Taylor Christian Profita v. The Regents of the University of Colorado, et al.

Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132, as amplified by the Title III provision in 42 U.S.C. § 12182(b)(2)(A)(ii), prohibits discrimination by a public entity for refusal to make a reasonable accommodation for an otherwise qualified individual with a disability, unless it would fundamentally alter services. An “individualized” inquiry into reasonableness is required, PGA Tour, Inc. v. Martin, 532 U.S. 661, 690 (2001), and “ ‘reasonable’ means no more than ‘effective’ . . . [to] ‘enable’ a person with a disability to perform the essential functions of a task . . . [,] the statutory provision’s basic objective.” U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401 (2002). A “second chance” doctrine has developed in Title I, II, and III accommodation caselaw where the request for accommodation comes after an issue with performance. The Tenth Circuit in this case denies an afterthe-fact “reasonableness inquiry” and accommodation to perform. Other jurisdictions require evaluation as to efficacy and reasonableness, allowing for “second chance” accommodation. There is a substantial split of authorities as to correct application of the doctrine, with irregular results unfairly impacting protection of disabled persons in a wide range of human activities including education, employment and public housing. Questions presented are: 1. Whether the “second chance” doctrine forecloses the “reasonableness inquiry,” as a matter of law, based solely upon timing of an