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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Catherine

I am a person with a disability and I have been unable to work consistently for the last 10 years, consequently, I am on Social Security Disability. I am not a malingerer, and it was not my choice to find myself in this position. A person who receives disability lives at or below poverty level, at least I am and I don't think I'm the only one. You are also stigmatized if a prospective employer finds you are suffering from an "invisible" disability. It's a nightmare, and it's not something that I'm proud of. When I have gotten part-time jobs here and there, the Social Security Administration sends me warning letters that I might be cut off if I "make too much" or the job is over a certain number of hours per week. I am 62-years-old now. If I was kicked off of disability, I would be homeless in a month because I live check to check, and not in a luxurious manner. I am so afraid of this current administration and it's inherent cruelty to the disenfranchised, the poor, women, senior citizens, refugees, I cannot describe the terror I am now living with daily. It is exacerbating my disability tenfold. Gorsuch must be stopped. In fact, the whole administration needs to be stopped Democracy is vanishing before our eyes.

Anonymous

In the case of the young man Luke, it's not clear why the case would even had gotten to the judge. If an IEP team agrees that a student should be placed in an RTC, then there is NO need for a judge to be involved. My guess is the school district on record sued the parents and continued to move in appeals. The judge followed the law as written, even though I don't agree with the law as a parent of a disabled child, as a judge he is bound by law.

Bruce Tipton

Many are objecting to a religious test within President Trump's immigration ban. I have not yet heard anyone object to President Trump's clear religious test for his Supreme Court nominee.

After choosing his nominee (and I assume after interviewing him) President Trump has publicly announced, with some pride, something to the effect that Christians will love him and that Evangelicals will love him. This is a bold and direct announcement by President Trump that he has indeed employed a religious test upon his nominee to our highest court.

As I marvel at our universe I do have questions I cannot answer. But I am not a Christian nor am I an Evangelical nor do I subscribe to any other religious organization. I am deeply offended by President Trump's religious test for a lifetime appointment to our highest court.

I believe President Trump himself has legally disqualified his nominee right out of the gate. I do not believe that his nominee could withstand a court challenge.

Anonymous

It is the job of judges to interpret and enforce laws. It is not the judges' job to create laws. Creation of laws is a function of the legislature. Support the nomination of Trump's supreme court nomination.

Anonymous1

If I was a suspicious person I'd wonder if you didn't link to the cases you mention because you don't want your readers to read them.

Ed Whelan

This piece gets a lot wrong and shouldn't be trusted. In each case, a liberal Clinton appointee joined Gorsuch's unanimous opinion. See here for more: http://www.nationalreview.com/bench-memos/444678/aclu-gorsuch-disabilities-autism

Anonymous

http://www.nationalreview.com/bench-memos/444678/aclu-gorsuch-disabilities-autism

Anonymous

Yes, it is true that the legislature creates laws. However, it's ironic that you point out that judges are supposed to interpret the law yet don't seem to consider what that actually means. As part of the system of checks and balances, judges can decide whether a law, as written, is unconstitutional. If the wording of the law is unclear, they can use their judgement (hence the reason they're called a JUDGE) based on their knowledge and experience, and also upon legal precedent to come to a decision. (And hopefully common sense, logic and compassion have roles as well.) That is what interpret means. Strict textualists like Gorsuch look at the exact wording and declare, that's that. So what, then, is the point of having a judicial system to review laws in the first place if that's all that's going to happen?

Anonymous

The ACLU comment on the Hwang ruling is clearly advocacy rather than an objective evaluation of the ruling. The court's decision mentioned two critical issues, one misstated, the other ignored, by the ACLU. First, the decision states "an absence in which she could not work from home, part-time, or in any way in any place." The comment's claim she could work from home misstates the record.
Second, a reasonable accommodation is one that allows the employee to be able to work. Professor Hwang wanted an accommodation (leave) that would have allowed her to not work. After six months, for a university professor, this was no longer reasonable. No amount of factual evaluation by the trial court would have changed this fundamental condition.
The other two circuit judges concurred. The ACLU's comment is an example of its inaccurate interpretation of the requirements of the Rehabilitation Act. The decision is an example of Judge Gorsuch's adherence to the law.

Anne Sandstrom

May you never get cancer. May you never have to undergo the brutality of a bone marrow transplant. May you never have to return to work after undergoing such an ordeal. I had cancer. The day before I was to return to work I got shingles. Fortunately, my company was compassionate and reasonable and extended my leave. I returned before the shingles healed, but as soon as my doctors deemed it safe. Do you honestly think this professor deserved to be further punished?

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