In a split decision, based upon an issue of first impression, the 6th Circuit recently held that no retaliation claim exists under Section 504 of the Rehabilitation Act in the case of Smith v. Michigan Department of Corrections.[1] The holding is somewhat surprising as courts nationwide have long assumed without questioning that the cause of action exists.

The issue of whether a retaliation claim exists presented itself in an unusual manner. Smith sued his former employer, Michigan Department of Corrections and the State of Michigan (collectively MDOC), under Section 504 of the Rehabilitation Act[2] for failing to provide him a reasonable accommodation for his disability and retaliating against him for making an accommodation request. The district court granted summary judgment to MDOC on the failure-to-accommodate claim, but the retaliation claim was tried for 10 days to a jury, which found in favor of MDOC. Smith appealed several trial issues, including whether the jury instruction erroneously required Smith to prove his disability was the “sole cause” of MDOC’s adverse action against him — a standard drawn from Section 504(a) of the Rehabilitation Act. However, prior to oral argument, the 6th Circuit, sua sponte, raised the issue of whether a retaliation claim even exists under the act — an issue the parties and the district court assumed was not even in dispute.

Judge Bush, joined by Judge Batchelder, wrote the majority opinion. The majority first noted that the Supreme Court has never held that any provision of the act creates a private right of action for retaliation.[3] Nor is there binding precedent from the 6th Circuit.[4] The majority recognized that “[t]he longstanding practice of this circuit has been to proceed under the assumption that a cause of action for retaliation exists under § 504.”[5] However, much like decisions from other circuit courts, the majority viewed caselaw as “widespread but informal acceptance of retaliation claims lacking meaningful statutory analysis.”[6] Therefore, the majority turned to statutory analysis.

First, the majority noted the presumption against implied causes of action[7] when the statute in question was enacted much like a contract between the federal government and state governments.[8] Any conditions the federal government attaches to the receipt of federal funds must be stated unambiguously. That is, recipients of federal funds must understand that they may be potentially accepting exposure to private lawsuits.[9] Because Section 504(a) does not explicitly mention retaliation, the majority “decline[d] to read retaliation into a provision that says nothing about it.”[10]

Second, the majority focused upon the language of Section 504(d) of the act. Smith argued that the cause of action for retaliation must arise from Section 504(d)’s express incorporation of “standards” from the ADA, including the ADA’s anti-retaliation provision, 42 U.S.C. § 12203.[11] The majority again noted that Section 504(d) contained no express provision for a retaliation claim.[12] As for the term “standards,” the majority found that “standards” are not synonymous with “cause of action.”[13] “Standards guide how claims are adjudicated, not whether a cause of action exists in the first place.”[14] Smith also argued that the Supreme Court case of Jackson v. Birmingham Board of Education,[15] holding that Title IX’s general prohibition against discrimination on the basis of sex was broad enough to include retaliation even in the absence of an express provision, was persuasive authority to find a retaliation cause of action under Section 504.[16] The majority, however, disagreed. It noted that, unlike Title IX, the Rehabilitation Act does not carry with it a similar history of expansive judicial interpretation, nor does the act contain general language like Title IX’s prohibition on discrimination “on the basis of sex.”[17]

The majority summarized its holding as follows. 

We read § 504(d) to incorporate from the ADA only adjudicatory standards — and not to create new causes of action — because that interpretation aligns with both the ordinary legal meaning of ‘standards,’ and the structure of the Rehabilitation Act and related acts. Subsection (d) 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.[18]

On the issue of whether a retaliation claim exists under the act, Judge Bloomekatz wrote a vigorous dissent. First, the dissent pointed to long-standing caselaw within the 6th Circuit and in other circuits which recognized a cause of action for retaliation under the act.[19] Second, from a policy standpoint, the dissent noted that “[p]rotection against retaliation is essential to effective enforcement of anti-discrimination statutes because those regimes depend on individuals coming forward to report violations.”[20] Third, the dissent agreed with Smith’s argument that, by incorporating the ADA’s anti-retaliation provision, Section 504(d) is not silent as to retaliation; it therefore prohibits retaliation and provides a cause of action for retaliation in employment cases.[21] The dissent explained that the majority’s holding — that no right of action for retaliation exists — would render meaningless Section 504(d)’s express incorporation of the ADA’s anti-retaliation provision.[22] According to the dissent, when the Rehabilitation Act was amended by adding cross-references to the ADA within Section 504(d), such cross references should not be treated as surplusage. Rather, courts should interpret the ADA cross references (particularly those provisions that do not relate to causation standards) to “give effect, if possible, to every clause and word of a statute.”[23] In sum, Section 504(d)’s incorporation of the ADA’s anti-retaliation provision is itself an express intent of Congress to allow a cause of action for retaliation under Section 504 of the act, according to the dissent.

The plaintiff filed a petition for certiorari in February 2026. Thus, it is possible that the Supreme Court may directly take up this issue. Notwithstanding, there are two key takeaways from this split decision. First, the causation standard applicable for employment-related claims brought under Section 504 is most likely “but for” causation (the same as under Title I of the ADA), rather than “sole” causation. Judge Bloomekatz expressly held so in her dissenting opinion, noting that Section 504(d) creates a carve-out for employment-related claims and incorporating the standards of Title I of the ADA to such claims.[24] The majority opinion, in dicta, essentially says the same thing. “Instead, § 504(d) merely states that the ‘standards’ for determining whether employment discrimination has occurred under the Rehabilitation Act are the same as those applied under Title I of the ADA.”[25] Had Judges Bush and Batchelder found that a retaliation claim existed under Section 504, they most likely would have agreed with Judge Bloomekatz that the “but for” causation standard applies to employment-related claims.

The second takeaway is consideration of whether a retaliation claim exists under Section 501 of the Rehabilitation Act,[26] which applies to disability discrimination claims against the federal government, i.e., federal sector employment. Notably, Section 501(f) has identical wording to Section 504(d).[27] Many of the same arguments raised in the Smith case — both pro and con — could be made in the context of Section 501. One notable distinction, however, is that Section 501 applies to the federal government, which normally embraces (rather than limits) broad anti-retaliation provisions and schemes. Food for thought, however.

Doug Hamill is a member of Mikel & Hamill PLLC in Chattanooga.  He primarily represents individuals in employment law matters.  He can be reached at dhamill@mhemploymentlaw.com.