R. § 1630.2(o)(1)(iii).
613 Fed. Appx. at 538-39. EEOC v. Dolgencorp, LLC,
899 F.3d 428 (6th Cir.2018), upheld an ADA accommodation claim under precisely the circumstances which
the Eighth Circuit holds bars such claims. The plaintiff, who had diabetes, needed to consume a ready
source of sugar if her blood sugar levels were low. If she
24
failed to do so, she would be at risk of a hypoglycemic
episode.” 899 F.3d at 432. The plaintiff sought permission to keep orange juice at her workstation, so that
she could drink it to avoid a hypoglycemic episode.
The employer refused the accommodation on the
ground that it had a “store policy” rule against keeping
or consuming food at a workstation. 899 F.3d at 432.
The plaintiff “asked for ... an exception and got nowhere.” 899 F.3d at 434. In the Eighth Circuit, application of such a policy would bar an accommodation
claim; the plaintiff was seeking an accommodation
that was not provided to non-disabled co-workers.
But in the Sixth Circuit, the employer’s refusal to
depart from its general policy was the gravamen of a
successful ADA claim.
The Seventh Circuit decision in Brumfield v. City
of Chicago, 735 F.3d 619 (7th Cir.2013), was at one time
understood to hold that a reasonable accommodation
is only required when necessary to perform an essential job function. But the Seventh Circuit recently explained that the ADA reasonable accommodation
requirement also applies when an employee can perform those functions, but seeks an accommodation in
order to perform those functions more safely or with
less pain. EEOC v. Charter Communications, LLC, 75
F.4th 729 (7th Cir.2023). Charter Communications explained that Brumfield does not apply to
accommodations that may be needed for an
employee with a disability to perform essential job functions more safely or less painfully.... Our opinion in Brumfield should not
25
be read as holding that the ADA imposes no
duty to offer reasonable accommodations that
affect safety or pain that an employee may be
motivated to overcome. In any event, the parties all agree here that attendance at work
was an essential job function for[the disabled
employee], and evidence would support a finding that the requested accommodation here
would have allowed him to meet that requirement more safely.
735 F.3d at 739. This interpretation of the ADA may be
narrower than in some other circuits, but is nonetheless broad enough to apply to the claim in this case.
Hopman seeks the accommodation at issue here precisely because it will enable him to perform with less
pain all of his duties as a conductor and engineer.
In Buckingham v. United States, 998 F.2d 735 (9th
Cir.1993), the Ninth Circuit identified several distinct
types of circumstances, other than enabling the performance of an essential function, that would warrant an
accommodation. A reasonable accommodation is required if an employee with a disability needs an accommodation to obtain treatment or therapy. “Qualified
handicapped employees who can perform all job functions may require reasonable accommodation to allow
them to (a) enjoy the privileges and benefits of employment equal to those enjoyed by non-handicapped employees or (b) pursue therapy or treatment for their
handicaps.” 998 F.2d at 740; see 998 F.3d at 743 (reasonable accommodation claim can be based on need for
accommodation “to pursue treatment or therapy for [a]
handicap”). Cognizable requests for accommodations
26
also include “accommodations that facilitate the performance of specific employment tasks” 998 F.3d at 740
n.3 (quoting McWright v. Alexander, 982 F.2d 222, 227
(7th Cir.1992)).10
Sanchez v. Vilsack, 695 F.3d 1174 (10th Cir.2012),
cited both section 1630.2(o)(1)(iii) and decisions from
the First, Seventh and Ninth Circuits in holding that
reasonable accommodations are not limited to changes
needed to perform an essential function. The Tenth
Circuit repeatedly explained that the ADA and regulations also mandate reasonable accommodations “for
the purpose of medical treatment or therapy.” 695 F.3d
at 1176; see 695 F.3d at 1181, 1182. The purpose of a
requested accommodation is the touchstone of whether
it may be legally required. The Tenth Circuit applied
that same standard in Brown v. Austin, 13 F.4th 1079,
1089, 1090 (10th Cir.2021).11
In Hill v. Associates for Renewal in Education, Inc.,
897 F.3d 232 (D.C. Cir.2018),12 the District of Columbia
Circuit held that accommodations can be sought under
the ADA to address generally “barriers to employment”
10
Although the claim in Buckingham arose under the Rehabilitation Act, the Ninth Circuit applies the standard in that decision to ADA claims. Livingston v. Fred Meyer Stores, Inc., 388
Fed. Appx. 738, 740 and n.2 (9th Cir.2010).
11
Although Sanchez and Brown were Rehabilitation Act
cases, the Tenth Circuit explained in Brown that claims under
that Act and under the ADA are governed by the same standard.
13 F.4th at 1178 n.2.
12
Then-Judge Kavanaugh participated in oral argument,
but not in the opinion.
27
caused by an employee’s disability, and are not limited
to cases in which the accommodation is needed to perform an essential function. 897 F.3d at 238. “Adverse
effects of disabilities and adverse side effects from the
medical treatment of disabilities arise ‘because of disability.’ ” Id. (quoting Felix v. New York City Transit
Auth., 324 F.3d 102, 107 (2d Cir.2003)). The plaintiff in
Hill was a classroom teacher who had had a leg amputated, and used a prosthesis; the accommodation he
sought was the assistance of a classroom aide whose
presence would reduce the amount of time the plaintiff
has standing.
Hill satisfied the [legal] requirements by alleging that he experienced a hazard of pain
and bruising on his stump while standing for
long periods of time, and by specifically connecting that hazard to supervising his class
without assistance.... [A] classroom aide ...
could help Hill supervise students in the
classroom and during outdoor activities, reducing his need for prolonged standing and
mitigating the alleged “hazard of pain and
bruising.”
897 F.3d at 238.
[Defendant]’s assertion that Hill did not need
the accommodation of a classroom aide because he could perform the essential functions
of his job without accommodation, “but not
without pain,” ... is unavailing. A reasonable
jury could conclude that forcing Hill to work
with pain when that pain could be alleviated
28
by his requested accommodation violates the
ADA.
Id. at 239.
In McDonald v. Department of Environmental
Quality, 351 Mont. 243, 214 P. 3d 749 (2009), the
Montana Supreme Court held that a reasonable accommodation is required under the ADA whenever it
is needed to remove barriers to equal employment opportunity. The plaintiff in that case, as here, sought
permission to bring her service dog to work. Paraphrasing the language of section 1630.2(o)(1)(iii), the
court explained:
[The employee] was entitled to a reasonable
accommodation if such accommodation could
have assisted her in performing her job duties
or alleviated barriers to her ability to enjoy
equal benefits, privileges, and opportunities of
employment. In this regard, [the defendant]
overlooks the fact that when [the employee]
was without her service dog, [the employee]
had to perform her job duties under limitations to which similarly situated employees
were not subjected, such as recurring dissociative episodes, difficulty walking, and the risk
of falling without [the dog]’s assistance to get
up. The notion that she was required to endure these conditions to the absolute breaking
point before she could be deemed to “need” an
accommodation is contrary to the purposes of
the ... the ADA, and we accordingly reject it.
214 P. 3d 760; see id. at 760 (quoting section
1630.2(o)(1)(iii)).
29
There may be some differences among the standards in the First, Third, Fifth, Sixth, Seventh, Ninth,
Tenth and District of Columbia Circuits, and under the
Montana Supreme Court decision. But the standards
in all of those circuits and in the Montana court, are
inconsistent with the Eighth Circuit’s crabbed interpretation of the ADA and section 1630.2(o)(1)(iii). And
the claim rejected by the Eighth Circuit in the instant
case would be upheld in all of those other courts.
II.
THE EIGHTH CIRCUIT STANDARD IS
INCONSISTENT WITH THE EEOC’S INTERPRETATION OF THE ADA AND REGULATIONS
The Eighth Circuit insisted, as did the district
court, that their exceedingly narrow interpretation of
the ADA, and of section 1630.2(o)(1)(iii), were supported by the EEOC. App. 28a, 13a-14a. But the EEOC
has consistently maintained, to the contrary, that the
right to a reasonable accommodation under the ADA
arises more broadly whenever that accommodation is
needed to avoid disability-related harm to an employee.
In an amicus brief in Gleed v. AT&T Services, Inc.,
the EEOC repeatedly insisted that an employee is entitled to a reasonable accommodation whenever that
accommodation is needed to prevent either disabilityrelated pain or the aggravation of the employee’s
disability-related symptoms. “An employer must make
a reasonable accommodation not only where the
30
employee is completely unable to do the essential job
functions without it, but also where continuing to perform those functions without the accommodation exacerbates the employee’s pain or other symptoms of his
or her impairment.” Brief of the EEOC as Amicus Curiae in Support of Plaintiff/Appellant, Gleed v. AT&T
Mobility Services, Inc., 10. “[W]orking in pain certainly
affects the conditions of one’s employment.” Id., 16
(emphasis in original). “AT&T’s obligation to provide
reasonable accommodations ... includes accommodations that enable an employee to work without exacerbating his medical condition or increasing his pain....”
Id., 20.
In an amicus brief in a more recent Eleventh Circuit case, the EEOC argued that a hearing-impaired
employee is entitled to “an interpreter or equivalent
accommodation ... if necessary for him to enjoy the benefit and privilege of understanding and participating
in workplace meetings, trainings, or social events, even
if [the employer] ‘pronounced itself fully satisfied’ with
his ‘level of performance’ absent such an accommodation.” Brief for the EEOC as Amicus Curiae in Support
of Plaintiff-Appellant, Beasley v. O’Reilly Auto Parts, 69
F.4th 744 (11th Cir.2023) (quoting Bell v. O’Reilly Auto
Enters., LLC, 972 F.3d 21, 24 (1st Cir.2020)).
In two administrative adjudications, the EEOC
has endorsed the Ninth Circuit decision in Buckingham and the Tenth Circuit decision in Sanchez. Helena
A. v. Kijakazi, 2022 WL 3715444 (E.E.O.C.), at *6 (reasonable accommodation includes transfer for purposes
31
of medical treatment or therapy); Reina D. v. Berryhill,
2017 WL 642230, at *12 (E.E.O.C.) (same).
Equally importantly, as a practical matter, the
Eighth Circuit decision is inconsistent with decades of
EEOC guidance to employers and employees regarding
their obligations and rights under the ADA. The EEOC
has issued a series of Guidances, spelling out with regard to particular disabilities the type of accommodations which an employee with that disability is likely
to need, and to which—absent undue hardship—an
employee might be entitled. The Commission has published, and makes available on its website, separate
Guidances regarding the rights under the ADA of employees with diabetes, epilepsy, cancer, mental health
conditions, psychiatric disabilities, hearing disabilities, visual disabilities, and intellectual disabilities,
and of employees who are pregnant.13 The touchstones
13
EEOC, Diabetes in the Workplace and the ADA, “Accommodating Employees with Diabetes”; “An employer must provide
a reasonable accommodation that is needed because of the diabetes itself, the effects of medication, or both”; “10. What other types
of reasonable accommodations may employees with diabetes
need?,” available at https://www.eeoc.gov/laws/guidance/diabetesworkplace-and-ada;
EEOC, Epilepsy in the Workplace and the ADA, “Accommodating
Employees with Epilepsy”; “What types of reasonable accommodations may employees with epilepsy need?”; “permission to bring
a service animal to work,” available at https://www.eeoc.gov/laws/
guidance/epilepsy-workplace-and-ada;
EEOC, Enforcement Guidance on the ADA and Psychiatric Disabilities, “Selected Types of Reasonable Accommodations,” ¶¶ 23-29;
EEOC, Hearing Disabilities in the Workplace and the Americans
with Disabilities Act, “9. What types of reasonable accommodations may applicants or employees with hearing difficulties
32
of whether an employee is entitled to a reasonable accommodation are whether the employee needs an accommodation to avoid disability-related harm, and
whether the requested accommodation would impose
undue hardship on the employer. None of these Guidances limits the right to a reasonable accommodation
need?,” available at https://www.eeoc.gov/laws/guidance/hearingdisabilities-workplace-and-americans-disabilites-act;
EEOC, Visual Disabilities in the Workplace and the Americans
with Disabilities Act, “10. What are examples of reasonable accommodations that some applicants or employees with visual
disabilities may need?,” “[a]llowing use of an assistance animal,
such as a guide dog, in or to access the workplace,” available at
https://www.eeoc.gov/laws/guidance/visual-disabilities-workplaceand-americans-disabilites-act;
EEOC, Persons with Intellectual Disabilities in the Workplace
and the ADA, “5. What specific types of reasonable accommodations may employees with intellectual disabilities need to do their
job or to enjoy the benefits and privileges of employment?”;
EEOC, Cancer in the Workplace and the ADA, “accommodating
Employees with Cancer”; “10. What other types of reasonable
accommodations may employees with cancer need?,” available at
https://www.eeoc.gov/laws/guidance/cancer-workplace-and-ada;
EEOC, Mental Health Conditions [:] Resources for Job Seekers,
Employees, and Employers “If a reasonable accommodation would
help you to do your job, your employer must give you one unless
the accommodation involves significant difficult or expense,”
“You can get a reasonable accommodation for any mental health
condition that would, if left untreated, ... ‘substantial limit’ ... and
... ‘major life activity,’ ” available at https://www.eeoc.gov/laws/
guidance/depression-ptsd-other-mental-health-conditions-workplaceyour-legal-rights;
EEOC, Legal Rights of Pregnant Workers under Federal Law, “3.
What if I am having difficult doing my job because of pregnancy
or medical condition related to my pregnancy?,” available at
https://www.eeoc.gov/laws/guidance/legal-right-pregnant-workerunder-federal-law.
33
to employers who provide the same accommodation to
workers without disabilities, or to accommodations
that are not directly related to the job at issue. The
EEOC has two publications regarding accommodating
veterans with disabilities, which address post traumatic stress disorder and traumatic brain injuries.14
The Guidance regarding diabetes is typical.
EEOC, Diabetes in the Workplace and the ADA.15 The
publication ties the right to accommodation to whether
a need for an accommodation arises because of diabetes or diabetes medication.
The ADA requires employers to provide adjustments or modifications—called reasonable accommodations—to enable ... employees
with disabilities to enjoy equal employment
opportunities unless doing so would be an undue hardship (that is, a significant difficulty
or expense).... An employer must provide a
reasonable accommodation that is needed because of the diabetes itself, the effects of medication, or both. For example, an employer
may have to accommodate an employee who
14
EEOC, Veterans [:] Understanding Your Employment
Rights under the Americans with Disabilities Act (ADA), “What
types of reasonable accommodations may I want to request for the
application process or on the job?”;
EEOC, Veterans and the Americans with Disabilities Act: A
Guide for Employers, “8. What types of reasonable accommodations may veterans with disabilities need for the application process or during employment?”
15
Available at https://www.eeoc.gov/laws/guidance/diabetesworkplace-and-ada.
34
is unable to work while learning to manage
her diabetes or adjusting to medication.
Id. The Guidance lists a number of accommodations
related to medical needs that might be required, such
as “[a] private area to test their blood sugar levels or
to administer insulin injections,” “[b]reaks to eat or
drink, take medication, or test blood sugar levels ... ,”
and “[l]eave for treatment, recuperation, or training on
managing diabetes.” Id. The EEOC also explains that
accommodation may be needed because the employee,
as a result of diabetes, has difficulty engaging in certain activity. For example, an employer may need to
“[a]llow a person with diabetic neuropathy that makes
it difficult to stand for long periods of time to use a
stool.” Or the needed accommodation might be “redistribution of marginal tasks to another employee.”16
These disability-specific EEOC Guidances are palpably inconsistent with the exceedingly narrow Eighth
Circuit standard.
III. IT IS IMPORTANT THAT THE CIRCUIT
CONFLICT BE PROMPTLY RESOLVED
There is a clear difference between the Eighth Circuit standard, and the standard in multiple other
16
“Example ... : A janitor, who had a leg amputated because
of complications from diabetes, can perform all of his essential job
functions without accommodation but has difficulty climbing into
the attic to occasionally change the building’s air filter. The employer likely can reallocate this marginal function to one of the
other janitors.”
35
circuits, regarding when an employee who has a disability, but is able to perform the essential functions of
his other job, is entitled to a reasonable accommodation under the ADA. In most circuits that employee
need only show that—absent a reasonable accommodation—he or she will suffer a disability-related harm
or difficulty in connection with his or her employment.
The Eighth Circuit requires far more; the particular
type of accommodation the employee seeks must be an
existing employer-provided benefit that is accorded to
workers without disabilities. Many important accommodations by their very nature would not meet the
Eighth Circuit test. Under that test, the district court
explained, a disabled worker who wants to bring his or
her service dog to work would have to prove that his or
her employer provides service dogs to workers who are
not disabled; but surely employers not provide service
dogs to workers who do not need them.
That conflict means that decidedly different legal
standards are applied to reasonable accommodation
claims depending on the circuit in which they are
filed. The claim rejected by the Eighth Circuit in this
case would have survived in the First, Third, Fifth,
Sixth, Seventh, Ninth, Tenth and District of Columbia
Circuits, and in Montana courts. In an economy in
which many large employers operate in multiple
states, that conflict in the governing standards has peculiar and untoward consequences. Whether a disabled
employee is entitled to a reasonable accommodation
would depend on where he or she works. If the train
Mr. Hopman was driving went from Arkansas (in the
36
Eighth Circuit) into Texas (in the Fifth Circuit) or
Oklahoma (in the Tenth Circuit), he would have a viable claim in the federal courts in those states. And a
multi-state employer, ordinarily operating a single
human resources system, would be subject to different
legal requirements depending on the location of the
plant or office where a particular disabled employee
worked.
The circuit split imposes significant burdens on
the EEOC, because a single EEOC district office could
have to apply different legal standards to ADA claims,
depending on where the charging party worked. Arkansas, where Hopman was located when he filed his
ADA charge, is overseen by the EEOC district office in
Memphis, which now must apply a different standard
to charges originating in Arkansas than it does to
charges originating in Tennessee. The EEOC district
office in Chicago applies Seventh Circuit standards to
claims from Illinois, but would have to apply the very
different Eighth Circuit standard to claims from
Minnesota or the Dakotas. The numerous disabilityspecific Guidances on the EEOC website are no longer
an accurate guide to the legal requirements applicable
to employers in the Eighth Circuit.
Recipients of federal funds are subject to the reasonable accommodation requirements of the Rehabilitation Act; that statute directs federal agencies
providing such funds to use ADA standards. 29 U.S.C.
§ 794(d). Many recipients of federal funds operate in
multiple circuits. It is difficult to understand how a federal agency would enforce the Rehabilitation Act when
37
the same recipient of federal funds is subject to conflicting federal standards.
The denial of a needed accommodation can obstruct in the most direct way the equal employment
opportunity which the ADA was enacted to guarantee.
In EEOC v. Dolgencorp, LLC, a diabetic worker, denied
the accommodation of keeping orange juice at her work
station, purchased a bottle of juice from the company
store to fend off a hypoglycemic episode, and was then
fired for violating a company policy against such purchases. 899 F.3d at 434-35. In Fults v. Nissan North
America, Inc., 2020 WL 12862964 (E.D. Tenn. Sept. 16,
2020), an asthmatic employee needed to use an inhaler
with Ventolin, a medicine which causes false positive
breathalyzer tests. Her employer refused to accommodate that medicine by permitting her to take an alternative alcohol test, and fired her when she repeatedly
failed the breathalyzer test. In Meachem v. Memphis
Light, Gas Water Division, 2017 WL 11681788 (W.D.
Tenn. March 29, 2017), a woman with a high-risk
pregnancy which required her to stay in bed to avoid a
miscarriage was denied the accommodation of being
permitted to work from home; when her sick leave ran
out, she was unpaid for the rest of her pregnancy. In
Jones v. Lubbock Hospital District, 834 Fed. Appx. 923
(5th Cir.2020), an employee with severe breathing difficulties was forced to resign when his employer
38
refused to permit him to wear an over-the-shoulder
oxygen tank at work.17
The violation of the ADA is as clear, and as serious,
when the denial of a reasonable accommodation forces
an employee with a disability to work in pain, as it did
Mr. Hopman. This Court recognized long ago that Title
VII is violated if a woman or man has to endure sexual
abuse “in return for the privilege of being allowed to
work and make a living....” Meritor Savings Bank, FSB
v. Vinson, 477 U.S. 57, 67 (1986). An employee with a
disability who must endure severe migraine headaches, nausea, and flashbacks of bloody carnage, repeatedly vomiting out the window of his locomotive,
assuredly is not “enjoy[ing] equal ... privileges of employment as are enjoyed by ... employees without disabilities.” 29 C.F.R. § 1630.2(o)(1)(iii).
IV. THIS CASE IS AN EXCELLENT VEHICLE
FOR RESOLVING THE CONFLICT
This case is an ideal vehicle for resolving the circuit conflict. The sole basis on which Hopman’s claim
17
See, e.g., Lett v. Southeastern Pennsylvania Transp. Authority, 2022 WL 4542093, at *16 (E.D. Pa. Sept. 27, 2022) (employee resigned when denied accommodation needed to obtain
dialysis treatment); Blickle v. Illinois Dept. of Children and Family Services, 2013 WL 2467651, at *3 (N.D. Ill. June 7, 2013) (employee resigned when denied accommodation needed to obtain
treatment for back condition); Sturz v. Wisconsin Department of
Corrections, 642 F.Supp.2d 881 (W.D. Wis. 2009) (employee retired after one year delay in providing accommodations needed
because of degenerative joint disease); Morales v. Bellsouth Telecommunications, 2009 WL 1322577, at *12 (employee resigned
when denied accommodation needed to alleviate back pain).
39
was rejected by the lower courts was their narrow
interpretation of when the ADA and the applicable
regulations require an employer to accommodate the
disability of a qualified individual with a disability.
There is no dispute in this case that Hopman is disabled, or that he was qualified for the position he held.
Union Pacific does not question the extent of the pain
that Hopman suffers in the absence of the requested
accommodation, or challenge Hopman’s evidence
that permitting him to bring the service dog with
him at work would at least largely end that suffering.
Although the defendant argued at trial that the requested accommodation would cause it undue hardship, the jury rejected that factual contention, and the
defendant has not challenged the jury’s finding.
The facts relevant to the differing proposed legal
standards are not in dispute. Under the legal standard
announced by the Eighth Circuit, Hopman’s claim was
necessarily rejected. The court of appeals below held
that, absent the need for an accommodation to perform
the essential functions of a position, an accommodation
is required only if an employee with a disability does
not have equal access to a specific employer-provided
program or service that is available to non-disabled
employees. In this case, the district court explained,
that meant that Hopman was required to show that
Union Pacific provided service dogs to non-disabled
employees. Hopman concedes Union Pacific did not do
so. The court of appeals held that an accommodation
claim under section 1630.2(o)(1)(iii) is limited to an
employer-provided program or service that is not
40
directly job-related. The accommodation at issue in
this case is admittedly directly job-related; Hopman
wants to bring his service dog with him to work.
Conversely, under the legal standard applied in
multiple other circuits, Hopman’s claim would be upheld. There is no dispute that Hopman suffers significant disability-related pain and difficulty at work, and
that the requested accommodation would largely reduce if not eliminate that pain and difficulty. In those
circuits, that would be sufficient to entitle Hopman
(absent a showing of undue hardship) to a reasonable
accommodation. Which legal standard is the correct
one is thus dispositive.
---------------------------------♦---------------------------------
CONCLUSION
For the above reasons, a writ of certiorari should
issue to review the judgment and opinion of the Court
of Appeals for the Eighth Circuit, and to correct a
crabbed statutory interpretation that has prolonged
the suffering of a gravely wounded American veteran.
Respectfully submitted,
ERIC SCHNAPPER
Counsel of Record
University of Washington
School of Law
P.O. Box 353020
Seattle, WA 98195
(206) 616-3167
schnapp@uw.edu
41
JOHN W. GRIFFIN, JR.
MAREK, GRIFFIN & KNAUPP
203 North Liberty St.
Victoria, TX 77901
(361) 573-5500
KATHERINE L. BUTLER
BUTLER & HARRIS
1128 Cortlandt St.
Houston, TX 77008
(713) 443-6456
MICHAEL J. NEUERBURG
SIMMONS PERRINE MOYER
BERGMAN PLC
115 Third St. SE
Suite 1200
Cedar Rapids, IA 52401
(319) 366-7461
Counsel for Petitioner
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.