“Future–Risk” Is Not “Present Disability”:
Eleventh Circuit Clarifies the Limits of ADA “Regarded-As” Claims and Religious Discrimination Theories in Pajer v. Disney

1. Introduction

In Adam Pajer v. Disney Parks, Experiences and Products, Inc., consolidated with three companion appeals, the Eleventh Circuit confronted an increasingly common post-pandemic scenario: employees terminated for refusing to follow COVID-19 safety rules allege religious discrimination, disability discrimination, and retaliation. The plaintiffs—four Disney cast members—challenged Disney’s “Augmented Health & Safety Protocols,” which required masking, social distancing, and isolation for workers who either remained unvaccinated or refused to disclose their vaccination status. They also cited Florida’s 2021 statute banning private-sector vaccine mandates as evidence that Disney’s protocols were unlawful.

After the district court dismissed every count under Rule 12(b)(6) and denied leave to amend, the employees appealed. The Eleventh Circuit, applying de novo review, affirmed across the board, thereby sharpening the doctrinal lines that separate (i) religious accommodation claims from facially neutral safety rules, (ii) “regarded-as” disability allegations from mere fears of future illness, and (iii) protected opposition activity from unprotected disagreement with lawful protocols.

2. Summary of the Judgment

• Religious Discrimination (Title VII & FCRA): No plausible disparate-treatment or disparate-impact claim where (a) protocols applied equally to all undisclosed/unvaccinated employees and (b) plaintiffs never identified a religious conflict with those protocols or requested accommodation.
• Disability Discrimination (ADA): Being unvaccinated is not a disability, and employer concern about potential future disease does not trigger “regarded-as” coverage (reaffirming EEOC v. STME, LLC).
• Retaliation: Objections to neutral safety measures were not “statutorily protected expressions” because plaintiffs lacked a good-faith, objectively reasonable belief that Disney’s conduct was unlawful; ADA retaliation argument abandoned on appeal.
• Leave to Amend: District court properly denied leave because plaintiffs (i) never filed a motion before the scheduling deadline and (ii) did not show “good cause” under Rule 16(b).

Consequently, the Court of Appeals affirmed the dismissals in full.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

• EEOC v. STME, LLC, 938 F.3d 1305 (11th Cir. 2019) – The backbone of the ADA analysis; held that fear an employee might contract Ebola is not a disability. Pajer extends this holding to COVID-19 and vaccination refusal.
• Bailey v. Metro Ambulance, 992 F.3d 1265 (11th Cir. 2021) – Provides the two-track (traditional vs. accommodation) approach to religious disparate-treatment claims.
• EEOC v. Abercrombie & Fitch, 575 U.S. 786 (2015) – Cited for disparate-treatment framework but distinguished because plaintiffs never proved religion was a motivating factor.
• Bell Atlantic v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009) – Pleading-standard pillars used to underscore the paucity of factual allegations.
• EEOC v. Joe’s Stone Crab, 220 F.3d 1263 (11th Cir. 2000) – Supplies three-part test for disparate-impact, demanding concrete causal statistics missing here.
• Chabad Chayil, Inc. v. Miami-Dade Sch. Bd., 48 F.4th 1222 (11th Cir. 2022) – Reinforces that a request for leave to amend cannot be embedded in a response brief.
• Muldrow v. City of St. Louis, 601 U.S. 346 (2024) – Cited by appellants but deemed inapposite; Muldrow addressed discrimination, not retaliation.

3.2 Court’s Legal Reasoning

3.2.1 Religious Discrimination

The Court bifurcated the religious discrimination inquiry:

1. Traditional Disparate Treatment. Plaintiffs had to allege that similarly situated non-religious employees were treated better. Because all employees who withheld vaccination proof were subject to the same masking/distancing rules, no differential treatment existed.
2. Reasonable Accommodation. A valid claim demands a conflict between the employee’s belief and the challenged requirement—and a request for accommodation. Plaintiffs never asserted a religious conflict with masking or distancing, nor sought an exemption from those protocols. Therefore, the very first element failed.

3.2.2 Disparate Impact

Even if statistical detail can be postponed until discovery, plaintiffs must still allege facts indicating religious workers were disproportionately unvaccinated. Absent any such factual content, disparate-impact theory collapsed under Twombly/Iqbal.

3.2.3 ADA “Regarded-As” Disability

Key syllogism:

• ADA protects against discrimination because of a present, past, or erroneously perceived current impairment.
• Fear that someone may become ill is about the future, not the present.
• The unvaccinated status therefore signals only a risk of future COVID-19, not an existing impairment.

STME controls, and the Court is bound by it.

3.2.4 Retaliation

The threshold question—did plaintiffs engage in protected activity?—was answered “no.” Without a good-faith belief that the Augmented Protocols violated Title VII, the objections were merely workplace gripes. The ADA retaliation claim was deemed abandoned for inadequate briefing.

3.2.5 Denial of Leave to Amend

Rule 16(b) scheduling orders trump Rule 15(a)’s liberal amendment policy. Plaintiffs missed the amendment deadline and never proffered a proposed complaint or articulated good cause, tying the district court’s hands.

3.3 Potential Impact of the Decision

• Clarifies ADA Scope Post-COVID-19. Courts in the Eleventh Circuit will treat “unvaccinated” or “potentially contagious” status as not a disability, foreclosing similar “regarded-as” claims.
• Sets a High Bar for Religious Claims Against Safety Protocols. Employees must connect the protocol itself—not a defunct vaccine mandate—to a specific religious belief and must request an accommodation in real time.
• Emphasizes Pleading Specificity for Disparate Impact. Mere conjecture that “many Christians were affected” will not survive dismissal without at least rudimentary facts suggesting statistical disparity.
• Reinforces Rule 16(b) Discipline. Scheduling-order deadlines for amendment are enforceable; last-minute requests embedded in briefing are insufficient.
• Provides Employer Roadmap. Companies can impose neutral safety protocols—even differentiated by vaccination status—without automatically incurring Title VII or ADA liability, so long as they process bona fide accommodation requests.

4. Complex Concepts Simplified

• “Regarded-As” Disability: Protection applies only when the employer misclassifies an employee as presently having (or having had) a physical or mental impairment. A fear of what might happen later is outside the statute.
• Traditional vs. Accommodation Disparate Treatment: • Traditional asks, “Did the employer treat me worse because of my religion?” • Accommodation asks, “Did the employer refuse to adjust a rule that conflicts with my religion?” The second requires a timely accommodation request.
• Disparate Impact: Challenges a neutral policy producing unequal effects on a protected group. Plaintiffs must link the policy to statistical disparity.
• Protected Activity (Retaliation): Complaining is protected only if the employee reasonably believes the employer is breaking discrimination laws, not merely policy disagreements.
• Rule 16(b) vs. Rule 15(a): A scheduling order (Rule 16) can limit the time to amend pleadings; once that deadline passes, the party must show “good cause” to reopen it—simply relying on Rule 15’s generosity is insufficient.

5. Conclusion

Pajer v. Disney cements several doctrinal guardrails in the Eleventh Circuit:

1. Unvaccinated status—even when tied to employer fears of contagion—is not a disability under the ADA.
2. Religious discrimination claims require a demonstrated conflict and an accommodation request pertaining to the challenged rule itself.
3. Disparate impact allegations must be grounded in factual assertions of disproportionate effect, not conjecture.
4. Opposition to lawful, neutral safety rules is not protected retaliation activity absent a reasonable belief of illegality.
5. Civil-procedure deadlines matter; litigants must respect Rule 16(b) or risk forfeiting amendment opportunities.

In the broader landscape, the decision offers employers a clearer roadmap for post-pandemic policy enforcement and signals to plaintiffs the evidentiary and procedural rigor required to survive dismissal. The Eleventh Circuit’s reaffirmation that “future risk ≠ present disability” may influence courts nationwide as they grapple with the lingering legal aftershocks of COVID-19.