Lawsuit alleging California tech giant aided Chinese torture may proceed, 9th Circuit says [Los Angeles Times :: BC-CALIF-TECH-TORTURE-LAWSUIT:LA]

Lawsuit alleging California tech giant aided Chinese torture may proceed, 9th Circuit says [Los Angeles Times :: BC-CALIF-TECH-TORTURE-LAWSUIT:LA]

LOS ANGELES — A lawsuit alleging San Jose-based technology giant Cisco Systems Inc. and two former executives aided the Chinese government in tracking and torturing adherents of the Falun Gong religious movement may proceed to trial, the 9th U.S. Circuit Court of Appeals ruled Friday. Falun Gong members alleged in 2011 that Cisco provided China […]


CalMatters Commentary: California’s gig worker battle takes new turn after court ruling

CalMatters Commentary: California’s gig worker battle takes new turn after court ruling

The seemingly perpetual political and legal battle over whether gig workers for Uber, Lyft, Doordash and services are contractors or employees took another turn last week and may go full circle – back to the state Supreme Court and possibly a second trip through the Legislature. A state appellate court upheld all but one section […]


9th Circuit sides with employers in dispute over California law barring forced arbitration

9th Circuit sides with employers in dispute over California law barring forced arbitration

Kevin Rector, Los Angeles Times, (TNS) A California law barring employers from requiring their employees to resolve serious workplace complaints in private runs afoul of federal law, a federal appellate court ruled Wednesday. The 2 to 1 decision by a three-judge panel of the U.S. 9th Circuit Court of Appeals marked a legal victory for […]


Hahn v. ConocoPhillips — another case on fractional vs. fraction of royalty

Last week the Corpus Christi Court of Appeals issued a decision on a long-running dispute over reservation of a royalty interest in a deed. This is the court’s second opinion in the case.

In the court’s first opinion in 2018, the court construed the following royalty reservation:

SAVE AND EXCEPT and there is hereby reserved to [Hahn] herein, his heirs and assigns, an undivided one-half (1/2) non-participating interest in and to all of the royalty [Hahn] now owns, (same being an undivided one-half (1/2) of [Hahn’s] one-fourth (1/4) or an undivided one-eighth (1/8) royalty) in and to all of the oil royalty, gas royalty and royalty in other minerals in and under and that may be produced from the herein described property.


California Appellate Court Holds Persons Who Associate With Persons With Disabilities Can Have Batson Challenges Exercised on Their Behalf

Previously, such as here, I have written about how Batson/Edmonson challenges could be used with respect to people with disabilities not being allowed to serve on juries. The interesting thing about Batson and its civil equivalents is that whenever I have asked litigators if they have encountered the situation of using Batson to prevent exclusion of persons with disabilities from serving on juries, they tell me they have not. On November 7, 2022. The Court of Appeals of the State of California, Second Appellate District, in Unzueta v. Akopyan, a published decision, here, holds that under California law people who associate with persons with disabilities have a right to be free from discrimination in jury selection. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that trial court erred in denying the Batson/Wheeler challenges; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.





Plaintiff alleged in her complaint that the defendant, the anesthesiologist during the birth of her child, negligently administered an epidural injection resulting in the paralysis of plaintiff’s right leg below the knee. Plaintiff lost at trial and appealed. On appeal, the appellate court held that the trial court erred in denying Batson/Wheeler (Wheeler is the California equivalent of Batson), challenges and said that the trial court had to revisit each of the challenged jurors to see if impermissible discrimination had occurred. If such impermissible discrimination occurred, the trial court was to reinstate the judgment. On remand, defendant’s attorney asserted that two of the prospective jurors were excluded because they had a family member who was disabled and the attorney feared the family member’s disability would cause the particular juror to be biased in favor of the plaintiff. One of the prospective jurors had a child with a disability. The other prospective juror had a husband who was disabled, unable to work, and had an outstanding Worker’s Compensation matter. The trial court found those justifications to be race neutral and plaintiff appealed saying that excluding the two prospective jurors based upon the disabilities of their family members was by itself discrimination based upon protected characteristics and therefore impermissible.



Court’s Reasoning That Trial Court Erred in Denying the Batson Challenges


  1. While peremptory challenges are a long-standing feature of both the civil and criminal systems in America, the exercise of even a single peremptory challenge solely on the basis of race or ethnicity offends the guarantee of equal protection of the laws under the 14th amendment to the U.S. Constitution. It also violates a defendant’s right to trial by a jury drawn from a representative cross-section of the community under the California Constitution.
  2. The prohibition against the exercise of peremptory challenges to include prospective jurors on the basis of group bias applies to both civil and criminal cases.
  3. Excluding evening a single prospective juror for reasons impermissible under Batson/Wheeler requires reversal.
  4. The three-step process for evaluating a Batson/Wheeler motion works like this: 1) the party objecting to the strike must establish a prima facie case by showing facts sufficient to support an inference of discriminatory purpose; 2) if the objector succeeds in establishing a prima facie case, the burden shifts to the proponent of the strike to offer a permissible nonbiased justification for the strike; and 3) if the proponent does offer a nonbiased justification, the trial court must decide whether that justification was genuine or instead whether impermissible discrimination impact motivated the strike.
  5. At the second step of the Batson/Wheeler analysis, the party exercising the peremptory challenge cannot justify an allegedly impermissible challenge with a different impermissible justification (i.e. that two of the six jurors had family members with disabilities). In other words, getting past the second step is not going to happen if what is happening is the substitution of an impermissible justification for another.
  6. When the trial court makes a sincere and reasoned effort to evaluate the proffered reasons for the strike, the reviewing court defers to its conclusions on appeal and examines only whether substantial evidence supports them.
  7. Batson/Wheeler challenges are subject to independent review on appeal.
  8. The United States Supreme Court has extended Batson/Wheeler motions to prevent the exercise of peremptory challenges to those based upon gender.
  9. The California Constitution prohibits the use of peremptory challenges on account of bias against an identifiable group distinguished on racial, religious, ethnic, or similar grounds.
  10. In 2000, California legislature expanded the list of groups subject to a Batson/Wheeler motion to race, color, religion, sex, national origin, sexual orientation, or similar grounds.
  11. In 2015, the California legislature expanded the list further by referencing §11135 of the Government Code, which specifically references mental disability, physical disability, genetic information, and medical condition among other things. §11135(d) also applies to people who associate with a person who is perceived or has any of the characteristics listed in the Government Code.
  12. Taking the 2000 and 2015 amendments together, means using peremptory challenges to exclude prospective jurors on the basis a person with whom the juror is associated with has a disability is impermissible.
  13. In a footnote, the court noted that it was clear from the legislative history that the intent of the 2000 and 2015 amendments was to align the limitations on peremptory challenges with California law prohibiting other forms of discrimination by the state, a state agency, or entities funded by the state.
  14. No dispute exists that the justification for excluding two of the jurors was their association with family members with disabilities. In fact, the attorney on remand focused specifically on the disability of the family members. The trial court in ruling on the motion likewise relied on the disability of the family members.





  1. While I received my J.D. degree from the University of San Diego (I also have an LL.M. in health law from Depaul), I never took the California bar. So, I am not licensed in California. Much of this decision turns on California law. When it comes to the rights of people with disabilities in California, it is important to get a California licensed attorney involved, particularly with California’s Unruh Act often being in play.
  2. As the court points out in a footnote, the United States Supreme Court and federal courts have yet to expand Batson/Wheeler to peremptory challenges based on a prospective juror’s disability. In fact, the two cases cited in the footnote by the court are cases that I have mentioned in blog entries previously here and here. The court also notes that the California Supreme Court has not addressed the application of Batson/Wheeler to jurors based upon their disability or the disability of a family member.
  3. The Second Court of Appeals talks about sole cause and it also talks about permissible reasons motivating a strike. The use of both terms in its opinion raises the question of whether Batson/Wheeler challenges in California turn on sole cause or motivating factor (I am not a licensed attorney in California). At the federal level, it would seem after Bostock v. Clayton County, Georgia, that sole cause would not be the standard.
  4. While the United States Supreme Court has not specifically weighed in on whether Batson and its civil progeny, Edmondson, applies to persons with disabilities, a plain reading of Tennessee v. Lane, which we have discussed many times, such as here, would suggest that the only logical conclusion is that Batson does apply.
  5. A plain reading of Bostock v. Clayton County, Georgia, which we discussed here, also suggests that Batson challenges would be in play for the LGBTQ community as well.
  6. The case serves as an important reminder that state laws can go further than federal laws.
  7. The disadvantage of Batson is that it relies on attorneys to make the challenge. The prospective juror has no ability to do it themselves.


Is military disability pay a marital asset?

If you are a military veteran who has a service-connected disability, then you may be able to receive disability payments from the Department of Veterans Affairs. How VA disability can impact a divorce case in Texas is what we are going to be discussing in today’s blog post from the Law Office of Bryan Fagan. Subjects as diverse as child support calculations, spousal maintenance, and community property division may be impacted by your eligibility for VA disability payments. Understanding the relationship between these areas of your divorce is important considering that there is a small margin for error in any divorce case.

If you have a service-connected VA disability rating of at least 10% then you are entitled to VA disability payments. Your military retirement will be reduced on a dollar-by-dollar basis if your disability rating is under 50%. So, why would you want to waive VA retirement benefits to receive VA disability benefits? The two primary reasons why disability benefits may be preferable to retirement benefits are due to disability benefits not being subject to division in a divorce and disability benefits are not taxable.

How can you apply for VA disability benefits?

Just because you have a service-connected disability through the military does not mean that you will automatically receive VA disability payments. Rather, you need to follow the process that the military has laid out for veterans and active-duty service members to apply for and receive VA disability benefits. While some people in your position will apply for and receive disability benefits at the same, they that they separate from the military, there is no deadline to apply for disability. It could be years later that you first apply for disability benefits and receive them.

What this means for your divorce is that you should not assume that just because your spouse is not receiving benefits at this moment, he or she will not begin to receive them in the future. The VA will pay on any person’s claim who can prove that he or she has a service-connected disability rating of between 10 and 100%. Depending on whether you have a spouse and children you can receive a monthly disability payment from the VA of over $3,500 per month.

Backdoor division of VA disability benefits

As we have already discussed, VA disability benefits are not divisible in a divorce as community property. Once the funds are deposited into a jointly held bank account then disability payments may potentially be divided in a divorce. What we are describing here is something called “commingling” where separate property and community property are placed together. Rather, it would be wise for you to segregate your separate prop (like VA disability) into a bank account that will never have community property funds within it. This way you can be sure that the bank account in question will never have an issue with commingled funds.

How can VA disability impact decisions on child support and spousal maintenance?

The questions about child support and spousal maintenance revolve around income. VA disability benefits do count as income when it comes to calculating child support or spousal maintenance. As opposed to the community estate, disability benefits from the VA can be a part of a veteran’s income for purposes of setting child support.

For alimony or spousal maintenance purposes, Texas is an outlier among the rest of the 49 states in our union. Texas family courts will typically not consider VA disability payments as income for calculating spousal maintenance.

Can VA disability payments be garnished for child support and alimony?

Wage garnishment in Texas typically takes place via a wage withholding order. A wage withholding order is usually submitted to an obligor spouse or parent’s employer after a child custody or divorce case. In that way, the employer will know how much money to withhold to pay child support each month.

Military disability benefits cannot be treated as community property in a Texas divorce. Let’s look at a case where a husband filed an appeal from his divorce arguing that the court incorrectly divided up his military disability benefits.

In that case, the wife had filed for divorce. In her Original Petition for Divorce, this woman argued that she should receive a disproportionate share of the community estate for a variety of reasons. Her income was much less than her husband’s, she had no advanced education and she had no separate property from before the marriage. Ultimately, the divorce court awarded her more than half of her husband’s military retirement benefits. Her husband immediately appealed the decision.

The husband’s main argument was that in awarding his wife 55% of her military retirement pay, the court had included disability benefits in that equation. The wife argued that this was not the case and that the final decree of divorce awarded him his military disability and Social Security disability benefits as a part of his separate estate.

What did the final decree of divorce say, exactly?

The language as contained in their final decree of divorce stated that the wife was to be awarded fifty-five percent of the husband’s disposable military retired pay including any accrued unpaid bonuses, disability plan, or benefits. Under awards to the husband, the same language was used. A domestic relations order was drafted to divide up the military benefits and included stated that only disposable retired pay could be considered community property. Military disability pay would not count as military benefits for division in the divorce.

What did the appellate court say?

When the husband appealed the trial court orders it went to an appellate court here in Texas. The final decree of divorce contained an award for the husband of his military disability and Social Security disability benefits as separate property. The appellate court found the definition of disposable retired pay did exclude military disability pay. As a result, the appellate court found that the trial court did not make a mistake and award any of the husband’s disability benefits.

Dividing up marital property in a Texas divorce is not easy

The subject of community property division in a Texas divorce arises with a great deal of regularity. It is also complicated- more complicated than many guides on the internet will lead you to believe. One of the most difficult aspects of community property division to figure out for many couples has to do with how government benefits are divided up. It could be a teacher’s retirement or military retirement, there are methods of calculating what percentage of these benefits can be divided in the divorce that relate to your length of service as well as how many years of marriage coincided with that length of service.

Veterans’ benefits, including military benefits, are no different. Special rules apply that will determine how your military benefits will be divided in the divorce and whether they are even subject to division. We have already seen how military disability benefits are not divisible by a Texas family court. Additionally, because of the example that we shared in the earlier section of today’s blog post hopefully, you can understand just how critical it is to make sure that your final decree of divorce is worded clearly and unambiguously. The result, if you don’t, is to prolong the case and put you in a position where you spend money that otherwise would not have to.

Military benefits are done through federal law and Texas law determines how property is divided in a divorce. Your attorney will need to be able to divide up those benefits correctly and understand how state and federal law treat these subjects. It is a bad situation to find yourself in when your final decree of divorce is not correct. This will cost you time, money, and stress that otherwise would not need to be spent. Hiring an experienced family law attorney with the Law Office of Bryan Fagan is a great way to help ensure that you do not find yourself in this position moving forward.

Our attorneys and staff have been fortunate enough to be able to represent members of our military and veterans alike in their divorce cases since our office was first opened. In addition, military spouses are among the most frequently seen clients of our office. Texas is home to many military members and veterans, and we are honored whenever we have the opportunity to work with military families to help you all accomplish your goals during a difficult time. Contact us today for a free-of-charge consultation with one of the experienced family law attorneys with the Law Office of Bryan Fagan.

Military retirement benefits

Military pensions can be subject to division in your divorce. If the pension was contributed to during your marriage, then those portions of the military benefits will be divisible in the divorce. Any portion that was contributed before the marriage will count as separate property and will not be divisible. The tricky part for you and your spouse will be to determine how much of the military retirement benefits are community property and then how to divide up that community property portion of your benefits.

At the time of your divorce, the military pension becomes frozen. Once you or your spouse file for divorce the pension’s value will be what it was on the date of filing. The reason why this law is in place is that it would be possible for a military spouse to take advantage of their spouse being promoted during the divorce and then be eligible to receive more money as a result of that promotion. Cost-of-living adjustments are typically allowed during a divorce, but the pension amount stays steady where it was at the beginning of the case.

The bottom line is while a military divorce will follow the same procedures and processes as a civilian divorce, there are specific areas where a military divorce can differ from a civilian divorce, as well. The length of your marriage, while you were serving in the military, will also make a difference when calculating benefits.

If you are married to a military member, then the length of your marriage will have a tremendous impact on your ability to receive benefits. Simply put, if you and your spouse have been married for less than 10 years then you should not expect to receive much of anything in the divorce as far as military benefits. As you are probably aware, Texas is a community property state which means that debts and property accumulated during the marriage will be subject to division in the divorce.

You and your spouse need to have been married for at least 10 years to become eligible for military retirement pay. In addition, the ten years of your marriage must have overlapped with 10 years of military service to qualify. This is different from a civilian divorce where a spouse would be eligible to receive a portion of their spouse’s retirement benefits upon divorce no matter the length of the marriage.

As soon as you and your spouse have been married for ten years you would become eligible to receive a portion of your spouse’s retirement pay. Here are a few benchmarks to keep in mind as far as retirement pay is concerned. At 15 years, you would be eligible to receive half of the retirement pay and one year of health insurance after the divorce comes to an end. Once you have been married for twenty years or longer you would be eligible for half of the retirement pay, health insurance, and other benefits available through the military. The health insurance would go away once you remarried, however.

The importance of hiring an experienced family law attorney in a military divorce

You need to include the specific language that the military requires to receive the correct amount of retirement benefits. Your final decree of divorce should include whatever language the military mandates be included in these orders. Failing to include this language in the order can ruin your chances of receiving the property that you worked so hard to obtain in your divorce. You should be accurate when listing how long you or your spouse served in the military and how long your marriage was.

The government will send the orders back to you if not completed correctly. Keep in mind that this will cost you time in that the attorney will have to go back and correct their work. On top of that, the extra time and effort that it takes to correct these mistakes will cost you time and money. This is adding insult to injury and makes it very difficult to be able to budget for a divorce or plan for your life after the divorce has come to an end. Able to say accurately this is when the divorce ended and here the financial consequences of the divorce are an important part of the case for peace of mind’s sake.

No matter how long you and your spouse were married, if he or she won’t be retiring for another twenty years then you will have to wait a while to get the money promised to you in the divorce. Your spouse may become the person who must pay you the retirement pay when it does come time for those payments to be made. This sounds ok at the time of your divorce but can become cumbersome ultimately for a person in your shoes given that you have no idea what will become of your spouse after the divorce.

If your ex-spouse does not pay you the correct amount of money at retirement you will need to keep tabs on him or her and then file an enforcement lawsuit against him or her. Time is a factor that stands to harm almost every divorce at this stage. Instead of dividing up military retirement pay, why not divide up other property instead? This method can help you to get a case immediately rather than having to wait decades.

You can ask for more equity in the home, a greater amount of child support or spousal maintenance, or anything in between. There are many ways to prepare for a divorce when it comes to community property division. You should begin by going through all of your assets and debts and develop a plan on how to divide them in your divorce. You are only limited by your circumstances and creativity in this regard. Otherwise, having an experienced family law attorney can help you to problem solve and think outside the box when it comes to the division of marital property.

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about your family’s circumstances that may be impacted by the filing of a divorce or child custody case.


Major Life Activities as Essential Functions and What That Means for Test Takers Trying to get into Those Jobs

Today’s blog entry deals with two decisions from the U.S. Court of Appeals for the Second Circuit dealing with essentially the same fact pattern. One decision, Williams v. MTA Bus Company, here, is a published decision decided August 12, 2022, while the other decision, Frilando v. New York City Transit Authority is a summary order decided on August 19, 2022, here. Both decisions have the potential to set back the ability of Deaf, deaf, and HOH individuals to be employed. I don’t see why the decision don’t have the ability to set back people with other kinds of disabilities from being employed as well. The facts are substantially similar. Both cases involve culturally deaf individuals seeking employment. Both cases involve exams needing to be taken in order to see if they were qualified for that job. Both cases involve a refusal to have an interpreter to interpret the examination and its instructions. The panel for Williams was Cabranes, Raggi, and Carney. The panel for Frilando was Cabranes, Lynch, and Chin. As usual the blog entry is divided into categories and they are: court’s reasoning in Williams; court’s reasoning in Frilando; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.



Court’s Reasoning in Williams


  1. Only qualified individuals can establish a disability discrimination claim.
  2. The term “qualified individual,” appears in the statutory section, 42 U.S.C. §12112(a), talking about how a person cannot be discriminated against on the basis of disability with respect to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. Through the use of the term “qualified individual,” means that a person has to be able to perform the essential functions of the employment position.
  3. 42 U.S.C. §12112(b) references 42 U.S.C. §12112(a). Therefore, the term “qualified,” is equally applicable in that section as well.
  4. Doesn’t make sense that Congress would intend to permit individuals who are not qualified for their desired employment positions to maintain action for some types of employment related discrimination but not for others. Therefore, Congress intended the “qualified individual,” requirement to apply to all forms of employment discrimination under 42 U.S.C. §12112.
  5. Reading 42 U.S.C. §12112 to maintain the “qualified individual,” requirement is consistent with both the ADA and the Rehabilitation Act taken as a whole.
  6. 42 U.S.C. §§12111, 12112 work together. So, considering the interactive relationship between those two provisions, it would be nonsensical to disregard the term “qualified individual,” when reading 42 U.S.C. §12112(b)’s subparts rather than reading it all together so that only “qualified individuals,” may bring claims based upon discriminatory acts enumerated in 42 U.S.C. §12112.
  7. 504 of the Rehabilitation Act, 29 U.S.C. §794, echoes that only an “otherwise qualified individual,” can sustain a discrimination claim under that section.
  8. Since the statutory sections are clear, the EEOC guidance does not come into play. However, even if it were to come into play you still get to the same endpoint. The EEOC guidance said that an employer must provide a reasonable accommodation to a qualified applicant with a disability that will enable the individual to have an equal opportunity to participate in the application process and to be considered for the job. Accordingly, it is fair to read the guidance to say that before an employee can prevail on its failure to provide accommodations during the application process, the plaintiff must show that he was qualified for the employment position at issue.
  9. The portion of the EEOC guidance does not address the employer’s obligation regarding an applicant who cannot perform the essential functions of the position regardless of any on-the-job accommodations, and therefore is another reason why the EEOC guidance is of little assistance.
  10. Taking a test to see if they are qualified for certain jobs is not an employment position and therefore the test-taker is not entitled to accommodations in the test taking process if they are not qualified for the employment position they are seeking.
  11. An employer is perfectly within its rights to mandate that the applicant evaluate his qualifications for the job before seeking accommodation for exams. An employer does not have to allow a person to take exams for job that they are not qualified for. In other words, an applicant cannot sue successfully a potential employer under 42 U.S.C. §12112 when the individual is facially not qualified for the position sought at the time of the preemployment test.
  12. Williams simply did not have the education or experience requirements necessary for the jobs that he wanted to take the exams for.
  13. In the Second Circuit, an employer’s failure to comply with the interactive process requirement is not an independent cause of action under the ADA.




Court’s Reasoning in Frilando


  1. Plaintiff applied for the jobs of train operator, track worker and bus operator.
  2. Defendants offered to provide ASL interpretation for the exam instructions but refused to provide interpretation for the exam questions and answers.
  3. The term “qualified,” applies not just to current employees but to job applicants as well.
  4. When assessing whether a person is otherwise qualified for a job, a court must give considerable deference to an employer’s judgment regarding what functions are essential for a particular position.
  5. In a four day bench trial, the District Court found that the ability to communicate in English and the ability to hear sounds were essential functions of all three positions. Plaintiff was not qualified for any of the positions because he could not be understood in spoken English and also did not understand spoken English. He also did not have the minimum hearing standard for any position.
  6. Test taking is not an employment position. Therefore, plaintiff is out of luck for a failure to accommodate claim with respect to taking the test necessary to qualify for the various jobs.





  1. I often say in my trainings that an employer makes a big mistake by focusing on major life activities as an essential function of the job. These two cases say that the employer may get away with taking that considerable risk if it chooses to use a major life activity as an essential function of the job. That said, taking this approach is lousy preventive law. An employer will go much further in preventing litigation and successfully defending lawsuits when there is litigation, if the essential functions of the job do not include a major life activity.
  2. On the plaintiff side, the argument to make is that hearing is not the essential function of the job but being able to communicate is. That is an argument the plaintiff successfully made in the case we discussed in the blog entry involving Johns Hopkins, here. The Johns Hopkins case is also a cautionary tale for an employer insisting on a major life activity being an essential function of the job.
  3. Neither of the decisions are published (one is not published and the other is a summary order).
  4. In footnote 16 of the Williams decision, the court says that the employer by not evaluating the plaintiff’s qualifications before refusing to provide him with an ASL interpreter for the exam, ran the risk of denying a reasonable accommodation to a qualified individual that would have rendered the company liable for disability discrimination. Also, courts should not bless off blanket denials of accommodation by accepting specious explanations why applicants with disabilities may ultimately not be qualified for a position.
  5. Both of these cases give employers a tool now to prevent Deaf individuals in particular from even getting considered for a particular job because accommodations do not have to be offered for any testing for those jobs unless they can do the essential functions of the job first.
  6. The Second Circuit decisions play down considerably the obligation of the employer to provide reasonable accommodations. Remember, reasonable accommodations can either be in the title I context a logistical or financial undue hardship. Per 42 U.S.C. §12111(10)(B), financial undue hardship looks to the entire operations of the entity, while logistical undue hardship looks to whether essentially the nature of the business is fundamentally altered.
  7. A sign language interpreter does not do the job for a Deaf individual, rather they are just enabling communication. That said, I could see logistical undue hardship questions and possibly financial undue hardship questions as well arising depending upon the situation.
  8. Before employers just start adopting including major life activities as essential functions, mandatory reading is this blog entry. Plaintiff lawyers need to make that blog entry mandatory reading as well after these two cases.
  9. Deaf individuals frequently do not read above a fourth grade reading level because ASL is a completely different kind of language than English. It is of course a visual language and its structure is entirely different, based on French. Therefore, a Deaf person is equally unlikely to understand the exam questions as they are the instructions themselves. As such, granting ASL for instructions but not for exam questions means it is still the disability being evaluated rather than the person’s abilities.
  10. A qualified interpreter for the Deaf is strictly a communication vehicle and is not offering their own view on anything.
  11. Remember whether a person is qualified for a particular position depends upon whether they can do the essential functions of the job WITH or without reasonable accommodations.
  12. Undue hardship is an affirmative defense, though the burden of proof can get complicated with respect to whether a person is qualified or not per the ADA.
  13. Depending upon the circuit, failure to engage in the interactive process may or may not be a separate cause of action. That said, the trend is certainly in favor of a failure to accommodate being a separate cause of action.
  14. I don’t see why these decisions necessarily get limited to hearing. Why not walking or seeing, smelling, etc.?
  15. It will be interesting to see both how other circuits deal with this issue as well as how the EEOC reacts to these decisions going forward.


Interactive Process Obligation Continues Through Litigation

Today’s blog entry deals with the question of whether the interactive process continues through any litigation and whether evidence of that interactive process taking place or not taking place when the case is being litigated can be brought into evidence. The case is Kovachich v. Department of Mental Health and Addiction Services, here, decided by the Supreme Court of Connecticut on September 27, 2022. As usual, the blog entry is divided into categories and they are: facts; majority reasoning that exhibits were properly admitted; Chief Justice Robinson’s dissenting opinion; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.





The facts can be distilled quite a bit. What you have here is a plaintiff requesting from her employer a scent free work environment. While the employer granted accommodations, some employees failed to comply with the scent free working environment designation. As a result, plaintiff was exposed to scents at the jobsite that exacerbated her rhinitis and asthma and on multiple occasions triggered the need for emergency medical treatment. She then sought out legal counsel to ensure that she was protected in the workplace. The plaintiff, her counsel, and the human resources director did meet with the result being a notice was placed on the overtime sign-up sheet informing employees that the Brief Care Unit was scent free. However, with limited exceptions, no additional measures were taken to educate the workforce or to enforce the scent free designation by means of workforce discipline. This led to a filing with the Connecticut version of the equal employment opportunity commission.


At trial, plaintiff’s counsel sought to introduce into evidence an April 29, 2013, email from plaintiff’s counsel to a Connecticut Assistant Attorney General with a subject line, “request for demand.” the content of that email asked for a discussion to find a solution to ensure that plaintiff could be given a scent free environment. No such meeting took place in response to the email. Plaintiff’s counsel also offered into evidence in the email of May 30, 2013, stating that one of the plaintiff’s coworkers was also affected by scents in mandatory training situations and suggesting that online training as a possible accommodation. It also said her employer’s approach was the wrong one and that plaintiff intended to move forward with her case. It specifically inquired about what solutions the employer might propose. Plaintiff’s counsel also sought to introduce into evidence a July 22, 2013 letter containing a set of demands and ending with, “we would be happy to meet with representatives of the defendant who has authority to discuss and recommend these requests.” All of these exhibits were offered for purposes of illustrating plaintiff’s attempts at the interactive process. The trial court admitted the exhibits and wound up finding in favor of the plaintiff awarding $3800 of additional pension income. It also awarded the plaintiff $125,000 for the emotional distress caused by the actions of the employer and $415,389.50 in attorney fees.


The defendant appealed to the appellate court and the appellate court wound up agreeing with the defendant on that the various exhibits should not have been admitted and for other reasons as well. Plaintiff appealed to the Connecticut Supreme Court.



Court’s Reasoning That the Exhibits Were Properly Admitted


  1. It is true that the Connecticut Code of Evidence provides that evidence of an offer to compromise or settle a disputed claim is inadmissible on the issue of liability and the amount of the claim. Good policy reasons exist for that rule.
  2. It is also true that the Connecticut Code of Evidence allows an offer to compromise or settle a disputed claim into evidence if it is offered for another purpose. The list of purposes that appear in that statute are illustrated rather than exhaustive.
  3. Whether the exhibits should have been admitted is an evidentiary area issue reviewed for an abuse of discretion.
  4. The Connecticut Fair Employment Practices Act borrows from the ADA and requires an interactive process to figure out what accommodation can be put in place in order to overcome a person with a disability’s limitations.
  5. The need for the interactive process arises because both parties hold information that the other does not have or cannot easily obtain.
  6. The employee has the burden of initiating the interactive process must come forward with some suggestion of accommodation, and the employer then must make a good-faith effort to participate in that discussion.
  7. A plaintiff who fails to initiate or participate in the interactive process in good faith loses.
  8. An employer’s refusal to give an employee his or her specific requested accommodation does not necessarily amount to bad faith, so long at the employer makes an earnest attempt to discuss other potential reasonable accommodations.
  9. An employer’s failure to participate in the interactive process in good faith does not give rise to per se liability. However, it may be sufficient grounds for denying a defendant’s motion for summary judgment because it is at least some evidence of discrimination. In other words, in Connecticut a failure to engage in a good faith interactive process, is not a separate cause of action but can be introduced as evidence tending to show disability discrimination.
  10. The interactive process required by law is ongoing and is not exhausted by one effort. The ongoing interactive process continues during the course of plaintiff’s employment even after the plaintiff has filed a complaint alleging disability discrimination.
  11. The Connecticut Supreme Court found persuasive the reasoning of numerous federal courts that have been admitted evidence of compromise offers and negotiations for purposes of showing that the parties engaged in the interactive process.
  12. Nothing in the record establishes that the communications contained in the exhibits occurred within the context of the commission’s mandatory mediation program. In fact, plaintiff’s complaint had been pending with the commission for approximately one year and had been referred to in commission investigator at the time the document was generated, which means that the mandatory mediation had at least concluded.
  13. Although the communication contained in the exhibits occurred while the plaintiff’s complaint was pending before the commission, no evidence exists to indicate that the exhibits were part of the commission’s conciliation efforts, as opposed to their investigative efforts, or independent of the commission’s efforts altogether.
  14. The purpose of the evidentiary admissions was not to show liability but to show that a party was engaging in the interactive process.
  15. The trial court did not rely on the exhibits to find that the defendant engaged in discrimination. Instead, the trial court found that the defendant had failed to effectuate the plaintiff’s accommodations by an abject failure to make any reasonable effort to educate the staff about what a scent free environment meant and a supervisor’s refusal to do anything whatsoever about the scent free workplace environment provided by the ADA committee.
  16. While the trial court did rely on the defendant’s failure to respond to one of the exhibits to find that the good faith interactive process had broken down, that finding was based on defendant’s failure to present any evidence that it responded to the plaintiff’s communication, rather than the content of the communication itself.
  17. There was no error in the trial court’s determination that the exhibits were highly relevant to the defendant’s ability to react intelligently and legally to the plaintiff’s request for accommodations.
  18. The content of the communications demonstrate that the plaintiff wanted to continue with the interactive process but was getting nowhere.



Chief Justice Robinson Dissenting Opinion


  1. Failure to engage in interactive process is not entirely distinct from the liability inquiry as a matter of law.
  2. Most circuits find a failure to engage in the interactive process results in liability when a reasonable accommodation would otherwise have been possible.
  3. Connecticut Code of Evidence prohibits admissibility of a variety of things when it goes to liability in general.
  4. Majority view is too narrow as to what is part of the mediation process.





  1. My thanks to Daniel Schwartz, who has a blog called the Connecticut Employer Law Blog (the link will take you to his discussion of the case), for first bringing my attention to this case.
  2. Six justices were in the majority with the Chief Justice being the lone dissenter.
  3. The interactive process is a continuing duty that continues through any litigation.
  4. I am not a Connecticut licensed attorney. Mileage may also vary depending upon jurisdiction.
  5. Federal case law exists holding that request to engage in the interactive process made during ongoing litigation can be admitted for the purpose of demonstrating the continuing obligation of engaging in the interactive process.
  6. As a preventive law matter, an employer would do well to respond to any accommodation offers while litigation is ongoing. Of course, as we have discussed numerous times in our blog, such as here, once an employer is put on notice that a need for accommodation exists (magic words are not required), the employer should engage in the interactive process.
  7. In most circuits, failure to engage in the interactive process is a separate cause of action. In those circuits, the dissenting opinion here may hold quite a bit of sway because of the failure to engage in interactive process being a liability issue.


Privacy in the Work Place

In Wilhite v. HE Butt Co., 812 S.W.2d 1 (Tex.App. Corpus Christi 1991), the employee was accused of sexual harassment. His employment was terminated after many years at HEB. Mr. Wilhite sued for defamation and invasion or privacy. The district court granted summary judgment regarding the invasion of privacy.

On appeal, the Corpus Christi Court of Appeals found that summary judgment to be error, sort of. Texas, said the court, recognizes a tort known as intrusion upon a person’s seclusion or solitude, or into his private affairs. Physical acts such as eavesdropping on a conversation or physical invasion of a person’s property are associated with this sort of invasion of privacy. The court found that the plaintiff did not allege this sort of privacy invasion. Instead, Mr. Wilhite described his employer not allowing him to confront his accusers and by invading his private life by trying to control what he could do or not do. There was no physical invasion of the plaintiff’s privacy by his employer.

The Court noted that the plaintiff’s description sounded more like the torts of 1) disclosure of embarrassing facts or 2) publicity which places the person in a false light. But, said the court, the HEB officials did not make public any private acts or accusations. So, summary judgment was appropriate. So, the court of appeals affirmed the summary judgment. See the Wilhite decision here.

The decision then recognizes that invasion of privacy at work can occur if the employer eavesdrop on conversations or invades an employee’s seclusion or solitude. The question then becomes at work, what are those areas of seclusion?

One case that answers the question is K-Mart Corp. Store No. 7441 v. Trotti, 677 S.W.2d 632 (Tex.App. Hou. 1984). That decision found that a worker did have an expectation of privacy in his locker, which the employer provided. The locker was used to store personal effects. The lockers were sometimes locked, sometimes not. In this instance, the employee did lock her locker, with her purse inside. Later, she found the locker open and her purse had been ransacked. The manager had opened all the lockers, because he believed some unknown employee had stolen a watch.

This invasion of privacy amounted to an intrusion of the plaintiff’s seclusion, said the court. In providing her own lock with the employer’s consent, the employee showed a legitimate expectation of privacy to the locker and the contents of the locker. See the decision in the Trotti case here.


Fifth Circuit seeks comments on proposed rule changes

The U.S. Court of Appeals for the 5th Circuit is accepting comments about proposed amendments to 5th Circuit Rule 47.5.4.

Read the full notice, which includes the proposed redline changes, on the court’s website.

The court is accepting written comments through October 21 by email at or by mail at:

Clerk of Court
U.S. Court of Appeals for the 5th Circuit
ATTN: Rule Changes
600 S. Maestri Place
New Orleans, LA 70130