“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

In the March 2020 decision in Cook v. George’s Inc., a judge appointed by President George W. Bush ruled that a company may well have violated the Americans with Disabilities Act (ADA) when it classified a former employee with disabilities as “not eligible for rehire” because of a “known or perceived medical condition” and refused to rehire him. But Trump Eighth Circuit judge David Stras dissented, and argued that the case should be dismissed.

Jerry Cook, a man from Arkansas with mental and physical disabilities, had a job at George’s Inc., a producer of poultry and other food products. While he was employed there, Cook was “able to do his job with reasonable accommodations.”

When Cook left his job, George’s human resources (HR) department created a file on him that classified him with the code “333,” which meant that he was not eligible for rehire because of a “known or perceived medical condition.” Cook applied to be rehired in October 2015 but, according to his complaint, George’s management told HR that although Cook could be interviewed, they could “not hire [him] no matter what.”

In fact, HR did schedule an interview with Cook, who missed it. But when he asked to  reschedule, HR refused to do so, despite having done so for others who had similarly missed their interviews, and rejected his application.

After receiving a right-to-sue letter from the EEOC, Cook filed suit against George’s, on behalf of himself and others who had received the “333” classification and thus were not hired because of disability. Rather than allowing the case to proceed, however, a district court dismissed it, claiming that Cook’s complaint did not contain sufficient facts to show that Cook was not rehired because of disability, as opposed to his failure to “attend” his first job interview.

In a 2-1 decision written by Bush appointee Michael Melloy, the Eighth Circuit reversed. Judge Melloy explained that precedent made it “clear” that the complaint “alleged facts sufficient to establish” an ADA claim. Without even an answer or any discovery, Melloy went on, it was “speculation” to suggest that the real reason for not rehiring Cook was that he had missed his first interview, especially since he alleged that interviews were rescheduled for others who missed them.  “At this early stage in the litigation,” Melloy concluded, “Cook has plausibly alleged that George’s refused to consider rehiring him because of his disability,” and the case should not have been dismissed.

Trump judge David Stras dissented, arguing that the case should be dismissed because Cook’s complaint did not identify the specific job for which he was applying. Judge Melloy squarely rejected that argument. “[N]owhere in the motion to dismiss” or supporting arguments, Melloy explained, “does George’s assert that as a ground for dismissal.” Neither was that issue even mentioned by the lower court. Had it been mentioned, Melloy went on, it “could have been easily remedied by an amendment” of the complaint. The appeals court, Melloy pointedly noted, “should not decide a case based upon a ground that was not urged by the moving party.”

Disability discrimination in the workplace is pervasive across industries and professions. Fortunately for Jerry Cook and other job applicants with disabilities, he will now be able to proceed with the case against George’s for disability discrimination. But Stras’ attempt to dismiss his case on a basis that was not even raised by the employer is very troubling, and demonstrates the danger that Trump-appointed judges can create for the disability community.