Supreme Court Nominee Neil Gorsuch Has a Troubling History When Ruling on Disability Rights Cases

President Donald Trump with Supreme Court nominee Neil Gorsuch at the White House. (Photo: The White House)

On Tuesday night, President Trump nominated Neil Gorsuch, a federal appellate judge, as his nominee to replace the late Antonin Scalia to the Supreme Court. As journalists and activists scour through Gorsuch’s judicial record, they would do well to pay attention to his decisions on disability rights.

Two cases stand out during Judge Gorsuch’s time at Tenth Circuit Court of Appeals.

Assistant Professor Grace Hwang worked at Kansas State University – with great success – for 15 years. After a cancer diagnosis, she requested and received a six-month leave of absence covering the fall 2009 semester while she recovered from a bone marrow transplant. As she was preparing to return to teaching in January, the campus erupted in a flu epidemic. Because a flu infection would have been dangerous, given her compromised immune system, Professor Hwang asked for further short leave, during which she could have worked from home.

The university denied her request, and Hwang sued.

Under established disability rights laws, a request for leave due to a disability must be evaluated on a case-by-case basis to decide whether the request would present an undue hardship to the employer. This is a factual determination. Yet, before any evidence could be presented in the case on whether such an accommodation might present a problem for KSU — a federally funded, multi-million-dollar employer — Judge Gorsuch ruled that Professor Grace Hwang’s request for an additional leave of absence was simply unreasonable.

In his ruling, Judge Gorsuch asserted that “showing up” was an essential job function and opined that the Rehabilitation Act should not “turn employers into safety net providers for those who cannot work.” But this was an error of both fact and law. Of course, it is important that an individual report to work. But Grace Hwang had demonstrated her ability to “show up” for 15 years, and she was even able to telecommute during the flu epidemic. There was no question that she could report to work on campus and that she would be able to do so again. What was at issue was whether the university should allow her a short additional leave as a reasonable accommodation to enable her to return to her full duties.

Judge Gorsuch’s ruling contravened Equal Employment Opportunity Commission guidance, every other circuit decision on the issue, and reasoning from the Supreme Court in U.S. Airways, Inc v Barnett.  In Barnett, the U.S. Supreme Court held that a reasonable accommodation may require the modification of a neutral employer rule, even if this functioned as a “preference” for the disabled employee. If Gorsuch followed Barnett’s reasoning in Hwang, the only thing required of the university would have been allowing the professor to work from home for a limited time.

A safety net it is not.

In a second disability rights case, an impartial hearing officer, an administrative law judge, and a federal district court judge all agreed that a young autistic boy, Luke, needed placement in a residential school program due to his total lack of progress in “generalizing” skills — applying skills learned at school to other environments. Judge Gorsuch wrote the opinion reversing. He found that because Luke was making “some progress” toward his education goals in the public school — even though it was undisputed there was no progress outside of school –the school district had met its obligations under the Individuals with Disabilities Education Act (IDEA). But Congress had made it clear that the IDEA should help students make progress toward independent living. Generally, not just in school. The narrow and outdated standard used by Judge Gorsuch is now under review in the U.S. Supreme Court.

If Gorsuch followed Barnett’s reasoning in Hwang, the only thing required of the university would have been allowing the professor to work from home for a limited time.

One of the primary principles underlying disability rights laws is the idea that there will be times when we need to level the playing field to give people with disabilities an equal opportunity — an opportunity to get an education, to get or keep a job, to be productive members of society. The Americans with Disabilities Act and other disability rights laws recognize financial, practical, and administrative burdens. But the laws also emphasize the individual nature of each situation. An accommodation that works for one person might not work for another. Similarly, what would be required for one employer might be a hardship for another. The court needs to look at the facts, not draw arbitrary, bright-line rules.

Judge Gorsuch rulings on the disability cases in front of him thus far raise important questions about his recognition of the rights of individuals with disabilities, and his willingness to ensure that we receive individualized justice.  

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Alysha Robinson

I am medically disabled with a rare illness called hidradenitis or acne invarious (an autoimmune disease that causes deep abscesses to form under scar tissue). I am that rare minority bird that received disability the first time (under the Bush administration). I applied and was accepted because the determination committee was diligent enough to look through not only my photographic evidence and surgical procedure history but they also took time to read my personal story about my reluctance to join a system I could no longer contribute to by working.
Mr. Gorsuch's rush to dismiss a precautionary request with valid reasons, before having adaquate evidence, terrifies me. How many other people, with crippling illnesses will be denied basic services, medical supplies, reasonable accommodation for their special needs or paid sick time for their medical absences with a man too self assured to read the evidence they gather???
I cannot afford to give a donation as my benefits do not cover my financial needs, but I hope my story inspires others to give in defense of us unable to contribute.


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Carol Boigon, Denver

What stands out is Neil Gorsuch's callous cruelty both to those with life-long disabilities and to healthy people who undergo temporary illness and setback. In other words, he attacks all of us trying to live independent lives. Does he want every disabled person to be unable to get a job and be independent and every working person to lose a job with the first serious illness?


I'm disabled myself with one of the Autism spectrum disorders. The Social Security Administration agreed that due to my disability I'm not capable of sustaining employment, and as much as I'd like to be able to support myself and get off of welfare, I have to agree with them.

This new Supreme Court Justice is one of those people that I'm sure would say "But you're physically capable of working, so get out there, we're cutting you off" and totally ignore mental disabilities. I don't think we'll succeed in blocking him, after all, the Republicans blocked Obama from nominating a Justice for almost a year, showing just how little they care for the Justice system. But, I think we still need to fight back against Fuhrer Trump and his cronies, we just need to get creative about it, and never stop fighting them.


Your argument was good until you attacked with name calling.


This is the third hit piece on Judge Gorsuch by the Aclu. They say they dont take sides on nominations but this is their way of trying to destroy a conservative judge without actually saying that is what they are doing.


I don't think the ACLU is the one destroying his reputation. His rulings speak for themselves. His lack of understanding and following of law destroys his reputation.

George L. Kovacs

I'm an Aspergers Syndrome who can't work after a career of 35 years. I am dependent on Social Security and VA disability, Gorsuch is too arbitrary and rigid in his decisions. He won't decide in favor of the disabled.


It's this Judge's record is destroying him. His own actions. Sharing the information is being transparent and showing the truth of this man's character and integrity on issues. He's problematic as majority of Trump'choices.
People be careful with all the distractions and smoke and mirrors. Keep your eye on Trump not his underlings.


My daughter has a rare neuro-degenerative disease which has left her wheelchair-bound. I need to let Gorsuch know that I will fight him tooth and nail if he so much as THINKS he can deprive her of any of her rights as a disabled American.


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