I read a recent Sixth Circuit decision. A physician group fired the plaintiff, a nurse, months after she suffered an accident. The group’s subsequent bankruptcy impeded the plaintiff’s efforts to hold it liable for employment discrimination under the Americans with Disabilities Act of 1990 (ADA).
Did that stop her from suing for ADA violations? Obviously not, or I wouldn’t be blogging today.
She instead sued the hospital at which she worked.
But here’s the thing. This hospital did not employ the plaintiff.
Yet, the plaintiff argued to the lower court (and again on appeal) that the ADA allowed her to enforce its employment protections against non-employers.
Specifically, an ADA catchall provision (which the Sixth Circuit referred to as the “interference” provision) makes it “unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of” an ADA-protected right. The Sixth Circuit noted, “Congress wrote this text in the passive voice without identifying the subject of its prohibition (that is, the party who cannot engage in the unlawful interference).”
Therefore, the issue before the court was whether the interference provision allows plaintiffs with disabilities to sue any entity (even entities that are not their employers).
The Sixth Circuit answered no.
Just below the interference provision is another ADA section that identifies “remedies and procedures,” which incorporates remedies available under Title VII of the Civil Rights Act of 1964. Title VII only permits individuals to sue employers (and a few other irrelevant entities). Therefore, our little game of connect-the-dots indicates that ADA plaintiffs can only sue their employers.
The Sixth Circuit reasoned that it made “perfect sense” for Congress to incorporate Title VII’s remedial scheme into the ADA’s employment subchapter and provide a cause of action only against parties suable under Title VII. Most notably, the ADA’s employment subchapter makes it unlawful only for a “covered entity” (i.e., an employer) to discriminate against a “qualified individual” because of disability.
The Sixth Circuit didn’t stop there:
But why didn’t Congress simply use the phrase “covered entity” in the ADA’s interference provision too? Recall that this provision applies not just to the employment subchapter but also to the government-services and public-accommodations subchapters too. Its universal application in all three contexts shows why the provision lacks a single subject—because the proper defendant depends on the proper context. In the employment context, that defendant can only be a “covered entity.” (cleaned up).
But there’s a catch. Or maybe, the Sixth Circuit couldn’t resist pouring a little salt on the plaintiff’s wound.
The court suggested that even though the hospital was not the plaintiff’s direct employer, perhaps she could have argued that the hospital was her joint employer. However, since the plaintiff failed to raise this argument, she forfeited it — womp-womp — and the court did not have to consider it.