“The Adaptive Accommodation Doctrine” – Seventh Circuit Clarifies Employers’ Right to Alter Disability Accommodations When Circumstances Materially Change

Introduction

In David P. Bourke v. Douglas A. Collins, No. 24-2221 (7th Cir. July 7 2025), the United States Court of Appeals for the Seventh Circuit addressed an increasingly common problem: How far must a federal employer go to preserve an existing disability accommodation when external events—here, the COVID-19 pandemic—render that accommodation incompatible with new operational realities?

The plaintiff, David Bourke, a mobility-impaired employee of the U.S. Department of Veterans Affairs (VA), originally received a reserved parking spot adjacent to a rear entrance and a locked storage room for his mobility scooter. When pandemic screening protocols closed that entrance, the VA withdrew the arrangement and offered a substitute: a designated disabled-parking space near another building entrance and an unsecured, low-traffic indoor alcove for the scooter. Bourke declined, contending the alternate storage exposed his scooter to theft, and sued under the Rehabilitation Act of 1973 (§ 791) for failure to accommodate.

The Seventh Circuit affirmed summary judgment for the VA, announcing what this commentary terms the Adaptive Accommodation Doctrine: When circumstances materially change, an employer may unilaterally modify an existing accommodation—without first proving “undue hardship”—so long as the new arrangement remains reasonable in light of the employee’s disability and the employer’s operational needs.

Summary of the Judgment

• Reasonableness Found: The court held that the VA’s alternate parking/storage solution was objectively reasonable and enabled Bourke to perform his job functions.
• Interactive Process: Even if the VA’s communication was imperfect, liability cannot arise solely from a flawed interactive process when the offered accommodation itself is reasonable.
• Precedent Clarification: The court rejected Bourke’s proposed rule that any withdrawal of an accommodation requires an “undue hardship” showing, distinguishing its prior decision in Bilinsky v. American Airlines.
• Sovereign Immunity: Because Bourke’s claim arose under § 791 (not § 794), the federal government’s waiver of immunity for compensatory damages applied. The court adopted the parties’ concession on this point.
• Holding: Summary judgment for the VA affirmed; no reasonable jury could find the VA failed to reasonably accommodate Bourke’s disability.

Analysis

A. Precedents Cited and Their Influence

1. Lane v. Peña, 518 U.S. 187 (1996)
   Distinguished § 791 from § 794 for sovereign-immunity purposes. The Seventh Circuit relied on Lane to accept that compensatory damages are available against federal employers under § 791, clearing jurisdictional hurdles.
2. McCray v. Wilkie, 966 F.3d 616 (7th Cir. 2020) & Swain v. Wormuth, 41 F.4th 892 (7th Cir. 2022)
   Provided the current tripartite test for failure-to-accommodate claims, framing the dispute around the “reasonableness” of the VA’s alternate accommodation.
3. Jay v. Intermet Wagner, 233 F.3d 1014 (7th Cir. 2000)
   Emphasised that employers, not employees, choose among reasonable accommodations; perfect alignment with an employee’s preferences is unnecessary. This principle underpins the court’s refusal to mandate locked storage.
4. Bilinsky v. American Airlines, 928 F.3d 565 (7th Cir. 2019)
   Recognised that rescinding an accommodation without a change in circumstance is suspect. The court distinguished Bilinsky by pointing to the pandemic as a paradigm-shifting circumstance.
5. US Airways v. Barnett, 535 U.S. 391 (2002)
   Addressed undue hardship, but the Seventh Circuit clarified that Barnett’s undue-hardship burden does not automatically arise when an existing accommodation is modified for legitimate operational reasons.
6. Additional supportive citations: Yochim v. Carson, 935 F.3d 586 (7th Cir. 2019); Sansone v. Brennan, 917 F.3d 975 (7th Cir. 2019); Gratzl and Charter Communications (employer discretion).

B. Legal Reasoning

The panel, per Judge Brennan, employed a step-wise analysis:

1. Correct Statutory Anchor: Re-characterised Bourke’s action as a § 791 employment-discrimination claim, thereby ensuring damages jurisdiction.
2. Elemental Focus: With disability and qualification conceded, only accommodation reasonableness remained contested.
3. Objective Reasonableness: The court evaluated tangible facts: distance from new parking to scooter; seclusion of storage area; absence of prior thefts; pandemic-imposed entrance restrictions. These facts made the alternate arrangement “reasonable as a matter of law.”
4. Lack of Genuine Dispute: Bourke’s theft fears were “speculative,” insufficient to create a triable issue.
5. Interactive Process Not Dispositive: Even assuming the VA prematurely withdrew the initial accommodation, the Rehabilitation Act’s focus is outcome-oriented—“reasonable accommodation” not “perfect dialogue.”
6. Rejection of a Per Se ‘Undue Hardship’ Requirement: The court reasoned that overlaying an automatic undue-hardship burden whenever an accommodation changes would invert employer discretion recognized in Jay and its progeny. Instead, undue hardship is triggered only when the modified accommodation itself fails to be reasonable or imposes substantial difficulty or expense.
7. Pandemic as Material Change: COVID-19 protocols qualified as the sort of “change in circumstance” that legitimizes revisiting accommodations under Bilinsky.

C. Likely Impact of the Decision

1. Guiding Employers During Crises:
Employers—especially federal agencies—now have appellate-level confirmation that they may proactively tailor accommodations when public-health or other operational exigencies arise, provided employees still receive functionally effective assistance.

2. Litigation Posture:
Plaintiffs will face a higher evidentiary bar when challenging modified accommodations. Mere preference for an earlier arrangement or hypothetical risks (e.g., theft) will rarely defeat summary judgment.

3. Clarification of § 791 Damages:
By accepting the parties’ concession, the panel quietly reinforces the line that compensatory damages are available against the federal government under § 791 but not § 794. Practitioners must plead the correct section to preserve monetary relief.

4. Potential Supreme Court Interest:
The decision contributes to a growing circuit dialogue over how the ADA/Rehabilitation Act interface with emergency public-health measures, a topic that could attract high-court attention if other circuits adopt divergent approaches.

Complex Concepts Simplified

• Reasonable Accommodation: A modification or adjustment that allows a disabled employee to perform essential job tasks without imposing significant difficulty or expense on the employer. It need not be the employee’s preferred solution.
• Undue Hardship: A special defense for employers: they may decline a requested accommodation if it would create substantial cost or operational disruption. The Bourke ruling clarifies that employers need not prove undue hardship every time they modify an existing accommodation—only when they refuse to provide any reasonable accommodation.
• Interactive Process: A collaborative dialogue to explore accommodation options. Though advisable, a flawed process does not itself create liability if the ultimate accommodation is adequate.
• Sovereign Immunity: The legal doctrine that the government cannot be sued without its consent. Congress waived this immunity for monetary damages in federal-employment disability cases under § 791 but not under § 794.
• Summary Judgment: A procedural device where the court decides a case (or part of it) without trial because no material facts are in genuine dispute, and one side is entitled to judgment as a matter of law.

Conclusion

Bourke establishes a pragmatic precedent for an era of rapid, unforeseen workplace disruptions: Employers may reassess and adjust disability accommodations when external circumstances materially change, so long as the substitute remains objectively reasonable. The Seventh Circuit’s refusal to impose an automatic undue-hardship requirement preserves managerial flexibility while still safeguarding employees’ core statutory rights. Practitioners should view the decision as both a shield for employers acting in good faith during crises and a cautionary tale for plaintiffs whose objections rest on conjectural harms. The ruling further cements the importance of pleading under the correct subsection of the Rehabilitation Act to secure damages against federal defendants. Overall, the Adaptive Accommodation Doctrine is likely to influence future disability-accommodation disputes nationwide, especially in contexts where operational policies must evolve in response to public-health, security, or technological developments.