Opening up the Possibilities for Defendant’s to Get Attorney’s Fees in ADA Matters

Today’s blog entry has the potential to be a real game changer in ADA litigation. Before moving further, I do want everyone to know that I will be out of town next week at a family function. So, I will not be getting a blog up next week. I am not sure if I will have a chance to get another blog entry up this week, but in case I don’t, I will be back with a blog entry the following week. I already have a fascinating case in mind pertaining to higher education. Back to our case, CRST Van Expedited, Inc. v. EEOC.  Its facts are very convoluted, and so I will not bore you with them. The question this case presented is whether for a defendant to recover attorneys fees under title VII, must the defendant receive a favorable ruling on the merits before that can happen. This particular blog entry is only divided into two categories: court’s reasoning and takeaways. The blog entry is so short that I figure the reader will want to read all of it. However, it is conceivable that the reader may be interested in only the court’s reasoning or the takeaway sections, and so you have the option of focusing on one or both of the categories.


In holding that a ruling on the merits is not necessary for a defendant to recover attorneys fees, the Supreme Court reasoned as follows:

  1. When it comes to recovering attorneys fees, the critical question is whether there has been a material alteration of the legal relationship of the parties.
  2. When a plaintiff secures an enforceable judgment on the merits or a court order consent decree, that plaintiff is the prevailing party because he has received a judicially sanctioned change in the legal relationship of the parties.
  3. When a defendant is the prevailing party in a civil rights claim, attorneys fees are permissible if the plaintiff’s claim was frivolous, unreasonable or groundless, or if the plaintiff continues to litigate after it clearly became so.
  4. A plaintiff seeks a material alteration in the legal relationship between the parties. On the other hand, a defendant seeks to prevent this alteration to the extent it is in the plaintiff’s favor. While the defendant might prefer a judgment vindicating his position regarding the substantive merits of the plaintiff’s allegations, the defendant fulfills his primary objective whenever plaintiff’s challenges are rebuffed, irrespective of the precise reason for the court decision. Accordingly, the defendant may prevail even where the court’s final judgment rejects the plaintiff’s claim for a nonmerits reason.
  5. The congressional policy regarding the exercise of District Court discretion in the ultimate decision whether to award fees does not distinguish between merits-based and non-merits-based judgments.
  6. The Supreme Court has interpreted the fee shifting statute to allow a prevailing defendant to recover whenever the plaintiff’s claim was frivolous, unreasonable, or groundless. It would make little sense if the congressional policy of sparing defendants from the cost of frivolous litigation depended upon the distinction between merits-based and non-merits-based frivolity. Congress must have intended that a defendant could recover fees expended in frivolous, unreasonable, or groundless litigation when the case is resolved in the defendant’s favor, whether on the merits or not.
  7. Imposing an on-the-merits requirement for defendant to obtain prevailing party status undermines congressional policy by blocking a whole category of defendants for whom Congress wished to make the awards available.
  8. Various Courts of Appeals have allowed a defendant attorney’s fees when the claims were dismissed for nonmerit reasons. For example, a plaintiff’s claim may be frivolous, unreasonable, or groundless if the claim is barred by State sovereign immunity or is moot.





  1. This case has the potential to be a game changer with respect to ADA litigation for the reasons described in this section.
    1. The reference to sovereign immunity is a big deal. As we have seen over and over again in our blog entries, sovereign immunity and the ADA is extraordinarily complicated because people with disabilities fall into various equal protection tiers depending upon the facts. So, it often times is far from clear whether sovereign immunity applies in a particular situation with respect to an ADA claim. Hopefully, if sovereign immunity is not clear and the plaintiff loses, a court would not award attorney’s fees to the defendant automatically because in that case sovereign immunity waiver was a colorable claim. Of course, if there is a suit and the statute is clear that the State has not waived sovereign immunity with respect to that topic, that is quite a different kettle of fish and attorney’s fees should be awarded in that situation.
    2. It is the mootness section of the opinion that has the potential to profoundly affect litigation, particularly in the area of title III of the ADA. When it comes to architectural accessibility, because the architectural guidelines are specifically tied into the statute, violation of the guidelines is pretty much a strict liability situation. So, as we discussed in this blog entry, it makes sense to fix the problem thereby mooting it. What this case does, is it says that if the problem is mooted and the plaintiff continues to litigate, the defense can collect attorney’s fees. So, when faced with a serial plaintiff or a plaintiff claiming architectural inaccessibility, a defendant would do well to immediately make the modifications that are readily achievable per 28 C.F.R. § 36.304(b) utilizing the priority system set forth in 28 C.F.R. § 36.304(c). If despite that, the plaintiff continues to litigate, then per this case, the defendant should seek attorneys fees.
  2. The opinion says that the defendant’s brief collects cases talking about when the United States Courts of Appeals have allowed for a defendant to get attorneys fees in nonmerit situations. Looking at that brief on pages 33-34, reveals the following additional situations:
    1. Claim barred by the tax injunction act;
    2. Unreasonable to continue litigation when plaintiff’s’ learned suit was certainly time-barred (as we have seen in this blog entry, the statute of limitations for ADA claims can be very uncertain);
    3. The results should have been obvious from the inception of the litigation;
    4. Defendant unequivocally protected by absolute judicial immunity (this could be an issue if suing a state court system depending upon how the complaint is structured);
    5. The appeal was clearly frivolous.
  3. So, with respect to ADA litigation, it is possible that paragraph 2 of this section may come in the play, but it is paragraph 1 of this section that has the potential to have a huge impact on ADA litigation.

EEOC Final Rule on Interaction of ADA with Wellness Plans

Today’s blog entry continues my string of weeks where I have not been dissecting cases. I had a case all lined up for this week and was excited about getting back to my dissection. However, yesterday, the EEOC decided to issue final rules detailing how wellness programs relate to the ADA. Those rules can be found here. Therefore, this blog entry will jump on that. Please note, I am committed to getting back to my dissection of cases. I have some good ones lined up.


Back to this blog entry. Here are the salient points:

  1. The rule goes into effect 60 days from May 17, 2016.
  2. The rule applies to wellness programs considered “employee health program,” under title I of the ADA. It does not apply to programs provided by entities other than those subject to title I, such as social service agency covered under title II of the ADA, or places of public accommodation subject to title III of the ADA that may be providing similar programs to individuals who are considered volunteers.
  3. All of the provisions in the rule, including the requirement to provide notice and limitations on incentives, are applicable to all employee health programs that ask employees to respond to disability related inquiries and/or undergo medical examinations.
  4. A participatory wellness program either does not provide a reward or does not include any condition for obtaining a reward that is based on the individual satisfying a standard related to a health factor. A health contingent wellness program is a program that may be either activity-only or outcome-based and requires individuals to satisfy a standard related to a health factor to obtain a reward.
  5. The rule will with respect to allowable incentives applies prospectively to employer wellness programs as of the first day of the first plan year that begins on or after January 1, 2017.
  6. The safe harbor for insurance plans does not, according to the EEOC’s view, apply to wellness programs where rewards or penalties are offered for participation in those programs. That view is specifically stated in the final rule itself. The EEOC view is that they disagree and feel that case law to the contrary, here and here, is just wrong for several reasons, which they elaborate on in the comments discussing the final rule. As to another approach as to why those cases might be wrong, check out this blog entry of mine.
  7. The 30% limit for incentives against the silver plan, if you are talking about insurance exchanges, and against the cost of self-coverage if you are talking about insurance through the employer applies to both participatory wellness programs as well as contingent wellness programs.
  8. All provisions in the final rule, including the requirement to provide a notice and the limitations on incentives, are applicable to all wellness programs that includes disability -related inquiries and/or medical examinations. That means the rule applies to the following kinds of wellness programs: those offered only to employees enrolled in an employer-sponsored group health plan; those offered to all employees regardless of whether they are enrolled in such a plan; or those offered as a benefit of employment by employers that do not sponsor a group health plan or group health insurance.
  9. For the incentives to pass muster, the program must be reasonably designed. That is the program must have a reasonable chance of improving the health of, or preventing disease in, participating employees and must not be overly burdensome, a subterfuge for violating the ADA or other laws prohibiting employment discrimination, or highly suspect in the method chosen to promote health or prevent disease. Program consisting of a measurement, test, screening, or collection of health-related information without providing results, follow-up information, or advice designed to improve the health of participating employees would not be reasonably designed to promote health or prevent disease, unless the collected information actually is used to design a program addressing at least a subset of conditions identified.
  10. The EEOC specifically rejected the suggestion that merely offering employees the choice whether or not to participate would render a program’s participation voluntary. The 30% maximum of the total cost of self only coverage/silver plan for insurance exchange does not without more render a wellness program coercive.
  11. When an employer denies access to a health plan because the employee does not answer disability related inquiries or undergo medical examinations, that is discrimination against the employee in violation of the ADA as it requires employees to answer questions or undergo medical examination that are not job-related and consistent with business necessity and therefore, cannot be considered voluntary.
  12. An employer may not retaliate against, interfere with, coerce, intimidate, or threaten employees by coercing an employee to participate in an employee health program or by threatening to discipline an employee who does not participate.
  13. The notice requirement applies to all wellness programs that ask employees to respond to disability related inquiries and/or undergo medical examinations. That notice must be in a language reasonably likely to be understood by the employee from whom medical information is being obtained. It also must clearly explain what medical information will be obtained, how the medical information will be used, who will receive the medical information, the restrictions on the disclosure, and the method the covered entity uses to prevent improper disclosure of medical information.
  14. A similar set of rules was published by the EEOC at the same time with respect to the extent to which employers may offer incentive for spouses and other family members to provide health-related information as part of a wellness program without violating Genetic Information Nondiscrimination Act.
  15. The final rule retains a distinction in consequences between smoking cessation program that require employees to be tested for nicotine use and programs that merely ask employees whether they smoke. While whether someone smokes is not information about a disability, the ADA’s provision limiting disability-related inquiries and medical examinations apply to all applicants and employees regardless of whether they have a disability. Further, it is the EEOC view that whatever benefit smoking cessation programs that are a part of wellness program may have, the EEOC cannot discern any reason for treating medical examination to detect the use of nicotine differently from any other medical examinations when the ADA makes no such distinctions.
  16. The final rule adds some additional requirements to further protect employees’ personal health information, including, for example, a provision that a covered entity may not require an employee to agree to the sale, exchange, sharing, transfer, or other disclosure of medical information (except to the extent permitted by the regulations to carry out specific activities related to the wellness program), or to waive confidentiality protections available under the ADA as a condition for participating in a wellness program or receiving a wellness program incentive.
  17. A covered entity can only receive information collected as part of an employee health program in aggregate form that does not disclose, and is not reasonably likely to disclose, the identity of specific individuals except as is necessary to administer the plan or as permitted by the regulations.
  18. In the interpretive guidance, the EEOC make the sensible point that individuals handling medical information part of an employee health program should not be responsible for making decisions related to employment, such as hiring, termination, or discipline. Employers administering their own wellness program need adequate firewalls in place to prevent unintended disclosure. If individuals who handle medical information obtained through a wellness program to act as decision-makers, they may not use the information to discriminate on the basis of disability in violation of the ADA.


  1. The hardest part of the regulations is probably going to be the 30% rule, which applies to both health contingent and participatory wellness programs.
  2. If an employee’s native language is not English, a foreign language or ASL, you want to be sure that the notice is somehow communicated effectively to the employee.
  3. The EEOC has made it clear that they are going to fight all the way to the end for their view that Seff and Flambeau, referenced above, are not good law.
  4. Conditioning participation in an employee health plan based upon participation in a wellness program is coercive.
  5. Understanding the ADA scheme dealing with medical exams and disability related inquiries is still very important. See this blog entry for example for discussion of that scheme.
  6. While beyond the scope of this blog entry, the corresponding rules for the Genetic Information Nondiscrimination Act, mentioned above, are quite similar, but you will want to look at that as well (for example, kids are always out and spouses are in subject to the same 30% rule).

EEOC Publication Employer-Provided Leave and the ADA

You may be asking why didn’t I blog yesterday or so far this week. The answer is I actually spent two hours trying to put a blog together yesterday. The blog was going to cover the Department of Justice Accessibility of Web Information and Services of State and Local Government Entities Supplemental Amended Notice of Proposed Rulemaking (must reading by the way for Title II and III entities), issued on May 8. I tried to do my usual dissection. Two hours later, I realized I was only a third of the way through. I also realized that organizing the blog discussing that proposed rulemaking in a way that wouldn’t overwhelm the reader was going to be impossible. So, I blew the whole thing up. That left me with what to do next. That was solved when the employment law blogosphere lit up when the EEOC issued the publication, “employer-provided leave and the Americans With Disabilities Act.”  Another problem was solved of not having to do an intensive analysis (things are crazy busy for me at the moment), of the EEOC publication because Philip Miles in his blog, which I just added to my blog roll today though I have been subscribing to his blog for some time, collects the blogs of several employment lawyers who have written on this. You can find his blog here. I have absolutely no doubt that Robin Shea in her blog , I am sure she is overwhelmed by bathroom issues:-( , will be weighing in soon as well. So what are my thoughts?

  1. The other bloggers all have great points and I commend you to their blogs for reading.
  2. I really don’t get it. I think it is because maybe I do this all the time, and I just make assumptions that it is obvious when it isn’t. That is, much of what is in here are things that should be already being done. It makes you wonder why they are not. The only thing I can think of is that lawyers don’t realize how complicated the ADA can get, even just within one title. If you are in a complicated area, get help if you’re at all not sure where it is going. I see some lawyers do this, but you would be amazed at how many lawyers don’t do this. For those who are a bit uncertain in the area covered by this publication, the publication will give them some comfort. It will also unfortunately probably act as a crutch, which is my usual problem with guidances. In other words, my problem with guidances in general, is that they often wind up substituting for independent legal judgment and they shouldn’t. For example, see the rest of my comments below.
  3. I am a bit bothered by the EEOC strongly suggesting that the leave request is automatic if an undue hardship is not present. To me, that is a paradigm error. Of course, if no undue hardship is present then a reasonable accommodation is in order. However, what if the interactive process comes up with something besides the leave? The interactive process does not demand that the plaintiff gets what he/she demands. Rather, it demands a meeting of the minds. Ultimately, the choice isn’t even the employee’s so long as the interactive process occurs and the employee gets to the same starting line as a person without a disability.
  4. While it is perfectly okay to reach out to an employee on extended leave to check on their progress, an employer cannot ask the employee to provide periodic updates when it has already granted a leave with a fixed return date.
  5. 100% healed returned to work policies are out, but you already knew that:-)
  6. The EEOC’s view is that should a person no longer be a qualified person with a disability for the particular position they are in, reassignment is mandatory (the employee cannot be required to compete with other applicants for open positions), if there is a vacant position for which he is qualified. As we know, case law is all over the place on this point, and it will be up to the Supreme Court at some point to figure this one out.
  7. There is extended discussion about the interplay between FMLA and the ADA. The discussion struck me as a matter of common sense, but………. I guess not.