Today’s blog entry is not on an issue that I have blogged on previously. It deals with the question of what happens when a person leaves employment and was otherwise qualified during that employment, but after the employment ends, some discriminatory action occurs. Does title I apply since the person is no longer otherwise qualified/qualified? The circuit courts are split on this. This blog entry will discuss how this kind of case could go either way. As usual, the blog entry is divided into categories and they are: plaintiff loses: Stanley v. City of Sanford, Florida-facts; plaintiff loses: Stanley-11th Circuit’s reasoning; plaintiff could win: Castellano v. City of New York-facts; plaintiff could win: Castellano-Second Circuit’s reasoning; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.
Plaintiff Loses: Stanley- 11th Circuit’s Facts
When Stanley retired, she continued to receive free health insurance through the City. Under a policy in effect when Stanley first joined the fire department, employees retiring for qualifying disability reasons, such as Stanley’s Parkinson’s disease, received free health insurance until the age of 65. But, unbeknownst to Stanley, the City changed its benefits plan in 2003. Under the new plan, disability retirees such as Stanley are entitled to the health insurance subsidy for only twenty-four months after retiring. Stanley was thus set to become responsible for her own health insurance premiums beginning on December 1, 2020. She filed this suit in April 2020, seeking to establish her entitlement to the long-term healthcare subsidy.
Plaintiff Loses: Stanley v. City of Sanford, Florida-Court’s Reasoning
- Title I of the ADA applies to qualified individuals with a disability. As such, it has a temporal qualification. That is, a qualified individual under title I of the ADA, 29 C.F.R. §1630.2(m), is a person who satisfies the requisite skill, experience, and education requirements of the position and can, with or without reasonable accommodation, perform the essential functions of the job. See also, 42 U.S.C. §12111(8)
- in 1997, the Supreme Court held that an individual could sue his or her former employer under title VII for a post-employment retaliatory act. That decision doesn’t affect the question before the court because the statutory language of title I of the ADA is different.
- Under title I, only someone who with or without reasonable accommodation can perform the essential functions of the employment position that an individual holds or desires is protected from disability discrimination.
- “Holds,” and “desires,” are in the present tense. So, a victim of unlawful disability discrimination desires or already has a job with the defendant at the time the defendant commits the discriminatory act.
- Title I consistently uses the term “qualified individual,” to refer to active employees or current applicants.
- The court recognizes a circuit court split with the Sixth, Seventh, Ninth, and now Eleventh Circuits finding the temporal qualifier dispositive. The Second and Third Circuits (we will discuss the Second Circuit case below), have held to the contrary.
- Policy arguments do not empower a court to ignore unambiguous text and the Second and Third Circuits are policy driven decisions.
- The amendments to the ADA did not impact the qualified language of title I at all even if it otherwise expanded coverage of who has a disability and changed the causation language.
- The Fair Pay Act is of no help either because it doesn’t affect the requirement that a qualified individual be involved when it comes to title I of the ADA.
- The court need not address the argument as to when the disability discrimination claim accrued (an argument could have been made that the disability discrimination claim accrued while she was still employed because the handwriting was on the wall), because plaintiff waited too long to make the argument as it only came up in an amicus brief.
- Equal protection claim fails because persons with disabilities are in a rational basis class.
Plaintiff Could Win: Castellano v. City of New York-Facts
Various classes of police and fire officers in New York City who retired with disability pensions claimed that the City and applicable pension funds discriminated against them by denying them benefits for more lucrative variable supplement funds available only to retirees who retired after 20 years of service and who did not already receive disability pensions. One of the plaintiffs had an option to make a choice that would have qualified him for the variable supplement funds, but he was never told of that option when he made the choice. The other plaintiffs claimed that the set up itself was discriminatory.
Plaintiff Could Win Too: Castellano v. City of New York Second Circuit’s Reasoning
- Title I of the ADA, 42 U.S.C. §12112(a), prohibits an employer or labor organization from discriminating against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment, including the provision of fringe benefits. See 42 U.S.C. §12112(b)(2).
- A qualified individual with a disability is defined as an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. 42 U.S.C. §12111(8).
- Title I of the ADA failed to specify when a potential plaintiff must have been a qualified individual with a disability when it comes to a claim that the provision of retirement or fringe benefits is discriminatory.
- A literal reading of the committee report suggesting that the phrase “at the time of the employment action,” refers to the actual moment when the employer performed the discriminatory act would permit employers to discriminate freely against disabled retirees who had been qualified individuals up to the point of retirement, but who no longer held employment positions and or were no longer able to perform the essential functions of their former employment due to their health condition.
- A literal reading would allow an employer to terminate an employee in violation of the ADA and then deny that person fringe benefits because an employee could not bring an ADA claim for the latter violation as a result of not being a qualified employee at the time the action is brought. Such a reading would permit an employer to deny post-employment fringe benefits on the basis of disability to any retiree the day after but not the day before his retirement, which is completely irrational.
- The fact is that many fringe benefits are earned during years of service before the employment has terminated but are provided in years after the employment relationship has ended.
- Since retired employees who receive fringe benefits no longer work or seek to work for their former employers, they do not need to be able to perform the essential functions or any functions of their former employment. So, provided that retired employees were qualified while employed and on that basis became entitled to post-employment benefits, the purpose of the essential functions requirement is satisfied.
- Since fringe benefits are earned for actual service of employment, it is irrelevant whether former employees otherwise eligible for fringe benefits, could also perform the essential functions at or after termination of the employment.
- An employee’s entitlement to post-employment fringe benefits arises (as much or more so than does his interest in not facing post-employment retaliation), during the period of his employment.
- An interpretation preventing former employees who are no longer qualified individuals from bringing claims of discrimination in the provision of post-employment fringe benefits undermines the plain purpose of ADA §12112(a), (b)(2). Many fringe benefits are paid out to those who no longer work and who are no longer able to work, and some friend benefits are paid out to individuals precisely because they can no longer work. An expansive reading of the dispositive nature of “qualified individual,” would undermine the ADA’s broad remedial purpose to prohibit disability discrimination in all aspects of the employment relationship and leave disabled retirees unprotected from discrimination in the provision of pension, health and life insurance, and other post-employment benefits.
- The Second Circuit mentioned the Supreme Court retaliation decision and says that the policies underlying the Supreme Court decision applies with equal force to the fringe benefits situation.
- The EEOC has taken the position that qualified individuals include former employees who can no longer perform the essential functions of their former employment when it comes to fringe benefits situations.
- The language of the ADA and its legislative history makes it inconceivable that Congress in the same breath would expressly prohibit discrimination fringe benefits, yet allow employers to discriminatorily deny or limit employment benefits to former employees who ceased to be otherwise qualified/qualified at their retirement even though they had earned those fringe benefits through years of service in which they perform the essential functions of their employment.
- It is illogical to come up with a decision that excludes a large body of retirees from ADA coverage in light of the ADA’s broad remedial purpose.
- This question undoubtedly headed to the Supreme Court, perhaps even with this case.
- Stanley is a published decision as is Castellano.
- Very hard to say what the Supreme Court would do when faced with this question, even with the configuration of the current Supreme Court being what it is. While it is true that people with disabilities do not fare well when it comes to employment matters at the Supreme Court, they do fare well outside of the employment context. Furthermore, the policy arguments set forth in Castellano and how a literal reading of the ADA makes a shambles of the ADA’s purpose is, to my mind, quite persuasive. It will be interesting to see if a majority of the Supreme Court feels the same way. Also, pretty safe to say that three Justices will find Castellano persuasive rather than Stanley. Where the other votes will come from is not clear. Also, the fact that the many of the Justices are on the older side makes this kind of case a wildcard.
- As we have mentioned previously, such as here, persons with disabilities are the only group of people whose equal protection classification changes depending upon the facts of the particular case. People with disabilities may be in the rational basis class but they also may be in a class as high as intermediate scrutiny depending upon the facts. No other group of people changes their classification that way.