Third-Party Accommodations

Doron Dorfman* November, 2025

Does disability rights law impose an obligation on employers, schools, and other places of public accommodation to control the behavior of coworkers, students, or other third parties to accommodate an individual with disabilities? This Article examines that unexplored legal question and shows that the law frequently fails to protect people with disabilities from the choices and behaviors of third parties. Judges often consider these major barriers to access beyond the reach of the Americans with Disabilities Act’s reasonable accommodation mandate. This Article argues that this problem results from improperly imposing the privity paradigm, a doctrine that limits the inquiry about the reasonableness of an accommodation relative to the relationship between the first party (the disabled individual) and the second party (the employer or other entity covered by the Americans with Disabilities Act). Using disability studies, legal theory, and political economy analysis, this Article shows how a narrow interpretation of the reasonable accommodation mandate has failed to adapt to our modern understanding of disability as a complex interaction between the impairment and the social environment. To address the issue, this Article introduces a new theory of third-party accommodations, which would require others to alter or cease behaviors to accommodate an individual with disabilities. This Article then suggests a normative framework that courts can use to analyze cases involving requests for third-party accommodations, including the factors that judges should balance to determine the reasonableness of a request. In highlighting the need to move beyond a constricted interpretation of reasonable accommodation, this Article imagines a new horizon for disability justice.

Introduction

Since its adoption, the Americans with Disabilities Act (ADA) has signaled a paradigm shift in antidiscrimination law.¹ Unlike other statutes that use negative rights to prohibit discrimination against individuals in protected classes,² the ADA’s “reasonable accommodations” mandate goes one step further.³ Using a form of positive rights, the ADA affirmatively requires public and private entities to modify physical environments, rules, and policies to provide people with disabilities⁴ access to labor markets and other facets of everyday life.⁵ Yet, despite the ADA’s broad reach, significant access barriers related to actions of third-parties—like colleagues, classmates, or patrons—remain. So, what is the law’s role in requiring third parties to modify their behavior to accommodate someone else? As disability inclusion practices become more commonplace, this question is being tested in courts and in public life.

This Article introduces and develops a third-party accommodations theory that disrupts the traditional narrative about the scope of disability rights law. By drawing insights from case law, legal theory, disability studies, and political economy analysis—and by paying close attention to the complex ways disability is socially constructed and intersectional—this Article looks beyond the traditional privity concept⁶ underlying current reasonable accommodations doctrine. It therefore forges a new way of thinking about our commitments to ensuring equality, inclusion, and disability justice.

To illustrate the reasonable accommodations doctrine’s contemporary shortcomings, consider the following three examples.

Pamela Core worked at the county’s social services office for several years before she started experiencing difficulty breathing whenever her coworkers wore strong perfume.⁷ At one point, Core experienced such a severe reaction that she had to be rushed to the emergency room.⁸ Core was subsequently diagnosed with Multiple Chemical Sensitivity (MCS),⁹ a condition where chemical and odor exposure causes harmful symptoms, including severe respiratory distress.¹⁰ She requested that her employer enact a no-fragrance policy in the workplace. The employer refused.¹¹ To make matters worse, some coworkers began mocking Core to her face and on social media upon her return to the office.¹² Core sued, claiming the employer’s refusal to accommodate her disability violated the ADA.¹³ She eventually lost in a jury trial.¹⁴

Dr. Jorge Mendez had a similar experience. As an immunocompromised professor at a large research university, he exercised great care to avoid a potentially fatal COVID-19 infection.¹⁵ In fall 2021, Dr. Mendez requested an accommodation requiring his students to wear masks during his classes.¹⁶ The university’s ADA coordinator denied his requested accommodation because the university “could not require atypical behavior from other people.” Since masks were no longer mandatory, the coordinator believed it would be “atypical behavior” to require Dr. Mendez’s students to mask. The ADA coordinator also lectured Dr. Mendez on how accommodations “can never be burdensome to other people.”¹⁷

And finally, consider Tamara Brown’s experience. When Brown, who is autistic,¹⁸ began working as an intern at a medical lab, she informed the principal investigator (PI) that her neurodivergence prevented her from effectively reading nonverbal cues. She asked that her coworkers use more verbal communication when interacting with her—to help her “read between the lines.” The PI refused the accommodation because he did not want to “trouble” everyone else. A few weeks later, the PI summoned Brown to his office and terminated her because her “aloof” demeanor upset her coworkers.¹⁹

All three examples highlight a major gap in disability rights law: The reasonable accommodations doctrine does not traditionally extend to third parties’ behaviors or choices. I argue that such a narrow vision of reasonable accommodations stems from improperly imposing a traditional privity paradigm, where the first party is the disabled individual, and the second party is the employer or owner of a private or public entity covered by the ADA. This approach disregards how third parties’ actions and choices can significantly affect access for others.²⁰ It also ignores what disability studies, feminist studies, and legal scholars have long referred to as interdependence: the recognition of mutual dependency between disabled and nondisabled members of society and the universal need for assistance as part of every human experience.²¹

This new theory of third-party accommodations would require persons and entities—besides those with traditional second-party status—to change their behavior to accommodate disabled individuals. Such changes would include both passive behaviors (e.g., ceasing to wear perfume) and active behaviors (e.g., washing hands or wearing a mask) and, thus, would encompass behaviors employees and patrons bring with them from outside the ADA-covered workplace or public activity. The Article then suggests a new normative framework that courts can use to analyze cases involving third-party accommodation requests, including factors courts should balance to determine a request’s reasonableness. These factors include the degree to which the accommodation infringes on third parties’ personal freedoms; whether the accommodation’s cost outweighs the benefit; how much control the second party has over the situation; conflicts between accommodations and access needs; existing norms or customs to accommodate under the circumstances; and, finally, the nature of the disability.

This Article traces the availability of third-party accommodations under the ADA and its precursor, section 504 of the Rehabilitation Act (Section 504).²² It illuminates how intersectionality, power, deservingness, and cultural norms play into the recognition of third-party accommodations and reveals inconsistencies in how courts treat these requests. Although disabled plaintiffs successfully obtained accommodations involving no-smoking rules during the 1990s and early 2000s²³ and restrictions on the presence of allergen foods in schools, workplaces, and aboard airplanes,²⁴ people with fragrance and chemical sensitivities were much less successful in obtaining fragrance-free accommodation policies.²⁵ The difficulties in using the ADA to address third-party behavior became even more pronounced during the COVID-19 pandemic, as some courts refused to require masks as an accommodation for immunocompromised students and teachers. The circuits remain split on this issue.²⁶

The Article proceeds in six parts. Part I describes how current interpretations of reasonable accommodations fail to recognize that other people’s behaviors can constitute barriers to access before defining and outlining the contours of the new third-party accommodations category. Parts II–V trace four major contexts in which courts have recognized, denied, or intermittently granted third-party accommodations. Part VI shifts from an explanatory register to a normative one, introducing a nonexhaustive list of factors and balancing tests for courts and decisionmakers to evaluate the reasonableness of a requested third-party accommodation. The Article concludes by considering these new applications of third-party accommodations.

I. Accommodations Beyond Privity

While the legal construct of accommodations has been useful in creating access and altering the built environment, traditional views of privity (existing between only two parties) unduly limit its reach. Disability studies literature understands disability as a complex interaction between the impairment and social environment, a conceptualization that demands including third parties in disability accommodations. Existing legal literature has yet to address this missing link, failing to consider the role third parties play in accommodations doctrine. ²⁷ Third-party accommodations require coworkers and patrons to refrain from, alter, or engage in behavior to accommodate a disabled person, allowing people with disabilities to access certain social environments such as the workplace or places of public accommodation. This Part begins by discussing conceptualizations of accommodations that exist in the law before introducing the new category of third-party accommodations and explaining its place and importance within current doctrine.

A. Access and Accommodations

Access is a foundational concept in disability rights law, “both conceptually and practically.”²⁸ Disabled people need to navigate a world that was designed and built without considering their needs.²⁹ Without access to physical spaces, markets, and environments, people with disabilities cannot exercise their rights as equal citizens.³⁰ Nevertheless, access is not in and of itself a legal construct. The law created the concept of reasonable accommodations to achieve access for disabled people and allow them “the right to live in the world.”³¹

Title I of the ADA, which addresses employment discrimination, defines reasonable accommodations through a list of examples: making facilities accessible, acquiring special equipment, restructuring positions, modifying work schedules, reassigning shifts, and providing sign language interpreters.³² As the Equal Employment Opportunity Commission’s (EEOC) Interpretive Guidance on Title I makes clear, this list is not intended to be exhaustive;³³ rather, the guidance suggests other accommodation examples, such as providing accessible transportation, reserved parking spaces, or a flexible work schedule.³⁴

Another, more conceptual definition describes accommodations as the elimination of barriers. In 1967, Congress established the National Commission on Architectural Barriers to Rehabilitation of the Handicapped, which shortly after released its groundbreaking report, Design for All Americans.³⁵ At a conceptual level, this report connected barrier-free environments with productive citizenship.³⁶ Correspondingly, the ADA’s original finding and purpose preamble acknowledges that “individuals with disabilities continually encounter . . . the discriminatory effects of architectural, transportation, and communication barriers” and that “the failure to remove societal and institutional barriers” precludes Americans with disabilities from fully participating in all aspects of society.³⁷ Similarly, in international law, Article Nine of the UN Convention on the Rights of Persons with Disabilities (CRPD) discusses the “identification and elimination of obstacles and barriers to accessibility.”³⁸

This Article takes that theorization a step further. It demonstrates the conceptualization of reasonable accommodations often characterized by courts and decisionmakers—one that allegedly only applies to two parties (the disabled person and the employer, state actor, or private actor)—fails to allow access to people with disabilities in myriad contexts.

B. The Privity Paradigm: Accommodations as Only Involving Two Parties

Accommodations are a unique feature in American law. Although the U.S. civil rights tradition has historically been based on negative rights that protect against government interference with individuals’ conduct,³⁹ accommodations are akin to “positive rights.”⁴⁰ These rights require state and private actors, including employers, to affirmatively provide resources or exemptions for people with disabilities⁴¹ or people holding sincere religious beliefs.⁴² In that respect, accommodations respond to the inherent limitations of antidiscrimination law that race scholars identify between social reality and legal intervention aimed at prohibiting discrimination.⁴³ Antidiscrimination law, specifically race discrimination law, is designed around a “perpetuator perspective,” one meant to neutralize the wrongdoing causing the discrimination instead of actual conditions contributing to it.⁴⁴ In other words, the law shows indifference to the victim’s condition: it instead focuses on the misguided conduct of particular bad actors found at fault.⁴⁵

Understanding disability accommodations as positive rights recognizes that prohibiting disability discrimination cannot sufficiently remedy past and ongoing exclusion from the labor market and civic life.⁴⁶ This recognition connects disability accommodations and affirmative action initiatives. In her work on the relationship between race and disability, Professor Jamelia Morgan discusses how scholars drew comparisons between legal injuries and remedies from the civil rights movement and disability rights laws.⁴⁷ Similar to affirmative action, disability accommodations are often viewed as “special rights” that give an unfair advantage as opposed to leveling the playing field.⁴⁸

Under reasonable accommodation doctrine’s presumption of two-party privity between the disabled person and the employer or public/private actor,⁴⁹ the latter bears the direct cost of the accommodation.⁵⁰ For example, following a request from the disabled employee and an interactive process,⁵¹ it is the employer who must reorganize shifts to allow an employee with chronic illness to have a flexible work schedule.⁵² It is the municipality that must install audible devices at crosswalks to tell blind and visually impaired individuals when it is safe to cross the streets.⁵³ It is the restaurant owner who must allow the disabled patron to bring in their service dog.⁵⁴

Disability law scholars like Nicole Porter and Michele Travis have discussed how, in reality, a workplace accommodation indirectly affects third parties, specifically coworkers.⁵⁵ An accommodation could mean bypassing workplace seniority system rules to prevent the reassigning a nondisabled employee to a desired position.⁵⁶ Accommodations could disrupt the work schedule: When an employee changes shifts, other coworkers will take on what could be considered the less desirable shifts.⁵⁷ According to many courts, remote work as an accommodation would negatively affect on-site teamwork and supervision.⁵⁸ Similarly, outside the workplace, allowing disabled guests to go to the head of the line at Disney theme parks would increase the waiting time for other guests.⁵⁹ Financial burdens are perhaps the most common way disability accommodations affect others.⁶⁰ The overall costs of disability accommodation “may be borne indirectly by nondisabled employees if employers limit compensation or reduce job openings rather than reduce profits or pass the costs onto consumers.”⁶¹ Such indirect burdens could create hostility toward disabled employees whose workplace accommodations are viewed as “special treatment.”⁶²

Nevertheless, research has shown this indirect cost argument to be overstated in most cases due to the reasonableness standard and statuary limits put on the extent of accommodations, such as the “undue burden/hardship” claim.⁶³ Indeed, Justice Alito and Justice Sotomayor both discussed the effects workplace accommodations on coworkers in Groff v. DeJoy.⁶⁴ Both justices agreed that an accommodation affecting coworkers should be denied only if its effects cause the employer undue hardship.⁶⁵ Importantly, disability accommodations do not solely entail burdens. Professor Elizabeth Emens convincingly argues that disability accommodations could actually benefit nondisabled employees and other third parties; for instance, moving morning meetings to later in the day could benefit “coworkers who are not early risers” and using ergonomic furniture and office design could benefit coworkers by easing strain and preventing injuries.⁶⁶

This Article contributes to the doctrine on reasonable accommodations and theorizes on their practical implementation by introducing situations in which third parties, such as coworkers or other patrons, directly bear the cost of accommodation. I argue that this is a unique accommodations category, yet to be discussed in the literature, which I call “third-party accommodations.” I show how courts approved third-party accommodations, deeming them reasonable despite pushback from employers and public/private actors who, pointing to the infringement on third-parties’ liberties, refused to provide the accommodations. In the next Section, I further define the new category of third-party accommodations and how they are critical in fulfilling disability accommodations’ original purpose: eliminating barriers.

C. Enter Third-Party Accommodations

Barriers to access for disabled people include spatial barriers (such as stairs, high curbs, or obstructed sidewalks);⁶⁷ inaccessible design of everyday objects (such as high-top tables or narrow toilet stalls); ⁶⁸ and legal barriers, such as legal capacity and guardianship laws that have long impeded autonomous decisionmaking for people with mental and developmental disabilities.⁶⁹ Socioeconomic barriers are reflected in the higher rates of poverty among people with disabilities.⁷⁰ Attitudinal barriers that relate to complex processes of stigmatization and devaluation, known as ableism, prevent participation in the labor market and curtail civic engagement.⁷¹ More recently, scholars identified other attitudinal barriers to participation, such as “fear of the disability con”—the moral panic that people fake disabilities to take advantage of disability law and policy⁷²—and perceptions related to the aesthetics and disgust associated with disabilities.⁷³

Other people’s behaviors, acts, and practices that directly affect disabled individuals pose another important barrier. To remedy this barrier to access, we need a unique type of accommodation, one that prohibits, or at least greatly reduces, this behavior (like stopping smoking or not consuming allergenic food) or requires active engagement in certain practices (like handwashing or mask wearing) to accommodate a disabled person’s needs. I refer to such accommodations as “third-party accommodations.”

Third-party accommodations encompass actions that third parties alter or initiate in real time when engaging with a disabled person. They inherently change relational behavior that enables direct everyday interactions between nondisabled and disabled individuals.⁷⁴ Third-party accommodations allow members of these two groups to inhabit the same space and engage in meaningful exchanges.⁷⁵ This characteristic distinguishes third-party accommodations from other classic burden-shifting accommodations discussed in case law and scholarship (like giving up seniority, changing shifts, or reassigning manual tasks).⁷⁶ Third-party accommodations are thus situated within recent discussions in disability law scholarship that explore the law’s manifestation in relationships and interactions between nondisabled and disabled individuals.⁷⁷

In other words, while previous discussions of accommodations focused on the change in status for and often indirect burden on third parties, the immediate change in behavior while encountering a disabled person remains unexplored. Whether it is forgoing perfume, masking in school, or changing one’s communication style with an autistic colleague, it is the accommodation’s behavioral and relational nature that distinguishes this new category of third-party accommodation from other burdens on third parties.

Insofar as third-party accommodations refer to specific types of behavior that enable relationships between nondisabled and disabled individuals, this category involves behaviors that are not job related or directly connected to the mission of places of public accommodation covered by Title III of the ADA (a broad category that includes commercial entities such as movie theaters, shops, or restaurants).⁷⁸ These behaviors include ones that employees or patrons bring with them from outside the ADA-covered workplace or public space. It is a type of behavior that, even if altered or eliminated altogether, would not “fundamentally alter[]” the job or public practice.⁷⁹

The third-party accommodations’ requirement that multiple third parties engage in or refrain from certain behaviors further differentiates them from classic “reasonable” disability accommodations, which require only the employer or public/private actor themselves to act or refrain from acting in a certain way.

To help elucidate this difference, consider the following example. An electric and gas utility company employee has a sensitivity to tobacco smoke—this could be due to a respiratory condition like severe asthma or, as described in a 2020 case, a chronic corneal condition—that causes eye irritation when exposed to even a small dose of smoke or its smell on someone’s clothes.⁸⁰ Assume this condition is considered a medically recorded impairment that “substantially limits one or more major life activities” of the employee, making the condition a disability under the ADA.⁸¹ The ADA prohibits discrimination “against a qualified individual on the basis of disability in regard to . . . terms, conditions, and privileges of employment,”⁸² which includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.”⁸³ In this scenario, as in the actual case, the employee works in the Customer Metering Service Department as a service representative tasked with reading clients’ electric meters in their homes.⁸⁴ The employee thus does not work from an office but drives in company cars with a colleague to check meters in a specific area. The accommodation asked for under these circumstances would be a classic reasonable disability accommodation—an assignment with a nonsmoking partner to avoid respiratory difficulties or eye irritation.

In a second scenario, an employee with the same disability works at the company’s headquarters in a large office space downtown. In that case, the employee would seek a third-party accommodation—a no-smoking policy that asks coworkers not to wear clothes exposed to tobacco smoke at work. In contrast to the classic reasonable disability accommodation’s burden on the employer to schedule the disabled employee with nonsmoking partners, this third-party accommodation requires cooperation from multiple individuals working for the employer, placing the burden on both coworkers and the employer. What determines the nature of the accommodation, as with every disability accommodation, depends on the job requirements and the circumstances surrounding these requirements.

Discussing third-party accommodations showcases the interconnectedness and complex interaction between the impairment (pathology) and social environment articulated through the bio-psycho-social model of disability that replaced the older social model.⁸⁵ Behaviors like smoking, using chemicals and scented products, consuming allergenic foods, or spreading potentially deadly viruses in a social environment create access barriers for disabled individuals.

As this Article will demonstrate, the range of behaviors requiring a third-party accommodation to allow disability access is quite broad. Discussing examples of third-party accommodation and courts’ reactions to each will help reveal the doctrinal scope of accommodations claims and how societal trends, norms, and values affect judicial decisionmaking.

II. No-Smoking Policies as Third-Party Accommodations

In the ADA’s first two decades, between 1990 and 2008, most federal court decisions expressed hostility toward the newly enacted disability rights law. As Professor Ruth Colker famously showed, defendants prevailed in 94% of ADA cases in federal district courts and in 84% of cases on appeal by 1998.⁸⁶ In a long series of cases involving employment discrimination claims, federal courts including the Supreme Court interpreted the ADA’s threshold definition of disability narrowly, denying standing for plaintiffs who saw themselves as part of the law’s broad protected class.⁸⁷ This period of scant wins for plaintiffs filing ADA claims is known as the “Backlash Against the ADA.”⁸⁸

Forgotten in the ADA’s history is how an example of third-party accommodation—the claim for a no-smoking rule as an accommodation—defied ADA plaintiffs’ losing streak. This Article is the first legal scholarship describing that judicial trend, and it therefore contributes not only to the historical disability rights narrative in courts, but also to the current understanding of third-party accommodations’ contours and historical roots.

During the 1990s, smoking, long viewed as a status symbol and legitimate recreational behavior,⁸⁹ was allowed pretty much everywhere, including in offices, restaurants, and airplanes.⁹⁰ Today, smoking is a third-party behavior that society deems harmful to all but especially to people with respiratory impairments like asthma or chronic obstructive pulmonary diseases.⁹¹

Smoking in the workplace and public spaces carries enormous costs, affecting not only individual smokers but their families, coworkers, those who come in contact with them, and the economy as a whole.⁹² In the late 1990s and early 2000s, during the Backlash Against the ADA, courts held that employees could be considered disabled under the ADA, or its precursor Section 504, if secondhand smoke substantially impaired the employee’s ability to breathe, regardless of whether this impairment arose in or out of the workplace.⁹³

As a remarkable exception to the trend of narrowly interpreting disability’s definition, courts expressed sympathy toward secondhand smoke-related disability claims and acknowledged that employers should have granted reasonable accommodations.⁹⁴ In such cases, many courts saw the appropriate remedy under the ADA as what I now call a third-party accommodation: a modification to workplace policies that would prohibit smoking on the job or at least in enclosed spaces at a place of employment (as opposed to more classic accommodations). For example, a 2001 California district court opinion acknowledged the insufficiency of installing air fresheners and asserted that a no-smoking policy does not constitute an undue hardship.⁹⁵ The court stated, “In fact, studies have shown that smoke-free workplace policies and laws are inexpensive to implement and do not harm businesses that have implemented them.”⁹⁶

The Middle District Court of Pennsylvania also found that implementing a no-smoking policy was reasonable as a matter of law.⁹⁷ In this case, a former police officer sued the City of Scranton, arguing that the city failed to reasonably accommodate her severe allergy to tobacco smoke.⁹⁸ The city first took a classic accommodation approach, designating a nonsmoking room for the plaintiff outside the police headquarters and providing her access to nonsmoking areas in the building.⁹⁹ However, she could not perform some required job duties, such as accessing police files and databases, in these areas.¹⁰⁰ Although the police chief attempted to implement an order banning smoking in the police headquarters, the chief rescinded the order, concluding that the policy had to be negotiated with the union.¹⁰¹

The court ultimately denied the city’s request for summary judgment, finding that the reasonableness of the accommodations offered by the policy was disputable, since the plaintiff could not perform many of her duties in these nonsmoking rooms.¹⁰² Moreover, “police officers continued to smoke in the department despite her complaints” and “the City [never] addressed Ms. Thursby’s complaints about exposure to tobacco smoke and odors in the roll call room and in police vehicles.”¹⁰³ Finally, the court dismissed the city’s argument that implementing a no-smoking policy would violate its collective bargaining agreement.¹⁰⁴ Per the court, “there [was] no evidence that negotiating a nonsmoking policy with the police union would impose an undue hardship on the City.”¹⁰⁵

Courts’ approval of no-smoking policies as reasonable accommodations extended beyond the workplace and into public spaces. For example, in 1995, the Second Circuit determined that the ADA does not preclude smoking bans in restaurants as reasonable accommodations (requiring a fact-specific inquiry).¹⁰⁶ Other courts applied the same rule to hospitals¹⁰⁷ and city ordinances allowing open burning within its limits.¹⁰⁸ Importantly, the Northern District of Iowa emphasized the availability of third-party accommodations: “[T]he ADA can be used as a vehicle to compel an entity to regulate the conduct of nonparties that is injurious to a disabled person when the means to do so are within the power of that entity.”¹⁰⁹

One could, therefore, find roots for third-party accommodation in the ADA’s early days, when it came to disabilities related to smoking sensitivity. Soon afterward, courts began discussing another type of third-party accommodation: food allergies.

III. Restricting Allergen Foods and Third-Party Accommodations

Food allergies affect thirty-three million Americans for whom exposure to certain food triggers an immune response (an allergic reaction) in which the person’s immune system attacks otherwise harmless proteins (allergens) in the food.¹¹⁰ An allergic reaction can affect a person’s skin, respiratory, gastrointestinal, and circulatory organs.¹¹¹ A severe and potentially deadly allergic reaction known as anaphylaxis can occur through accidental ingestion of allergenic food.¹¹²

In the early days of the twentieth century, scientists considered food allergy “the ugly duckling” of immunology, and often regarded it as a strange and even illegitimate type of allergy.¹¹³ This view persisted until the discovery of the antibody immunoglobulin E (IgE) in 1966.¹¹⁴ The appearance of varying IgE levels became the conventional litmus test for legitimizing a food allergy as a “true” medical condition.¹¹⁵ By the mid-1990s, food allergies became a major public health issue,¹¹⁶ with some scientists describing the United States as having an “epidemic problem” of peanut allergies.¹¹⁷ In the early 2000s, the panic around food allergies climaxed, fueled by media coverage that analogized the risk posed by peanuts to “‘bombs’ in social spaces.”¹¹⁸ During those decades, physician-scientists raising children with food allergies and parent-activists initiated awareness campaigns, pushed for more research, and engaged in political campaigns around the issue—efforts that continue to this day.¹¹⁹ The Food Allergy Safety, Treatment, Education, and Research Act (FASTER Act) of 2021, which added sesame to the list of nine allergens manufacturers must identify on food labels, represents a recent success for the movement.¹²⁰

Third-party accommodations are the primary way to accommodate people with food allergies. They typically prohibit allergenic foods in environments where allergic people can encounter them (a prohibition or avoidance of a certain activity) or require individuals to wash their hands and clean surfaces that come into contact with allergenic foods (a proactive act). These accommodations cannot be successful by only engaging the second party (the employer, school administrator, or owner of the place of public accommodation); rather, they require cooperation and direct action by third parties.

Over the years, legal discussions around accommodating food allergies primarily appeared in three areas of life: education, air travel, and the workplace. This Part centers on these three contexts to show how, despite various circumstances and some backlash, each context has moved to approve third-party accommodations through case law, legislation, regulation, and extralegal norms.

A. Food Allergies in Schools

When discussing food allergies, many might initially consider children’s school safety. It is estimated that 8 percent of American children have a food allergy and that there are at least one or two students with various food allergies in an average classroom.¹²¹ Although food allergies affect all racial groups, white, middle and upper-class mothers most often drive food allergy activism, aiming to create “a normal childhood against tough odds” and a “good life” for their children.¹²² In the mid-1990s, spurred by the increased food-allergy awareness and a newfound interest in disability rights inspired by the new ADA, parents of allergic children across the country began using the Act to seek school accommodations for their children.¹²³

By instructing courts to interpret the definition of disability broadly,¹²⁴ the 2008 ADA Amendment Act (ADAAA), recognized food allergy as a disability under the ADA.¹²⁵ Section 504 of the Rehabilitation Act, which originally included the ADA’s definition of disability, is the main statutory framework schools use to accommodate students with food allergies.¹²⁶ In 1976, the Department of Health, Education, and Welfare’s (HEW) Office of Civil Rights (OCR) promulgated model regulations to implement Section 504.¹²⁷ These regulations apply the antidiscrimination mandate to preschool, elementary, and secondary educational institutions that receive federal financial assistance. ¹²⁸ Free Appropriate Public Education (FAPE) is the legal standard under Section 504 that affords disabled students specially designed instruction,¹²⁹ which requires schools to provide special education, related aids, and services to meet the student’s individual educational needs as adequately as the needs of nondisabled students.¹³⁰ The Section 504 FAPE requirement involves the development of an individualized education plan, referred to as a “Section 504 Plan”—a document detailing the accommodations for the individual student¹³¹—and could thus include accommodations for a food allergy.¹³²

As the prevalence and awareness of food allergies increased, schools began implementing policies aimed at minimizing exposure to allergens to accommodate students with allergies.¹³³ Before the Department of Education established any recommendations for appropriate accommodations, the Centers for Disease Control and Prevention (CDC) promulgated nonbinding food allergy accommodation guidelines to schools in 2013.¹³⁴ The CDC encourages schools to “identify children with a history of food allergies and develop or obtain plans to manage their allergies,”¹³⁵ which can be done through Section 504 plans.¹³⁶ Without binding regulations, policies vary from school to school,¹³⁷ with 67% of U.S. schools making at least one accommodation for students with allergies.¹³⁸ In 2024, the Department of Education’s Office of Civil Rights issued guidance aimed at protecting school children with food allergies under Section 504, advising schools to “designat[e] allergy-free eating areas” and “prohibit[] certain foods in classrooms and/or school buildings.”¹³⁹

Schools commonly accommodate student allergies through allergen-free lunch tables, a handwashing requirement, an allergen-free classroom, and self-carry epinephrine (EpiPen).¹⁴⁰ Though some of those accommodations are more individualized and do not affect third parties, allergen-free environments and washing hands are third-party accommodations.¹⁴¹ Commentators criticize school accommodations—allergen-free lunch tables and EpiPens—for increasing isolation and stigma that could lead to violence and bullying.¹⁴² Alternately, disability studies scholar Michael Gill celebrates communal handwashing, a third-party accommodation, as “enacting an ethic of accommodations that destabilizes the boundaries around allergies, disability, safety, risk, and inclusion.”¹⁴³ Normalizing handwashing to accommodate food allergies also evokes the concept of “access intimacy” coined by disability studies scholar Mia Mingus.¹⁴⁴ In her words, this act of inclusion means “knowing that someone else is willing to be with me in the never-ending and ever-changing daily obstacle course that is navigating an inaccessible world.”¹⁴⁵

In contrast, the second type of third-party accommodation—creating an allergy-free classroom through allergen bans—has proven more controversial. At times, parents of nonallergic children object to bans on certain allergenic foods (most commonly peanuts), viewing the bans as an unreasonable infringement on their children’s rights as a majority.¹⁴⁶ Despite this backlash, schools generally accept and practice food-ban accommodations. Many schools implement classroom or school-wide policies banning nuts;¹⁴⁷ these bans are the third most-used accommodation for food allergies.¹⁴⁸ Indeed, a settlement struck between the U.S. Department of Justice and the Massachusetts Young Shakespeare Players East Theater demonstrates the acceptance of a food ban as a third-party accommodation.¹⁴⁹ After initially refusing to admit fourteen-year-old Mason due to his peanut allergy, the progressive theater company agreed to implement a peanut- and tree-nut-free policy to allow him to participate in its theater program.¹⁵⁰ In another case, the Massachusetts Bureau of Special Education Appeals ordered a school to enact a policy prohibiting all peanut and tree nut products to accommodate a seven-year-old student with severe allergies.¹⁵¹ This occurred after the student was excluded from “educational experience[s]”¹⁵² and after other lenient policies—namely a designated peanut- and tree-nut-free table in the classroom or requests from parents to notify whether they’re sending allergen products in their child’s lunch—failed to keep the student safe.¹⁵³

As the next Section demonstrates, accommodating airline travelers with peanut allergies presents another arena that clearly demonstrates the law and political economy of food allergy and the power of self-regulation.

B. Peanuts in the Air

Though peanuts served as a decades-long symbol of air travel, airlines today either exclusively offer allergy-friendly alternatives, such as pretzels, or simply do not serve free food at all.¹⁵⁴ During the late 1970s air travel deregulation, Southwest Airlines branded itself the “peanut airline” for low-cost travel (“fly for peanuts!”), serving the popular snack aboard its airplanes instead of a full meal; other airlines followed suit.¹⁵⁵

While one may imagine that top-down regulation caused this policy change, it in fact stemmed from airlines’ self-regulation, responding to fears that allergic reactions would expose them to tort liability.

In 1998, amid public panic around food allergies, the Department of Transportation (DOT) proposed an amendment to the Air Carrier Access Act (ACAA), a federal law prohibiting commercial airlines from discriminating against passengers with disabilities.¹⁵⁶ The Act would have required ten major commercial airlines to provide allergic travelers with “peanut-free zones.”¹⁵⁷

Unsurprisingly, the Air Transportation Association, the trade organization representing major airlines, met this proposal with great hostility and turned to Congress.¹⁵⁸ Ultimately, DOT withdrew its proposal after Senators Paul Coverdell (R-GA) and Richard Shelby (R-AL), both representing states known for peanut farms, threatened to prohibit DOT from using funds to restrict peanut distribution or create “peanut-free zones” on commercial flights through the ACAA.¹⁵⁹

Other than the obvious financial and political interests driving hostility toward the amendment, opponents raised reverse discrimination claims. Like parents of nonallergic students in schools, opponents argued the amendment “ignor[ed] the rights of the overwhelming majority of the traveling public who are not allergic to peanuts”¹⁶⁰ and posed a slippery slope because “establishing such a precedent might needlessly establish such ‘peanut-free zones’ for all forms of public transportation.”¹⁶¹

The opposition also alleged a lack of scientific literature reporting passengers experiencing allergic reactions from airborne peanut allergens aboard commercial flights.¹⁶² This argument succeeded despite the then-recent publication of a scientific journal article featuring testimony from more than forty passengers reporting allergic reactions while flying.¹⁶³ Such evidence continues to accumulate. In 2015, a passenger sued an airline after experiencing a severe allergic reaction to peanuts—which caused a two-day-long, intensive care hospitalization—on a flight to Chicago.¹⁶⁴

This was not the last time political economy played a crucial role in hindering regulatory initiatives related to peanuts on commercial flights. In 2010, DOT drafted new standards called “Enhancing Airline Passengers Protections.” Among the proposed standards was one to allow “greater access to air travel for the significant number of individuals with peanut allergies.”¹⁶⁵ Although most of the standard’s components became policy, the portions accommodating peanut allergies did not.¹⁶⁶ A decade later, airlines once again relied on “scientific uncertainty” regarding the severity of airborne peanut reactions to bury another DOT accommodation initiative for allergic air passengers.¹⁶⁷

To this day, the severity of airborne or skin exposure to peanuts or tree nuts remain a contentious issue in scientific literature. While there is no documented case of fatality from airborne peanut exposure alone, such exposure can cause symptoms.¹⁶⁸ A 2023 study estimated that allergic reactions account for 2% to 4% of all in-flight medical emergencies and 5.5% of medical events in passengers eighteen years and under.¹⁶⁹

Despite failed efforts to formally regulate the issue, commercial flights now rarely serve peanuts; major and smaller airlines, including the self-proclaimed “peanut airline” Southwest, shifted to serve other, less-alarming packaged snacks.¹⁷⁰ Due to passenger complaints and DOT intervention, most airlines allow preboarding for passengers with peanut allergies so that their parties can wipe down their seats and tray tables before takeoff.¹⁷¹ Some airlines announce midflight that someone onboard possesses peanut allergies and ask passengers to refrain from consuming peanuts and peanut-based products, a softened adoption of a third-party accommodation since no sanctions exist for those passengers who refuse.¹⁷² Other airlines simply remind passengers that bringing peanuts into the cabin could be dangerous to passengers with allergies, but, again, do not oblige passengers to refrain from peanut consumption.¹⁷³ Because many airlines adopted third-party accommodations or more classic disability accommodations for allergic passengers, the current landscape allows consumers to choose the safest airline for them. Therefore, informal self-regulation arising from the fear of tort liability significantly limited (but did not fully eradicate) peanut presence on airplanes.¹⁷⁴

Yet airlines embracing informal self-regulation to avoid litigation from, and potential liability for, passengers with allergies also disadvantaged some of these same passengers. Families have reported being escorted off planes when airline staff determined it would be best for them not to fly “based on the severity of the allergy and the need to divert the airline if anyone were eating nuts.”¹⁷⁵ Airlines repeatedly removed passengers from planes after they asked whether nuts would be served or requested to preboard to disinfect their seats.¹⁷⁶ This is the cost of informal self-regulation as opposed to formalizing a rule through regulation.

Allergic passengers’ failed attempts to sue airlines for not asking other passengers to refrain from consuming peanut-based products (a third-party accommodation) demonstrate another limitation of self-regulation. Federal courts in California and New York granted airlines’ requests for summary judgment based on express preemption provisions in the Airline Deregulation Act,¹⁷⁷ which prohibits states from “enact[ing] or enforc[ing] a law . . . related to a price, route, or service of an air carrier.”¹⁷⁸ Here, no claim could be brought against the airlines because courts considered the allergy announcement part of a carrier’s service.¹⁷⁹

C. Food Allergies at the Workplace

Food allergies also manifest in the workplace.¹⁸⁰ In multiple cases, employees have sued their employers for failing to accommodate their food allergies. Some employees, like Emily Kysel, succeeded. Kysel, an employee of the City of Indianapolis with a severe allergy to paprika, claimed that the city did not accommodate her service dog despite its ability to alert her to allergens because another employee had an allergy to dogs.¹⁸¹ This case, a clash between two competing access needs,¹⁸² was eventually settled, and the city paid Kysel $85,000.¹⁸³ Less successful were other plaintiffs, like a restaurant inspector (an “environmental representative”) for the St. Louis Department of Public Health with a severe shellfish allergy who suffered multiple allergic reactions.¹⁸⁴ The court found he did not disclose his disability to his employer or request any accommodations before resigning.¹⁸⁵ These cases, however, are examples of classic disability accommodations, wherein the burden to accommodate falls on the employer (the second party) and not on coworkers, as in the case of third-party accommodations.

Nevertheless, a 2022 case in Louisiana opened the door to recognizing third-party accommodations for food allergies in the workplace. Plaintiff Myrell Bergeron was a nurse technician with severe allergies to seafood; she worked for a clinic later acquired by a healthcare company.¹⁸⁶ Before the purchase, the clinic enforced an on-site seafood ban, a third-party accommodation.¹⁸⁷ Yet after the acquisition, the new management shifted to a classic type of accommodation, only agreeing to accommodate the plaintiff through a “seafood present” sign alerting her when seafood was in the workplace.¹⁸⁸ Consequently, and after she was told other employees “didn’t give a damn . . . [t]hey were going to eat their seafood,” the plaintiff suffered a series of allergic reactions and received a note from her doctor that she must work in a seafood-free environment.¹⁸⁹ The plaintiff’s supervisor ridiculed her allergy and allegedly played a role in her eventual termination. She then sued for failure to accommodate and for retaliation. The employer-defendant moved for summary judgment, arguing that the accommodation implemented (the sign) was reasonable because the ADA does not guarantee a plaintiff their preferred accommodation, only one sufficient to meet their job-related needs.¹⁹⁰

The court denied summary judgment and found there was a genuine dispute of material fact as to whether the accommodation granted was reasonable considering the plaintiff’s multiple allergic reactions as a possible result of the defendant’s refusal to amend its accommodation.¹⁹¹ In other words, similar to what happened with smoking at work, the court acknowledged the possibility that classic accommodations cannot sufficiently accommodate a person’s food allergies. A reasonable jury could find a third-party accommodation that bans allergenic food in the workplace an appropriate and reasonable remedy.

Whether in schools, air travel, or the workplace, we can conclude from the multiple contexts in which accommodations for food allergies appear that various parties accept and recognize the concept of third-party accommodation. Despite the lack of formal regulation preventing schools, airlines, or employers from prohibiting other students, passengers, or employees from bringing allergenic foods into the environment, informal self-regulation plays an important role in allowing this third-party accommodation (at least part of the time). It may well be that greater awareness and even public panic around food allergies helped shape this acceptance and willingness to ask others to forfeit some of their freedom (albeit not without protest) to accommodate people with food allergies.

IV. Masking as Third-Party Accommodations

Masks could easily be viewed as the obvious, most visible symbol of the COVID-19 pandemic.¹⁹² On April 3, 2020, a month into the pandemic, the CDC recommended that every person over two years old wear face coverings in public unless their condition exempted them from doing so.¹⁹³ During his first days in office, President Biden signed executive orders mandating masks on federal property and during interstate travel.¹⁹⁴ Masking, however, became a clear illustration of how prosocial health behavior was politicized throughout the pandemic.¹⁹⁵ This politicization created a view among many that masks, despite the mounting evidence of their effectiveness in mitigating the spread of COVID-19, ¹⁹⁶ are unnecessary, ineffective, and even a way to restrict personal freedom and increase social control¹⁹⁷. The decision not to mask in public hurt all members of society but disproportionately affected immunocompromised disabled people. According to the CDC, the “immune response to COVID-19 vaccination may not be as strong [for immunocompromised individuals] as in people who are not immunocompromised.”¹⁹⁸ Disabled individuals are also more susceptible to major health complications from exposure to COVID-19 due to underlying medical conditions.¹⁹⁹ Therefore, when it comes to disabled, immunocompromised individuals, vaccine availability and effectiveness cannot replace the need to use masks as a mitigation measure.

By fall 2021, ten Republican-led states—Arizona, Arkansas, Florida, Georgia, Iowa, South Carolina, Oklahoma, Texas, Utah, and Virginia—issued executive orders or enacted laws prohibiting mask mandates in schools and universities.²⁰⁰ These bans devastated immunocompromised people with disabilities, students, teachers, staff, and professors alike.²⁰¹ These politically motivated state laws undermine decades of efforts to ensure the inclusion of disabled individuals in schools and higher education. Third-party accommodation in the form of masking provides a remedy.

Advocates could frame masking as an ADA-approved reasonable modification to these mask ban policies because masking is “reasonable on its face,” meaning it is feasible for the employer to implement, considering the ubiquity of masks and their low price.²⁰² The second-party defendant²⁰³ cannot argue masking poses an undue burden because it entails little or no financial cost.²⁰⁴ It should be emphasized that masking as a reasonable third-party accommodation does not entail implementing a universal mask mandate. Rather it entails an individualized remedy, such as an immunocompromised professor requiring all students coming to office hours—where they cannot keep social distance—to mask when entering the room, or an immunocompromised student asking those sitting around him in class to mask during the lesson (specifically where the students may rotate their seats between classes).

Relying on this idea, in late 2021, disability rights organizations and parents of disabled school children in states with mask mandate bans turned to federal courts to enforce the concept that masking could be considered a reasonable disability accommodation under the ADA and Section 504.²⁰⁵ These suits resulted in a circuit split.

A. Court Decisions Approving Masking as Third-Party Accommodations

The first major victory for disabled, immunocompromised children, their parents, and disability rights organizations came from the Eighth Circuit in January 2022. The Iowa state legislature passed a new law, Section 280.31, prohibiting schools and school districts from requiring masks.²⁰⁶ A group of parents of disabled children and The Arc, a disability rights organization, successfully enjoined the law at the district court and later at the Eighth Circuit. In Arc of Iowa v. Reynolds, the Eighth Circuit found the plaintiffs suffered injuries likely to be redressed by an injunction.²⁰⁷ Specifically, the court noted that some of the schools already had mask requirements in place before the law’s passage, and enjoining Section 280.31 would lead these schools to return to such requirements.²⁰⁸ The Eighth Circuit equated masking to wheelchair ramps, arguably the most intuitive and symbolic type of disability accommodation.²⁰⁹ However, the Eighth Circuit approved a more limited injunction than the district court, applying only to plaintiffs’ schools and districts instead of all school districts in the state.²¹⁰

The Western District of Virginia delivered another win for students with disabilities in March 2022, two months after Arc of Iowa. In Seaman v. Virginia, parents of disabled children filed to enjoin Executive Order 2, which allowed parents to opt their children out of masking requirements in Virginia schools even if the school mandated masking.²¹¹ The district court determined that masking was a necessary precaution for disabled students, finding persuasive the plaintiffs’ evidence that optional masking made returning to the classroom unsafe (after attending school virtually) and that other risk mitigation strategies could not substitute for masking (the exact opposite conclusion the Fifth Circuit would come to just four months later in E.T. v. Paxton).²¹² Significantly, the court cited a nonsmoking ADA case from the 1990s and specifically stated that the possibility of allowing third-party accommodations would limit “third parties’ freedom to act in [disabled people’s] presence.”²¹³ The court therefore enjoined the state from enforcing the executive order against disabled students asking for masking at their schools, concluding that the schools must consider whether their request was a reasonable modification.²¹⁴ Here again, similar to Arc of Iowa, the court limited the injunction to the plaintiffs and their schools, not all state school districts.²¹⁵

After the Commonwealth of Virginia appealed the decision to the Fourth Circuit,²¹⁶ the parties reached a settlement that required Virginia to send a letter to each plaintiff’s district superintendent directing them to allow reasonable masking accommodations as determined through an interactive process between the students’ parents and the school.²¹⁷ Interestingly, the settlement also called on the schools to “protect the state-law rights of parents who have decided under S.B. 739 and E.O. 2 that their children will not wear a mask.”²¹⁸ It declared that schools should take reasonable steps to accommodate nonmasking students, such as offering them an alternative classroom or seat assignment.²¹⁹

In December 2022, the Eleventh Circuit released an opinion taking seriously requests for a third-party accommodation to allow for students with disabilities to attend school.²²⁰ In L.E. v. Superintendent of Cobb County School District, parents of students with respiratory disabilities filed a lawsuit and motion for a temporary restraining order against Cobb County School District.²²¹ The district initially promised to abide by CDC guidelines and maintain existing safety procedures for the 2021–2022 school year.²²² However, after students elected to attend in-person classes, the school district ended many of its safeguards, including mandatory masking.²²³ Outraged by the district’s sudden reversal, the plaintiffs removed their immunocompromised children from in-person schooling and alleged that the school district failed to provide “reasonable accommodations for access to in-person schooling,” meaning the student “would suffer irreparable harm.”²²⁴

The Northern District of Georgia initially denied the plaintiff-appellants’ motion for a temporary restraining order and preliminary injunction.²²⁵ The school district argued plaintiff-appellants’ injunction was moot because “CDC COVID-19 guidelines no longer recommend[ed] mandatory masking, and the Students argued for a mask mandate at the motions hearing.”²²⁶ The Eleventh Circuit, however, identified a live controversy because the students did not ask for mandatory masking alone; rather, the students asked that the school district “‘strictly comply with each and every one of the CDC’s recommendations,’” including guidance on how to accommodate students with disabilities.²²⁷ Accordingly, the Eleventh Circuit found that the district court abused its discretion when it misconstrued “the scope of the ‘service, program or activity’ the Students [sought]” by reframing the students’ argument as a right to education generally, rather than a right to in-person education.²²⁸

Emphasizing disabled students’ right to attend in-person schooling (not the virtual alternative), the Eleventh Circuit evoked the Supreme Court’s holding in Olmstead v. L.C. ex rel. Zimring that unjustified isolation is a form of disability discrimination.²²⁹ Moreover, the Eleventh Circuit referred to the disparate impact theory of discrimination whereby “facially neutral, uniformly applied policies can give rise to discrimination claims without evidence of disparate treatment.”²³⁰ This can occur when policies refuse to allow individual masking as an accommodation. Accordingly, when reversing and remanding the case, the Eleventh Circuit ordered the lower court to consider disparate impact when considering the students’ claims.²³¹ Although the Eleventh Circuit did not differentiate between universal masking and third-party accommodations, such differentiation would likely be discussed on remand or in the parties’ negotiations.

B. Court Decisions Prohibiting Masking as Third-Party Accommodations

Disabled, immunocompromised students also lost bids for masking accommodations. In November 2021, disabled students and Disability Rights Texas received an injunction from the Western District Court of Texas against Governor Abbott’s Executive Order GA-38, which forbade school districts and governmental entities from mandating masking.²³² This win, however, was short-lived. In December 2021, the Fifth Circuit imposed a stay pending the appeal of the injunction,²³³ asserting that the plaintiffs did not show any concrete, actual, or imminent injury caused by GA-38’s enforcement.²³⁴ Because the plaintiffs’ increased infection claims did not satisfy the “actual or imminent” requirement for an injury arising from GA-38, the injury appeared speculative or tentative.²³⁵ In July 2022, the Fifth Circuit in E.T. v. Paxton reversed the district court’s injunction.²³⁶ Repeating its view that disabled students faced speculative harm, the Fifth Circuit emphasized potential alternative precautions such as “vaccines, plexiglass, hand sanitizer, social distancing, and more,” to protect students,²³⁷ ignoring evidence that these other measures work best in conjunction with masking.²³⁸

The Paxton Fifth Circuit decision from December 2021 served as the basis for denying an injunction request from a group of Pennsylvania parents in the January 2022 case Doe 1 v. Upper Saint Clair School District.²³⁹ In this case, the Western District Court of Pennsylvania denied an injunction against a school board’s optional masking policy, positively citing E.T. v. Paxton and agreeing that the “binary choice . . . [to] stay home or catch COVID-19 . . . is a false one” since alternative measures can protect students.²⁴⁰ The plaintiffs requested a universal masking policy, not a third-party accommodation that only applies to those coming in contact with the disabled student.²⁴¹ The court found this remedy, presented as an accommodation, unreasonable and unprecedented²⁴² because the school district adopted other precautionary measures (physical distancing, cleaning and ventilation, contact tracing, testing, and vaccination)²⁴³ and the reasonable accommodations doctrine does not require defendants to implement the plaintiffs’ preferred or requested accommodation provided they offer meaningful access to education.²⁴⁴ The Pennsylvania court stated that neither it nor the plaintiffs could find even “a single case” in which schools required third parties to use protective gear to accommodate a disabled student outside of the COVID-19 context.²⁴⁵

Both the plaintiffs’ proposed remedy and the court’s focus on what could constitute a reasonable third-party accommodation are flawed. As explained earlier, a universal policy cannot be considered a reasonable accommodation because it is not individualized.²⁴⁶ Therefore, instead of framing masking as a blanket policy, it would have been more effective for the plaintiffs to request masking as a third-party accommodation, so that only those coming into contact with the students would need to wear masks.

The court’s comment that it could not find precedent implementing such a remedy is likewise problematic. While other “communicable diseases” exist outside COVID-19, none in recent decades have reached pandemic proportions with a serious, significant death toll.²⁴⁷ In addition, the court misstated masking accommodations’ novelty, incorrectly surmising that using “a mask or any other kind of personal protective equipment” rendered the remedy unprecedented.

Is mandating the use of protective gear any different from mandating a no-smoking policy or forbidding others from bringing allergenic foods into an institution? Though no-smoking policies and bans on allergenic foods do not technically involve “personal protective equipment,” they have the same effect on third-party behaviors and liberties. Disability case law offers an open and inclusive definition of reasonable accommodations. The Saint Clair court’s narrow fixation on gear and equipment flies in the face of decades-old third-party accommodations in other contexts.

Accommodation efforts in South Carolina also echoed Paxton. In September 2021, a court in South Carolina handed down the first federal decision challenging a mask ban. In Disability Rights South Carolina v. McMaster, local disability rights organizations and parents of disabled students petitioned for declaratory and injunctive relief to stop enforcement of Proviso 1.108, the state’s law that “bars schools and localities from requiring masking in schools.”²⁴⁸ Here, the plaintiffs specifically asked for masking as an individualized third-party accommodation, not a universal masking mandate for all students and school staff.²⁴⁹ The district court sympathized with this argument, concluding that a blanket masking prohibition would deny disabled students “meaningful access to in-person education, programs, services, and activities.”²⁵⁰ It even analogized this proscription to denying absentee voting programs,²⁵¹ an act the Fourth Circuit deemed illegal in a previous case.²⁵² The court went further, equating mask wearing to ramps—the classic accommodation providing access to physically disabled people—offering other courts a similar framework to consider masking.²⁵³ The district court also held that the harm from contracting COVID posed an “irreparable harm in the absence of injunctive relief.”²⁵⁴ It seemed that proposing individualized third-party accommodations, and thereby granting schools flexibility in dealing with disabled students instead of a universal masking policy, presented a winning strategy for plaintiffs.²⁵⁵

This holding and reasoning underwent a dramatic change upon appeal to the Fourth Circuit in January 2022. Like the Fifth Circuit in Paxton, the Fourth Circuit denied the appellees’ standing,²⁵⁶ expressing skepticism that enforcing the ban would create a “credible threat” to disabled students.²⁵⁷ In addition, the Fourth Circuit did not see how the harm, deemed speculative, could be traced to Governor McMaster, who “ha[d] no role in enforcing the law at issue.”²⁵⁸ Finally, because the appellees’ children attended schools that chose not to implement mask mandates, the Fourth Circuit found that an injunction would not affect appellees’ children.²⁵⁹

The decisions by the South Carolina District Court and the Fourth Circuit present striking differences. Though the district court engaged with substantial issues relating to students’ health and rights under disability law, the Fourth Circuit used procedural rules to obstruct student claims without even discussing issues of equal access to public schools.²⁶⁰

The legal battle for masking as accommodations in Tennessee was unusually convoluted; ultimately, the Sixth Circuit vacated the injunction on the state law banning mask requirements in schools.²⁶¹ Though the governor initially enacted the ban as an executive order, two district courts subsequently enjoined its implementation, prompting the legislature to later replace the order with a state law.²⁶² A third district court enjoined this law, a move which survived a first appeal to the Sixth Circuit but was vacated on a second appeal.²⁶³ All three Tennessee district court decisions that enjoined the ban deviated from other courts’ narrower support for individual third-party accommodations, opting instead to implicitly support universal masking mandates. The plaintiffs’ choice to pursue this remedy arguably played a role in the Sixth Circuit’s final decision to vacate the injunction.

In September 2021, the Western District Court of Tennessee enjoined Executive Order 84, which allowed school parents to opt out of mask requirements in schools.²⁶⁴ The court specifically addressed the burden on third parties, accepting the plaintiffs’ argument that mandates which burdened a large group of schoolchildren, like vaccinations and school uniforms, already existed in other areas.²⁶⁵ While not necessarily disability accommodations, these policies “are requirements that schools have implemented that require children to act affirmatively.”²⁶⁶ A month later, the Eastern District Court of Tennessee reached the same conclusion and enjoined Executive Order 84.²⁶⁷ Here again, the court compared masking mandates to wheelchair ramps,²⁶⁸ concluding that the executive order created a “catch-22” by preventing the school district from offering a mask mandate as a disability accommodation according to Section 504 and the ADA and was thus preempted.²⁶⁹ The state argued that because the Sixth Circuit previously found a no-fragrance accommodation for a person with MCS unreasonable, the court should reject a universal masking request.²⁷⁰ The court denied the argument by minimizing MCS conditions, a trend within the courts explore later in this Article.²⁷¹

In December 2021, the District Court of the Middle District of Tennessee enjoined a Tennessee law enacted in place of Executive Order 84.²⁷² The new law, Title 14, required that “each individual school in this state must clear a number of significant hurdles before instituting (or re-instituting) a school-wide mask mandate.”²⁷³ The court criticized this language as stricter than Executive Order 84.²⁷⁴

Title 14 directly addresses masking as a disability accommodation. To get such an accommodation, a student’s parents need to submit a written request to the school’s principal, who possesses the discretion to accept or deny it.²⁷⁵ If the principal approves the request, the school would require other students to mask if they are seated for more than fifteen minutes within six feet of the disabled student.²⁷⁶ The court stated that this requirement impeded the school’s discretion to best accommodate the students in situations outside the classroom (like in the hallways or the cafeteria).²⁷⁷ By impeding the school’s discretion, the law does not allow for the individualized inquiry requirement.²⁷⁸ The court thus accepted the plaintiffs’ desire to return “to the status quo as it existed prior to the enactment of Title 14,” reestablishing local school districts’ authority to implement masking.²⁷⁹ “This would allow parents . . . to engage in the interactive process with their local school boards.”²⁸⁰

In May 2022, the Sixth Circuit denied an appeal of the Tennessee district court’s decision and left the injunction intact.²⁸¹ Yet six months later, in November 2022, the Sixth Circuit vacated the injunction for lack of standing.²⁸² The Sixth Circuit found that the plaintiffs failed to prove an injury-in-fact because Title 14 had a reasonable accommodation provision and none of the school children contracted COVID as a consequence of not having universal masking.²⁸³ Relying on Paxton and McMaster, the court noted that there could have been other reasonable accommodations under the ADA apart from universal masking.²⁸⁴ In this regard, the Sixth Circuit stated: “There is reason to think that a more tailored accommodation—perhaps even the six-foot bubble accommodation contemplated by the Act—would be sufficient to comply with the ADA.”²⁸⁵ Although this decision might have been driven by the politics of masking, arguing for an individualized, or in the court’s words “more tailored,” third-party accommodation as the appropriate remedy in the case could have facilitated a different decision.

C. Masking Accommodations in Schools—A Survey of the Status Quo and Future Challenges

Five federal courts (district courts in Virginia, Pennsylvania, Iowa, the Eighth Circuit, and the Eleventh Circuit) have upheld masking as an accommodation in schools.²⁸⁶ Four of them allowed masking as an individualized third-party accommodations,²⁸⁷ requiring those who encounter a disabled, immunocompromised individual to wear masks in their presence.²⁸⁸ This solution allows school districts to exercise flexibility, discretion, and creativity when dealing with vulnerable individuals, in contrast to accommodations that require a universal masking policy (an approach taken by Tennessee district courts and a Pennsylvania district court). Nevertheless, one could imagine a situation where masking as a third-party accommodation resembles a de facto universal masking policy, for instance in a school with many students with disabilities. Even in that situation, third-party accommodations fit the individualization requirement for reasonable accommodations better than a blanket-policy remedy.

Six federal courts—district courts in Florida,²⁸⁹ Pennsylvania, and Georgia and the Fifth, Fourth, and Sixth Circuits—have rejected masking as a reasonable disability accommodation.²⁹⁰ There is little doubt that masking’s politicization played a role in these court decisions.²⁹¹ Republicans’ rejections of masking derived from what scholars called the “focus on freedom and rugged individualism (as in frontier culture) or toxic masculinity.”²⁹²

When the Department of Health and Human Services declared an end to the COVID-19 public health emergency in May 2023, healthcare facilities became the next battleground for masking accommodations.²⁹³ Though the CDC recommends masking in healthcare facilities,²⁹⁴ most states do not require these facilities to follow the CDC guidance.²⁹⁵ Therefore, many clinicians and staff at hospitals, clinics, and nursing homes nationwide stopped regularly wearing masks. Thus, a conflict arises when immunocompromised, disabled patients ask for third-party masking accommodations that implicate the providers and their staff.²⁹⁶ Due to masking’s politicization, such requests can create tension in the doctor-patient relationship.²⁹⁷

Two examples illustrate this tension. In May 2023, Mass General Brigham in Boston announced an end to its universal masking policy.²⁹⁸ The hospital’s subsequent refusal to respect masking accommodations—conveyed by an official announcement that a patient “cannot ask staff members to wear a mask, because our policies no longer require it”—angered disability rights activists.²⁹⁹ As a result, the hospital removed the language from its website and released a statement clarifying that “patients can ask, but providers determine when and if masking in a particular situation is clinically necessary.”³⁰⁰ This problem stretches beyond Massachusetts. In mid-2023, immunocompromised patients used social media to report physician refusals to mask despite patient requests, leaving disabled patients without access to healthcare.³⁰¹ It remains to be seen whether and how the courts will handle this new tension.

V. No-Fragrance Policies as Third-Party Accommodations

A. The Elusive Nature of Fragrance and Chemical Sensitivity Conditions

Fragrance and chemical sensitivity is an umbrella term for a number of medical conditions³⁰² characterized by adverse health effects from exposure to environmental chemicals often found in commonly used fragranced consumer products.³⁰³ However, multiple chemical sensitivity (MCS), also known as environmental illness (EI), receives the most attention in academic literature.³⁰⁴ Therefore, although the following discussion refers to peoples’ experience with MCS, most of their experiences also apply to those living with other conditions classified as fragrance sensitivity.

MCS, first articulated in medical literature by American allergist Theron Randolph in 1952,³⁰⁵ is a condition in which exposure to chemicals, toxins, and odors causes a range of symptoms, including nausea, dizziness, headaches, chest and throat pain, respiratory difficulties, extreme fatigue, and other cognitive and psychological reactions.³⁰⁶ People with MCS experience hypersensitivity to toxins in commonly used products, such as perfumes, cleaning supplies, detergents, vehicle emissions, pesticides, plastics, and carpets.³⁰⁷ The European Commission’s Health and Food Safety Department, the EU policymaker with jurisdiction over these matters, estimates that 3.2 to 4.2 percent of female eczema patients are “allergic to fragrances from perfumes present in various cosmetic products.”³⁰⁸ Another estimate found forty-two million individuals nationwide have some sort of EI, with the condition’s prevalence increasing by 300 percent in the last decade.³⁰⁹

Unlike people with food allergies, people with MCS do not always exhibit immunoglobulin E (IgE), which can be a direct biological sign of an allergic reaction.³¹⁰ Still, since scientists only discovered IgE for food allergies in the mid-1960s after years of controversy over the condition,³¹¹ activists and patients hope a reliable biomarker or a genetic predisposition for MCS will be discovered.³¹² MCS and other types of fragrance sensitivity defy the traditional medical paradigm; no drug or surgical intervention currently cures or treats these conditions.³¹³ Patients’ only “treatment” option remains avoiding offending substances.³¹⁴ In that sense, MCS and fragrance sensitivity perfectly exemplify the contemporary view of disability as a complex impairment-environment interaction known as the bio-psycho-social model.³¹⁵ As environmental justice scholar Stacy Alaimo argues, “MCS requires that we rethink the boundaries of our persons as well as our notions of safety and normalcy” and thus calls for an alliance between disability rights movements and antitoxin and environmental justice movements.³¹⁶

MCS can severely affect a person’s life. In 2022, a 51-year-old Canadian woman living with MCS applied for medical assistance in dying (which expanded in Canada through controversial legislation in 2021) after an extended, and ultimately failed, effort to find accessible and affordable housing in Toronto capable of accommodating her MCS symptoms.³¹⁷ This story is extreme, yet many Americans living with MCS also experience great difficulty finding nontoxic housing and work environments.³¹⁸ Along with potential housing and job insecurity, people living with MCS must exercise caution when interacting with others and can become very socially isolated.³¹⁹

Due to its elusive nature, high variation in reactions and severity among patients, and the lack of a formal medical test, MCS has been difficult to diagnose.³²⁰ In this sense, MCS and other fragrance sensitivity conditions join the ranks of conditions like fibromyalgia, chronic fatigue syndrome, and Gulf War syndrome, which disability studies scholar Anna Mollow calls “undocumented disabilities.”³²¹ These types of “invisible” or less apparent disabilities³²² have long been contested in medical and scientific circles,³²³ state and governmental bodies,³²⁴ and the general public.³²⁵ Those reporting symptoms of MCS, more often women than men,³²⁶ face suspicion that they are malingering, exaggerating their symptoms, being hysterical, or having a mere psychological problem.³²⁷ People with MCS confront a dilemma: If they describe their suffering, they risk being dismissed as “self-indulgent attention seekers.”³²⁸ Yet if they withhold information and do not complain, others assume they “can’t really be that sick—and thus [others] see no need to sacrifice their scented laundry detergent or their favorite perfume.”³²⁹

B. Recognition of MCS as Disability in the Courts

In early cases under the original 1990 ADA, claims involving MCS fared poorly. An early study found that courts granted or affirmed defendant motions for summary judgment in fourteen of seventeen ADA cases involving MCS between 1995 and 2003.³³⁰ Another study of cases involving MCS prior to the 2008 ADAAA reveals that courts questioned whether the plaintiff lied about their condition’s severity, portraying plaintiffs as malingers committing “disability cons.”³³¹ For example, in the 2007 case McDonald v. Potter—involving a USPS employee living with vascular rhinitis, a fragrance sensitivity that caused her debilitating migraines³³²—a district court in Tennessee noted that the plaintiff had cats, went shopping and out to restaurants, and previously used house-cleaning supplies that later affected her developed sensitivity.³³³ This inquiry ignores the fluid nature of disability—specifically chronic illnesses—as prone to changes and disruptions.³³⁴ The plaintiff herself mentioned that she became “increasingly more sensitive to things” over time but consistently possessed some form of the condition through the years.³³⁵ The court’s statements highlight the dilemma that disabled plaintiffs, who often need to downplay their abilities and play into “the sick role” to receive legal recognition as a disabled person worthy of protection, face.³³⁶ This inquiry suggests that plaintiffs with fragrance sensitivities must live an isolated life and remain unable to take care of themselves; otherwise, they will be seen as untrustworthy and undeserving of legal protection.

Since the ADAAA’s enactment, the status of MCS and fragrance sensitivity as a disability under the ADA has not generally been contested.³³⁷ Recall that the ADAAA was passed to combat the backlash against the ADA.³³⁸ This is because the ADAAA instructed courts to construe the definition of disability “in favor of broad coverage of individuals under [the ADA’s definition], to the maximum extent permitted by the terms of this [definition].”³³⁹ Nevertheless, courts’ dismissiveness of MCS still sometimes surfaces in contemporary case law. For example, in 2022, the Eastern District Court of Virginia excluded an MCS medical diagnosis from evidence because it “lacked reliability and the medical community has not accepted MCS as a diagnosis.”³⁴⁰

After the ADAAA’s passage, some federal agencies began proactively accommodating MCS. In 2009, the CDC enacted a no-fragrance policy in its offices that is enforced to this day.³⁴¹ Nevertheless, the agency does not officially recognize MCS as a medical condition.³⁴² Despite the CDC’s no-fragrance policy, courts remain highly skeptical that enacting and enforcing such a policy at the workplace constitutes a reasonable accommodation. Even in pre-ADAAA cases, where fitting MCS into the ADA’s disability definition was not guaranteed, courts adamantly declared policies preventing fragrance-wearing in the workplace unreasonable and thus not required under disability rights law.³⁴³ The Section below discusses courts’ reasoning for rejecting third-party accommodations involving MCS and fragrance sensitivity.

C. The So-Called Questionable Enforceability of No-Fragrance Policies

Courts’ first rationale for rejecting a no-fragrance policy—which, again, accommodates a fragrance-sensitive person by requiring third parties to refrain from wearing scents—asserts that such policies inflict an undue hardship on the employer, making them unreasonable.³⁴⁴ The Minnesota District Court, for example, decided that no-fragrance policies “impose an undue financial and administrative burden on employers, because they are very difficult to enforce,”³⁴⁵ requiring “a closer inspection than may be considered suitable in the workplace.”³⁴⁶ A Sixth Circuit decision determined without any discussion that “[i]t would be impractical and virtually impossible for the FAA [Federal Aviation Administration] to enforce the [no-fragrance] accommodation requested by” its employee, an Air Traffic Control Specialist with MCS and that the accommodation was “[c]learly . . . not objectively reasonable.”³⁴⁷ Ironically, a Tennessee district court mentioned this decision two decades later while approving masking as a third-party accommodation, making a point to distinguish between the real danger of catching COVID-19 and MCS, which the court proclaimed to be a “mere ‘sensitivity’ to fragrances in perfumes and colognes.”³⁴⁸ The court also determined such accommodation had “virtually nothing to do with the safety of the workplace.”³⁴⁹

Though decided a decade apart, two other district court cases involving public school teachers with MCS reached similar conclusions. In the 2012 case, middle-school teacher Nada Feldman resigned, alleging her employer committed disability discrimination because it refused to accommodate her MCS.³⁵⁰ The Western District of North Carolina granted summary judgment to the school and dismissed her failure to accommodate claim. Regarding the reasonableness of a no-fragrance policy under these circumstances, the court stated that “[a] public school could never be free from any objectionable smell or any deodorant, perfume, cologne, hand lotion, or cleaning products.”³⁵¹

Ten years later, in 2022 and under similar facts, a Virginia district court more explicitly rejected a schoolteacher’s request for a no-fragrance policy as a reasonable accommodation in Anderson v. School Board of Gloucester County.³⁵² The court ruled in favor of the employer and emphasized the difficulty of enforcing a mandatory no-fragrance policy in a school environment, fully adopting the employer’s stance on this issue:

[The fact] [t]hat Plaintiff worked in a school only heightens the unreasonableness of the request. . . . As many as 700 individuals came into Page Middle School on any given day, rendering it nearly impossible to police the smells that may have entered the building. Even limiting this consideration to the individuals with whom Plaintiff interacted—over sixty each day by Plaintiff’s count—enforcement remained implausible.³⁵³

Following the ADAAA’s enactment, which clarified MCS’s status as a legally recognized disability, federal courts found another avenue to rule against plaintiffs: using the undue hardship standard to declare no-fragrance policies unreasonable.³⁵⁴

At first read, the courts’ approach appears sensible. After all, it is difficult to conceptualize a completely fragrance-free environment and ways to achieve it. Yet the issue’s discussion should be more nuanced and tailored to the extent of the requested accommodation. Employees with MCS and fragrance sensitivity often want a much more workable solution “to limit the most egregious scents through a written policy and employee education regarding chemical sensitivities.”³⁵⁵

A handful of court decisions expressed sympathy toward no-fragrance policies. One state court in 2017 awarded John Barrie, an employee of the California Department of Transportation (Caltrans) with MCS, $3 million in a jury trial for emotional distress due to unlawful discrimination (through failure to accommodate) and harassment due to disability. The order was affirmed on appeal in 2019.³⁵⁶ For Barrie’s first five years at Caltrans, his supervisor successfully accommodated his condition by designating him a “chemical-liaison” in charge of ordering nonreactive cleaning supplies for the department’s custodians.³⁵⁷ However, a new supervisor refused to continue the accommodation.³⁵⁸ Despite numerous written and verbal complaints, Barrie suffered repeated exposure to chemicals—violations of his reasonable accommodation requests to enforce the policy on nonreactive cleaning supplies—and severe hostility and retaliation in the workplace.³⁵⁹ After Barrie complained, Caltrans transferred him to a newly painted location where the paint fumes caused a severe reaction and led to a workers’ compensation claim.³⁶⁰ Barrie’s employer again moved his workspace, this time to the lobby, where he was exposed to further chemicals and scents.³⁶¹ Coworkers accused Barrie of “turning the whole office upside down.”³⁶² They also doused Barrie’s cubicle with perfume, and the supervisor threatened to hold a group meeting in which Barrie’s coworkers could vent their aggression regarding his MCS.³⁶³ While this is an extreme case involving severe disability harassment and hostility, it demonstrates how a jury might be convinced that a no-fragrance policy could be a reasonable and workable accommodation.

In McBride v. City of Detroit, a Michigan district court recognized that, although an environment completely devoid of smells and chemicals is unattainable, an employer still carries the burden to show that a workforce-wide policy poses an undue hardship.³⁶⁴ This differs from the courts in Feldman and Anderson, which inserted their own words into the plaintiffs’ accommodation requests to make them seem overbroad and ridiculous.³⁶⁵ This discussion resembles the use of masking accommodations to protect immunocompromised individuals: A plaintiff may not seek a complete universal mask mandate; rather, they may only request masking in their immediate area, allowing noncontinuous masking for third parties.

Such a nuanced approach to no-fragrance policies fits with the approach taken by the Job Accommodation Network (JAN), the federally funded service aimed at advising employers and employees on disability accommodations.³⁶⁶ JAN describes three options for accommodating a person with MCS or fragrance sensitivity, one of which recommends removing the offending fragrance from the workplace through, for example, a no-fragrance policy.³⁶⁷

While JAN recognizes that enforcing a no-fragrance policy could amount to undue hardship and thus be considered unreasonable (specifically in situations where “non-employees such as clients and volunteers come into the workplace”), JAN suggests sample policy language.³⁶⁸ This includes real cross-sector statements from employers, like “Cologne, perfume, aftershave lotions, scented lotions, or body washes are not to be worn in the Medical Center” or “This is a fragrance-free office. Please help us to accommodate our co-workers and clients who are chemically sensitive to fragrances and other scented products. Thank you for not wearing perfume, aftershave, scented hand lotion, fragranced hair products, andor [sic] similar products.”³⁶⁹ Following litigation, a Detroit employer adopted such a policy in 2010.³⁷⁰ In the aforementioned case McBride v. City of Detroit, a city employee with MCS sought “to limit the most egregious scents through a written policy,” which the court did not consider an undue hardship.³⁷¹ The case eventually settled, and the city enacted no-fragrance policies in its buildings.³⁷²

Still, there have been cases where courts understandably deemed a no-fragrance policy unreasonable. One example involved a supervisor with autism and a “debilitating hypersensitivity to fragrances” working at a juvenile detention center.³⁷³ The Montana Supreme Court ruled that “no reasonable accommodation in the form of a fragrance policy existed that could have enabled [the employee] to come across members of the public and arrestees—central components of his job—without encountering offensive fragrances.”³⁷⁴ The court also mentioned that such a no-fragrance policy is not enforceable—the public-facing nature of the plaintiff’s job required him to regularly encounter “non-employees.”³⁷⁵

Canada’s experience accommodating people with MCS is instructive. Ever since the Canadian Human Rights Commission bolstered protections for individuals with environmental disabilities,³⁷⁶ no-fragrance policies have been recognized and widely used as reasonable accommodations under Canadian disability rights law.³⁷⁷ In 2007, the Canadian Human Rights Commission published a policy on the topic, recognizing that “[c]hemical elimination and avoidance is the most significant form of accommodation for environmental sensitivities. Employers and service providers ought to consider the extent to which they can eliminate use of pesticides and use less-toxic or non-toxic cleaning products.”³⁷⁸ In a 2019 flyer, the Canadian Human Rights Commission indicated that employers should mention scent-free policies in their offer letter to new employees and that “[o]nce employees are aware of their obligation to be scent-free, it is reasonable to expect them to comply or face consequences if they fail to do so.”³⁷⁹

Like the JAN recommendation, the Canadian approach recognizes that a completely scent-free environment cannot always be achieved. Interestingly, it also mentions the health benefits of such a policy even for people without MCS and fragrance sensitivity,³⁸⁰ an emphasis that corresponds to how MCS activists frame their condition. MCS activists often refer to themselves as “the canaries that nineteenth-century coal miners carried with them on their excavations” because the symptoms they experience could signal upcoming danger to others.³⁸¹ This thinking has attained some purchase in U.S. policy. Recent legislation prohibits products that contain chemicals harmful to the entire population. For example, in 2022 and 2023, a 2019 New York statute went into effect—initiated by the state’s Department of Environmental Conservation³⁸²—that prohibits the sale of everyday products, including popular laundry detergents, made with “emerging contaminants” like 1,4-Dioxane.³⁸³

The Canadian experience shows that no-fragrance policies are workable and effectively create an inclusive, barrier-free environment for people with MCS and fragrance sensitivity in schools and universities.³⁸⁴ The Canadian example also renders the courts’ reasoning in Feldman and Anderson less persuasive. This does not mean that no-fragrance policies can always be enforced. Many factors contribute to the accommodation’s reasonableness and availability.³⁸⁵ Yet, it seems courts remain unwilling to recognize no-fragrance policies as a reasonable third-party accommodation for people with fragrance and chemical sensitivities.

It is also illustrative that a Tennessee district court specifically stated that a mandatory policy limiting the nondisabled population’s choices is not reasonable: “There is nothing in [section 504 of the Rehabilitation] Act to suggest that the non-disabled population was expected to give up or substantially alter their lifestyle.”³⁸⁶ The U.S. District Court for the District of Minnesota agreed with this observation, stating that “[r]easonable accommodations do not encompass proposed solutions which would violate the rights of other employees, such as restricting their right to wear fragrances.”³⁸⁷ The recent Anderson case makes the same point:

Plaintiff’s proposed accommodations imposed on the School that it make an unreasonable request of the students and families. For instance, Plaintiff sought to ask parents to change the laundry detergent or hair products that they used in their home. Such an intrusion into the students’ homes goes well beyond a reasonable request that a school could make of its students.³⁸⁸

Yet, as this Article has shown in the context of smoking, food allergies, and masking, courts already implement third-party accommodations. Therefore, the courts’ adamant statements that nondisabled individuals cannot be asked to change their behavior is an unfounded assessment of the doctrine behind reasonable disability accommodations.

VI. Assessing the Reasonableness of Third-Party Accommodations: Guidance for Courts and Decisionmakers

After establishing third-party accommodation as a subcategory within disability accommodation doctrine, I will now turn to what makes a third-party accommodation reasonable, and thus required, under the ADA. This Section offers an open-ended list of factors and balancing tests that courts and decisionmakers consider when determining whether a third-party accommodation is reasonable under the circumstances.

One consideration relates to whether the medical profession recognizes the underlying disability. Healthcare professionals act as gatekeepers, approving accommodations and effectuating legal protections for disability.³⁸⁹ A controversial condition’s failure to gain full recognition from the medical profession, such as MCS and food allergies before the discovery of IgE,³⁹⁰ potentially obstructs the second party (an employer or a covered entity) or courts from approving requested accommodations. The physician’s role is therefore critical first in establishing standing under disability rights law and then in determining the accommodation’s reasonableness.³⁹¹

A decision regarding an accommodation’s reasonableness is fact-specific and “depends on a variable mix of factors.”³⁹² The Supreme Court famously concluded that for an accommodation to be considered reasonable in the employment context, it needs to be “reasonable on its face, i.e., ordinarily or in the run of cases.”³⁹³ For accommodations under Title III of the ADA—which encompass accommodations required from private covered entities and, by extension, public covered entities under Title II—the Supreme Court in PGA v. Martin emphasizes that courts must assess the accommodation’s importance to the disabled person’s individualized needs.³⁹⁴ To be reasonable, an accommodation cannot impose an undue hardship on the employer’s business operations³⁹⁵ or fundamentally alter a private or public entity’s “good[s], service[s], facilit[ies], privilege[s], advantage[s], or accommodation[s] being offered,” or result in an undue burden.³⁹⁶

I propose a list of nonexhaustive factors below, which aim to provide initial guidance based on the research and examples presented in the Article. Weighing these factors, which are unique to third-party accommodations, should help courts and decisionmakers determine whether a third-party accommodation constitutes a fundamental alteration or an undue burden/hardship in the specific circumstances before them.

A. Level of Infringement on Personal Freedoms

Freedom is a central tenet among American values.³⁹⁷ Broadly speaking, freedom requires the absence of harm and unwarranted interference in a person’s life; the limits and contours of freedom differ among individuals and are influenced by social, cultural, and political views.³⁹⁸ A person’s belief about the extent of desirable personal freedom directly affects their tolerance toward disability accommodations. This is especially true when discussing third-party accommodations, which require others aside from the traditional second party to facilitate disability inclusion.³⁹⁹ A public tweet posted by right-wing writer Richard Hanania provides an extreme example of the connection between tolerance for disability accommodations and perceptions of freedom. He expressed dismay about sign language interpretation on live TV, showcasing what seems to be a much broader yet not often articulated sentiment: “This is like mask mandates, making life unliveable [sic] for an unfortunate few.”⁴⁰⁰

When encountering a request for third-party accommodations, courts and decisionmakers need to determine what infringes too heavily on others’ freedom, or more specifically, what creates an undue hardship/burden or fundamentally alters the activity in question. The concept of “too much infringement” varies according to the political and cultural climate, as the masking example clearly demonstrates, but it also varies with the issue’s familiarity. This is where the difference between the backlash against food allergies and MCS and other fragrance sensitivities comes into play. Although the former is a more culturally accepted and recognized phenomenon (albeit not to the extent people recognize smoking’s hazards), the latter condition is much less familiar, less recognized, and rarer. Yet as the Supreme Court recently determined in Groff v. DeJoy, coworkers’ animosity toward an accommodation cannot alone constitute an undue hardship.⁴⁰¹ Rather, an employer must show other costs to use this defense against a disability accommodations request.

The idea of proportionality, regarded in international and comparative law as a subset of reasonableness, could also help courts determine if an accommodation poses an unreasonable infringement on personal freedoms.⁴⁰² Proportionality analysis asks whether a less restrictive measure could achieve the same goal (here, accommodating the disabled individual).⁴⁰³ Admittedly, political/ideological differences often map onto broader views of how the individual relates to others—i.e., solidaristic interdependence or neoliberal independence⁴⁰⁴—and will continue to affect this and other questions of accommodations’ reasonableness.⁴⁰⁵

B. Cost-Benefit Analysis

As Professor Michael Stein observed, judges partial to law and economics theory traditionally assess a given disability accommodation’s reasonableness using a cost-benefit analysis.⁴⁰⁶ Even though I do not ascribe to such approach, it is important to engage with it due to its popularity.⁴⁰⁷

Certain instances, however, may complicate a cost-benefit analysis of third-party accommodations. Because the cost of accommodating a disabled person through another’s behavior may be harder to quantify: How much does it cost to change a team’s communication style to accommodate an autistic worker, as in this Article’s introductory example? What is the price of communal handwashing at a school attended by children with food allergies? What is the collective price of unscented products and nonallergenic food?

Masking poses another interesting case study. On one hand, masks are cheap, commonplace, and scientifically proven to provide a reasonable level of protection against COVID-19 and other airborne diseases like the flu or RSV.⁴⁰⁸ On the other hand, masking also creates negative externalities: Masks can be cumbersome and uncomfortable, creating a barrier to effective communication and quality social engagement for children and adults.⁴⁰⁹ Masking may also create competing interests for people who are deaf and need to read lips.⁴¹⁰ Nevertheless, this Article’s call for an individualized third-party accommodation approach to masking, not a universal masking mandate, could mitigate some costs because third parties do not need to mask at all times.

Third-party accommodations also provide benefits to both second and third parties.⁴¹¹ Communal handwashing benefits others by encouraging good hygiene. A Sixth Circuit case involving a deaf person who applied for a lifeguard position provides another example.⁴¹² The individual proposed a third-party accommodation to help him communicate with other lifeguards during emergencies, modifying the pool’s emergency action plan (EAP) so it would not rely solely on the sound of a whistle. Instead, other lifeguards would also signal an emergency by putting a fist in the air and repeatedly opening and closing it.⁴¹³ In this case, the Sixth Circuit found that the proposed third-party accommodation’s increase in safety procedure would actually benefit all parties, including other lifeguards and staff.⁴¹⁴

This example of a nuanced cost-benefit analysis—informed by science, original problem-solving skills, and good faith—should be the norm among courts and decisionmakers discussing a third-party accommodation’s reasonableness.

C. Level of Control over Third Parties

Disability rights law includes accommodation mandates for both employment, under Title I of the ADA, and public spaces (whether privately owned under Title III of the ADA or publicly owned or supported under Title II of the ADA or Section 504).⁴¹⁵ Second parties presumably have more control over third parties in certain contexts. For instance, an employer has considerable control over their employees, and a school principal retains more control over their students than an owner of a theater over the theatergoers. The identity of the third parties in a specific context also matters. For example, young children’s behavior may be more difficult for a second party to control than adults.⁴¹⁶ Additionally, it might be more difficult for third parties with disabilities to comply with an accommodation policy, reducing the presumed level of control over them.

In considering third-party accommodations, there should be a rebuttable presumption that the second party can control third parties and enforce the accommodation. This is particularly true when similar policies are already in place that might not be related to disability accommodation, like a school that already has bans on candy, chewing gum, or fast foods but refuses to enact a peanut-free environment policy.⁴¹⁷ The second-party defendant could rebut the presumption by bringing evidence that they lack sufficient control over third parties.

A similar rebuttable presumption may arise when discussing tort liability for harm caused by the second party’s inadequate enforcement of the third-party accommodation. As full compliance is difficult to achieve, I suggest creating another rebuttable presumption that presumes the second party’s liability for the harm. To rebut this presumption, the second-party defendant would need to demonstrate their unsuccessful efforts to enforce the policy underlying the third-party accommodation. In other words, the second-party defendant needs to demonstrate that it had no de facto control over the third parties. Where the defendant rebuts the presumption, the disabled individual should be able to pursue recovery from identifiable third parties who did not obey the policy.⁴¹⁸ Considering litigation costs and the difficulty in identifying the third parties, I do not expect this situation to occur frequently. Rather, this solution attempts to provide the disabled individual some recourse where third parties fail to accommodate beyond the second party’s control.

D. Conflicting Access Needs and Clashes Between Accommodations

Situations where one disability accommodation clashes with another’s accommodation are an understudied problem in disability rights law. These types of situations where access needs of two or more people with different impairments are in conflict may occur when we discuss third-party accommodations. Examples include a situation where a service dog handler encounters a group of people with dog allergies (for example in a doctor’s office or on a plane),⁴¹⁹ or where an immunocompromised individual requires masking as a third-party accommodation but the other people around them cannot wear a mask.⁴²⁰ In these types of situations, a court will need to decide whether the third-party accommodation is reasonable and could trump over the other’s competing access needs.

One way for courts to resolve such a situation is through the doctrine of direct threat defense in the ADA.⁴²¹ A direct threat will occur if the requested accommodation poses a significant risk of substantial harm to the health or safety of others, which cannot be eliminated or reduced by a reasonable accommodation. The ADA regulations require that the safety requirements underlying the direct threat defense “must be based on actual risks, and not on mere speculation, stereotypes, or generalizations about individuals with disabilities” and require an individualized assessment of whether such direct threat exists.⁴²²

Indeed, using the direct threat doctrine, courts have resolved the issue of a clash between a person’s right to have a service dog and another’s allergies to dog with mixed results (thus leaving open the question of whether an allergy to dogs a legally protected category under the ADA).⁴²³

The regulator may also provide guidance on clashes between accommodations and create a bright-line rule where one’s access needs of one trump the other’s. The ADA regulations specifically note that fear of dogs does not constitute a valid defense for preventing access to service dog handlers; ADA guidance published by the Department of Justice advises that neither fear of dogs nor allergies are valid defenses..⁴²⁴

E. The Role of Custom and Existing Norms

The story of third-party accommodations’ recognition demonstrates the intricate relationship between established social norms and developing legal rules.⁴²⁵ Typically, as a social norm becomes more entrenched, legal recognition follows. When considering a third-party accommodation’s reasonableness, courts should pay attention to processes occurring in society, specifically recognizing certain behaviors that de facto implement third-party accommodations as acceptable. Allowing for adjacent modifications in policies—like a school prohibition of candy or fast foods when discussing the prohibition of allergen foods⁴²⁶—should signal the accommodation’s workability and, therefore, reasonableness.

Like the role custom plays in torts, where the admission of a universal (or nearly universal) practice as evidence assists in establishing a duty of care,⁴²⁷ existing norms could point to the reasonability of a third-party accommodation. Norms are prone to change over time; this naturally includes the recognition of what is considered a reasonable disability accommodation.

F. The Nature of the Disability and Consequences of Not Accommodating

One may be tempted to create an impairment hierarchy according to the severity of the harm that could be inflicted on the disabled individual without accommodations, meaning a third-party accommodation should be required and implemented only if the harm is severe enough, such as with life-threatening food allergies.⁴²⁸

Yet, a less severe, non-life-threatening consequence should not be grounds for decisionmakers to find an accommodation unreasonable. First, an impairment hierarchy does not appear anywhere in disability rights law, which is meant to cover a wide variety of impairments.⁴²⁹ As activist and writer Mary Johnson argued, Congress did not intend for the ADA to determine worthiness of protection (unlike what Social Security laws aim to do): “[T]he law was not about disability—but about discrimination.”⁴³⁰ Second, a mild reaction or inconvenience to a nondisabled person could have significant consequences for a disabled person (for example, the long-term effects of contracting COVID-19 for immunocompromised people or the after-effects of allergic reactions). The severity of a reaction may also vary from one disabled person to another. Third, common biases regarding the authenticity and severity of disabilities—like fear of the disability con—color judgment about deservingness, especially when addressing less visible disabilities. These biases create a barrier to equal access.⁴³¹

In some cases, the covered entity could assert de minimis harm as a defense against approving third-party accommodations. This would occur where the harm caused by refusing the accommodation is considered too small to compensate. In that scenario, the burden of proof to demonstrate de minimis harm should lie with the second party.

Conclusion: A New Category of Reasonable Accommodations

The view that disability depends on the social environment has evolved in recent decades, and this Article calls for us to adapt our understanding of reasonable accommodations accordingly. Reasonable accommodations should expand beyond traditional privity between the first party (the disabled individual) and the second party (the employer or covered entity) to include third parties whose choices and behaviors affect disability access. This new category of accommodations already lurks in early ADA cases on secondhand smoking that serve as an unexplored exception to the backlash against the ADA. In those cases, courts allowed for a modification to workplace policies to prohibit smoking in enclosed spaces. Later, activism by parents of children with food allergies put this issue on the mainstream agenda, allowing for third-party accommodations to proliferate in schools, aboard planes, in the workplace, and in public spaces. At least certain circuit courts recognized masking as an accommodation to protect immunocompromised school students during the COVID-19 pandemic and its aftermath under disability law. Yet requiring providers to mask in healthcare settings has posed a new challenge. When it comes to no-fragrance policies to accommodate people with MCS, which is a contentious condition that lacks reliable biomarkers, courts have been much more reluctant to recognize this remedy as a reasonable accommodation. The story arc of third-party accommodations can also serve as an example of the complex relationship between law and society specifically in the healthcare realm, where issues like the politicization of preventive care, biotechnological advancement, patient activism, and distrust of people with disabilities play a significant role in shaping legal doctrine and legal norms.

Unlike previous discussions on the indirect burden of accommodations on third parties,⁴³² third-party accommodations require a change in behavior. These types of situations directly affect everyday relationships and interactions between nondisabled and disabled individuals.

Third-party accommodations may therefore also require a change in communication between third parties and the first party. This applies to neuroinclusive communication,⁴³³ an approach that ensures that individuals on the autism spectrum—like Tamara Brown⁴³⁴—can understand social interaction, fully participate in the workplace, and feel valued in the labor market and society. This is also the case of Nicholas Keith, the deaf lifeguard for whom the public pool changed its emergency protocol to include visible alert gestures.⁴³⁵

A policy requiring users to add an image description (so-called “alt text”) to photos on documents or websites presents a future case for a third-party accommodation to help promote better communication between disabled and nondisabled individuals. This would allow people with visual impairment to access this visual information. While, currently, adding alt text is done voluntarily on social media platforms like X or Instagram,⁴³⁶ one could imagine such a policy in work environments or public publications. Using AI to generate alt text at low cost should play into determining the reasonableness of such accommodation.⁴³⁷ Third-party accommodation in online environments could also accommodate people living with epilepsy by prohibiting flashing images that cause seizures.⁴³⁸

An additional important contribution of this Article is opening the door for future explorations of third-party accommodations beyond the realm of disability. When thinking of religious accommodations, for example, one could consider how some Muslims believe that sitting at a table or attending a party where alcohol is served is against their religion. Here, a third-party accommodation would be a request that no alcohol be served at a company event.⁴³⁹ Other cases of religious employees unwilling to be housed with or seated near LGBTQ+ coworkers also come into mind and raise difficult questions relating to infringement on freedom⁴⁴⁰ and competing access needs like those discussed in the disability context.⁴⁴¹

In an ever-changing world where protecting civil liberties is increasingly at play, the third-party accommodations theory and its normative implications appear constantly. This Article fills the current gap in the literature and case law regarding the availability and limits of third-party accommodations, paving the way to a more inclusive, interdependent society.

* Professor of Law, Seton Hall Law School. This Article was selected for the 2025 Harvard/Yale/Stanford Junior Faculty Forum. I am grateful to Christine Jolls, Rebecca Tushnet, Norman Spaulding, and the cohort of junior scholars for their superb commentary. For constructive feedback and fruitful engagement with this project, I would like to thank Swethaa Ballakrishnen, Deborah Brake, David S. Cohen, Michael Coenen, Yaron Covo, Mary Crossley, Paul Diller, Andrew Elmore, Dallan Flake, Leah Fowler, Thomas Healy, Valerie Seiling Jacobs, Sara Klein, Asaf Kletter, Scott Landes, Rachel Lopez, Katherine Macfarlane, Mason Marks, Nicole Buonocore Porter, Ryan Nelson, Chloe Reichel, Jessica Roberts, Jennifer Shinall, and Deb Widiss. Joshua Murphy and Maura Quinn provided exceptional research assistance. I benefited tremendously from feedback I received at the Colloquium on Scholarship in Labor and Employment Law (COSELL), the New Voices in Labor and Employment Law Panel at the 2023 AALS Annual Meeting, Boston College Law’s Regulation and Markets Workshop, the All About Accommodations symposium at Chicago-Kent College of Law, and the faculty workshops at the University of Arizona James E. Rogers College of Law, University of Connecticut School of Law, Cornell School of Industrial and Labor Relations, Elisabeth Haub School of Law at Pace University, Drexel University Thomas R. Kline School of Law, University of Pittsburg School of Law, Rutgers Law School, Seton Hall Law School, Suffolk University Law School, UC Irvine School of Law, and Wayne State University Law School. I am incredibly grateful to the Michigan Law Review editors David Canada, Heather Foster, Ethan Greenberg, Daniel Kaylor, Nathaniel Magrath, and Justin Yu for their terrific work on this Article.