Labor & Employment Law Daily Wrap Up, RETALIATION—6th Cir.: Rehab Act Sec. 504 does not provide private right of action for retaliation, (Dec 1, 2025)

By Kathleen Kapusta, J.D.

“In no case until now has the Sixth Circuit squarely addressed the question whether § 504 of the Rehabilitation Act provides a cause of action for retaliation.”

After assuming for more than 25 years that the Rehab Act provides a private cause of action for retaliation, a divided Sixth Circuit, breaking with its sister circuits, held that Section 504(d) of the Act incorporates from the ADA only adjudicatory standards and does not create new causes of action. “Subsection (d),” the court explained “functions as a technical cross-reference provision; it is structurally and linguistically ill-suited to serve as the source of an implied right to sue.” The court also affirmed summary judgment against the failure-to-accommodate claim of a state corrections officer who, after an extensive leave following an on-the-job injury, was denied his request to return to work. In a partial dissent, Judge Bloomekatz would have held that Section 504, by directly cross-referencing the ADA’s retaliation provision, provided a cause of action for the correction officer’s retaliation claim (Smith v. Michigan Department of Corrections, No. 24-1439 (6th Cir. Nov. 21, 2025)).

During an altercation with an inmate, the long-tenured Michigan Department of Corrections (MDOC) employee suffered a hip injury that required a lengthy medical leave. He returned to work with numerous restrictions and was assigned to a transitional employment (TE) role in the training department. He remained, however, formally classified as a corrections officer with associated pay and benefits.

Accommodation request. He ultimately requested as an accommodation assignment to a light-duty post. Due in part to a lack of vacancies that met his qualifications, his request was denied. He subsequently elected a waived rights leave of absence that ended his employment but preserved his “continuous service, seniority, and benefits connected with length of service” for up to one year.

After successful hip surgery and additional rehabilitation, the employee formally requested reinstatement. Based on a pending disciplinary action against him for purportedly not returning a form, his request was denied. When MDOC learned that he had apparently returned the form, it extended two unconditional offers of reinstatement, which the employee declined.

Lower court proceedings. He then sued, alleging claims of discrimination and retaliation under Section 504 of the Rehab Act. The district court granted summary judgment against his failure-to-accommodation claim but allowed his retaliation claim to proceed to trial and the jury found in favor of MDOC.

Private cause of action. On appeal, the Sixth Circuit observed that to resolve the question of the proper elements of a retaliation claim, including its potential causation element—which the employee had challenged—it had to first determine where the cause of action comes from. Though the parties did not argue whether Section 504 provides a private right of action before the district court or in their initial briefing, the appeals court requested supplemental briefing on the issue. “The fact that both [the employee] and MDOC initially accepted that § 504 provides a private cause of action is not dispositive, said the court, which also declined to “defer to the district court’s assumption as to the existence of a private cause of action for retaliation under § 504.”

Section 504(d). The employee argued that the cause of action for retaliation arises from Section 504(d), which provides that “The standards used to determine whether this section has been violated in a complaint alleging employment discrimination under this section shall be the standards applied under Title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.) and the provisions of sections 501 through 504, and 510, of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201 to 12204 and 12210), as such sections relate to employment.” Section 504(d)’s cross-reference to the ADA, he argued, not only imports the standards for evaluating claims but also creates a substantive cause of action for retaliation.

Longstanding practice. After noting that the Supreme Court “has never held that any provision of the Rehabilitation Act creates a private right of action for retaliation,” the appeals court found no binding precedent from the Sixth Circuit. Though the employee pointed to decades of circuit precedent that assumed a retaliation claim could be brought under Section 504, the court explained that its longstanding practice has been to proceed under the assumption that a cause of action for retaliation exists under Section 504. Indeed, it observed, while it stated in its 1999 Hiler v. Brown decision that the Rehab Act prohibits both discrimination and retaliation against disabled federal employees, the reasoning was “rather unclear” and later Sixth Circuit cases followed similar patterns.

Further, the court observed, its sister circuits routinely accept retaliation claims under the Rehab Act without “challenging whether [one] exists.” And like the Sixth Circuit, “they have done so without rigorous statutory analysis or clear confrontation of the issue.” Finding these cases to be of limited persuasive value, the court found that the “time has come for us to address this long accepted, but never actually proven, assumption.”

Other federal statutes. Turning to whether Congress intended to authorize a private cause of action for retaliation, the court pointed out that in the context of federal spending legislation like the Rehab Act, a state’s consent to private enforcement suits “cannot be fairly inferred” unless Congress provides “clear and unambiguous notice that [the federal spending-power statute] creates a personally enforceable right.” Noting further that retaliation claims are a common feature in federal anti-discrimination statutes such as Title VII, the ADA, the ADEA, and the FLSA, which all have separate retaliation provisions, the court explained that “when Congress intends to authorize a retaliation cause of action, it does so in a straightforward fashion.”

“Congress’s decision to omit a retaliation provision from the Rehabilitation Act—after it included such a provision in statutes such as the ADA, Title VII, and the ADEA—is strong evidence that it did not intend to authorize private retaliation claims under the Act,” the court reasoned, and because “the Rehabilitation Act functions to impose conditions on the receipt of federal funds, what might suffice in non-Spending Clause contexts falls short here: state recipients must have unmistakable notice of the terms they are agreeing to.”

Standards. As to the use of the term “standards” in Section 504(d), the court explained that this word has been understood to refer to substantive rules or burdens rather than to a cause of action. “So, Congress’s explicit cross-reference to the same ADA term in the Rehabilitation Act, and its treatment of ‘standards’ in the ADA, provide compelling contextual evidence that §504(d)’s use of the same term was meant to inform how claims are assessed, not to authorize new categories of claims such as retaliation,” the court stated, emphasizing that “states receiving federal funds are on notice under the Rehabilitation Act that the ‘standards’ from the ADA will be pulled over, not that a retaliation cause of action exists under the Act.” Accordingly, the court found that Section 504 does not provide a private right of action for retaliation.

Failure-to-accommodate claim. Regarding the employee’s failure-to-accommodate claim, the parties disagreed as to whether he sufficiently established he was otherwise qualified for his position within the meaning of the Rehab Act. Rejecting his contention the appropriate reference point was the role he was actually performing at the time he requested the accommodation—his TE assignment in the training office—the court explained that because he remained classified and paid as a corrections officer throughout his transitional assignment, the correct reference point was his role as a corrections officer.

As to whether he could perform the essential functions of that role with a reasonable accommodation, the court found his proposed accommodation of continuing in his TE role was not reasonable. There was evidence that TE assignments are not permanent, budgeted positions eligible for reassignment but are rather a temporary set of tasks pulled from various roles and customized to an employee’s various restrictions. Though the employee argued that the facility had a need for employees working in light duty, a general need, said the court, “does not transform a temporary assignment into a vacant, budgeted position eligible for reassignment” and an employer is not “required to create a permanent position simply because an employee’s transitional role happened to meet a temporary operational need.” Thus, the court affirmed summary judgment against this claim.

Partial dissent. Dissenting from the court’s opinion on the employee’s retaliation claim, Judge Bloomekatz argued that the majority, based on supplemental briefing, “upends decades of established precedent in this court and our sister circuits that has recognized that individuals can sue under the Rehabilitation Act if an employer retaliates against them for asserting their rights under the statute. Judge Bloomekatz disagreed that this appeal presented that question for review but even if it did, she “would follow the statutory text and hold that § 504 of the Rehabilitation Act—by directly cross-referencing the Americans with Disabilities Act’s retaliation provision—provides a cause of action for [the employee’s] retaliation claim.”

“With that understanding,” she “would reach the question the parties asked us to decide: whether ‘but-for’ or ‘sole’ causation applies to that retaliation claim. Given the cross reference to the ADA,” she would have found that but-for causation applies and thus “would vacate the district court’s contrary judgment and remand the retaliation claim for further proceedings.”

The case is No. 24-1439.

Judge: Bush, J.

Attorneys: James B. Rasor (Rasor Law Firm) for Porter Smith. Kendell Asbenson, Office of the Attorney General, for Michigan Department of Corrections and State of Michigan.

MainStory: TopStory Retaliation DisabilityDiscrimination PublicEmployees Procedure KentuckyNews MichiganNews OhioNews TennesseeNews GCNNews