Two notable cases emerged during Judge Gorsuch's tenure on the Tenth Circuit Court of Appeals, both involving disability rights.

The first case involved Assistant Professor Grace Hwang, who had a successful 15-year career at Kansas State University. After being diagnosed with cancer, she took a six-month leave of absence for recovery from a bone marrow transplant. As she prepared to return in January, a flu epidemic swept the campus. Given her compromised immune system, Professor Hwang requested a short extension of her leave, during which she could work from home. However, the university denied her request, prompting Hwang to sue.

Under established disability rights laws, requests for leave due to disability must be assessed on a case-by-case basis to determine if fulfilling the request would impose an undue hardship on the employer. This is fundamentally a factual determination. Yet, before any evidence could be presented regarding potential accommodations for KSU—a federally funded institution—Judge Gorsuch ruled that Professor Hwang's request was unreasonable. He claimed that "showing up" was an essential job function and suggested that the Rehabilitation Act should not "turn employers into safety net providers for those who cannot work." This interpretation was both factually and legally flawed. Hwang had consistently demonstrated her ability to "show up" for 15 years and could have telecommuted during the flu outbreak. The real issue was whether the university should grant her a brief additional leave as a reasonable accommodation to facilitate her full return to work.

Gorsuch's ruling contradicted guidance from the Equal Employment Opportunity Commission, decisions from other circuits, and reasoning from the Supreme Court in *U.S. Airways, Inc. v. Barnett*. In *Barnett*, the Supreme Court established that a reasonable accommodation might require modifying a neutral employer rule, even if it resulted in a “preference” for the disabled employee. Had Gorsuch applied this reasoning in Hwang's case, the university would only have needed to allow her to work from home for a limited time.

In a second disability rights case, an administrative law judge and a federal district court judge agreed that a young autistic boy named Luke needed placement in a residential school program due to his lack of progress in applying skills learned at school to other environments. However, Judge Gorsuch reversed this decision, arguing that since Luke was making "some progress" in public school—despite showing no progress outside of it—the school district had met its obligations under the Individuals with Disabilities Education Act (IDEA). Yet, Congress intended for the IDEA to support students in making progress toward independent living, not just within the school environment. The narrow standard applied by Gorsuch is currently under review by the U.S. Supreme Court.

One of the core principles of disability rights laws is leveling the playing field to provide equal opportunities for individuals with disabilities—whether in education, employment, or community participation. The Americans with Disabilities Act and other related laws acknowledge financial, practical, and administrative burdens while emphasizing the need for individualized assessments. Accommodations that suit one person may not work for another, and what is feasible for one employer may pose challenges for another. Courts should focus on the facts rather than impose arbitrary, rigid rules.

Judge Gorsuch's rulings in these disability cases raise significant concerns about his commitment to recognizing the rights of individuals with disabilities and his willingness to ensure that justice is individualized and equitable.