Real Safety AI Foundation / Research

Disability, Accessibility, and Civil Rights

Optimizing Against the Disability: Section 504 and the Deliberate Capture of Attention as Disability Discrimination

Publisher: Real Safety AI Foundation

Working draft. Not peer reviewed.

Written
June 2026
Version
v2
Pages
16
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Abstract

Section 504 of the Rehabilitation Act forbids a recipient of federal financial assistance from discriminating against people with disabilities in any of its operations. Attention deficit hyperactivity disorder is a recognized disability whose defining functional limitation is the regulation of attention. This article argues that when a federal funding recipient adopts a design model whose stated purpose is to capture and hold user attention, that recipient is optimizing against the precise capacity the disability impairs, and Section 504 is implicated. The argument is built on a live exemplar. Microsoft Corporation is a direct recipient of federal financial assistance, and its leadership has publicly reframed its consumer strategy around the capture of user attention, naming as its models two firms that courts and the Federal Trade Commission have already sanctioned for engagement design that harmed minors. The article establishes the recipient hook, identifies attention as the axis of the disability, sets out the regulatory record showing that attention capture design is both harmful and knowingly deployed, and then advances two theories of liability: denial of meaningful access under Alexander v. Choate, and intentional discrimination evidenced by an admission of design objective coupled with knowledge of disparate effect. It confronts the central obstacles, principally Alexander v. Sandoval and the limits of disparate impact enforcement, and shows why the intentional theory survives them. The recipient that declares it wants the attention has named the very thing the statute forbids it to optimize against.

Keywords

  • Section 504
  • Rehabilitation Act
  • disability discrimination
  • ADHD
  • attention
  • engagement design
  • dark patterns
  • meaningful access
  • federal financial assistance
  • Alexander v. Choate
  • Alexander v. Sandoval

Plain language slides

First slide of the plain language summary of Optimizing Against the Disability: Section 504 and the Deliberate Capture of Attention as Disability DiscriminationOpen the 18-slide summary (PDF)

Suggested citation

Gilly, Travis. "Optimizing Against the Disability: Section 504 and the Deliberate Capture of Attention as Disability Discrimination." Real Safety AI Foundation Working Draft, June 2026. https://realsafetyai.org/research/7mmqww/

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SSRN version

References (27)

This paper cites its sources in footnotes. Each authority is listed once, where it is first cited, with its footnote number.

  1. Footnote 1.Stephen Totilo, Game File (June 2026) (reporting the internal strategic posture and the studio consolidation that followed). [Full citation pending verification.]
  2. Footnote 2.42 U.S.C. §12102(2)(A)
  3. Footnote 3.29 U.S.C. §794(a)
  4. Footnote 5.34 C.F.R. §104.3(h)
  5. Footnote 5.Consolidated Rail Corp. v. Darrone, 465 U.S. 624 (1984).
  6. Footnote 9.Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, 102 Stat. 28 (1988)
  7. Footnote 9.29 U.S.C. §794(b).
  8. Footnote 10.29 U.S.C. §794(b)(3)(A)(i).
  9. Footnote 11.29 U.S.C. §794(d).
  10. Footnote 12.42 U.S.C. §12102(1)(A).
  11. Footnote 13.ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553
  12. Footnote 13.42 U.S.C. §12102(2)(A), (B)
  13. Footnote 14.Ramsay v. Nat’l Bd. of Med. Exam’rs, 968 F.3d 251 (3d Cir. 2020).
  14. Footnote 18.Press Release, Fed. Trade Comm’n, Fortnite Video Game Maker Epic Games to Pay More Than Half a Billion Dollars over FTC Allegations of Privacy Violations and Unwanted Charges (Dec. 19, 2022), https://www.ftc.gov/news-events/news/press-releases/2022/12/fortnite-video-game-maker-epic-games-pay-more-half-billion-dollars-over-ftc-allegations.
  15. Footnote 19.15 U.S.C. §45 (Section 5, prohibiting unfair or deceptive acts or practices).
  16. Footnote 19.United States v. Epic Games, Inc., No. 5:22-cv-00518 (E.D.N.C. 2022). [Docket pending confirmation.]
  17. Footnote 20.Press Release, Fed. Trade Comm’n, FTC Finalizes Order Requiring Fortnite Maker Epic Games to Pay $245 Million for Tricking Users into Making Unwanted Charges (Mar. 14, 2023), https://www.ftc.gov/news-events/news/press-releases/2023/03/ftc-finalizes-order-requiring-fortnite-maker-epic-games-pay-245-million-tricking-users-making.
  18. Footnote 22.Alexander v. Choate, 469 U.S. 287, 301 (1985).
  19. Footnote 23.Doe v. CVS Pharmacy, Inc., 982 F.3d 1204 (9th Cir. 2020) (the facially neutral character of a benefit does not defeat a disparate impact claim premised on the denial of meaningful access).
  20. Footnote 24.Alexander v. Sandoval, 532 U.S. 275, 279–80 (2001).
  21. Footnote 25.Duvall v. County of Kitsap, 260 F.3d 1124, 1138–39 (9th Cir. 2001)
  22. Footnote 25.Liese v. Indian River County Hosp. Dist., 701 F.3d 334 (11th Cir. 2012)
  23. Footnote 25.Mark H. v. Lemahieu, 513 F.3d 922, 938 (9th Cir. 2008) (a funding recipient may be liable in damages under Section 504 where it intentionally or with deliberate indifference fails to provide meaningful access).
  24. Footnote 29.Doe, 982 F.3d 1204 (the meaningful access standard does not require that the deprivation be unique to the protected class or severe).
  25. Footnote 30.Barnes v. Gorman, 536 U.S. 181, 187–89 (2002) (no punitive damages under Section 504 and Title VI)
  26. Footnote 30.Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212 (2022) (no emotional distress damages under Section 504 and the Affordable Care Act’s antidiscrimination provision).
  27. Footnote 32.Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173 (11th Cir. 2007) (voluntary cessation by a private defendant does not moot a claim absent a heavy showing that the challenged conduct will not recur), abrogated on other grounds by Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212 (2022).

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