Upcoming Oral Argument Before the Supreme Court in Stanley

I wanted to tell everyone that my thoughts are with you with respect to weather-related disasters. California struggling terribly with the fires. The South got hit with winter storms. We had 4 inches of snow in Atlanta. Fortunately, it should all be gone by later this afternoon. Again, my thoughts are with everybody.

I wanted to discuss the upcoming argument the Supreme Court will hear on January 13, 2025, in the Stanley matter, which we discussed here. Here is what I will be looking for. Title I of the ADA is very much written in terms of whether the person is a current employee as are the final implementing regulations. Does that mean that Title I will not apply to a situation where a former employee allegedly has their benefits cut on the basis of their disability? It will be interesting to see the arguments on that. That said, I am also terribly curious to see if there is any discussion about the applicability of Title II and Title III to situations like this. Both of those titles are not written in terms of whether the person is an employee at that time. So, it is entirely possible that you could have a decision saying that Title I does not apply but Title II or Title III does apply, depending on whether a nonfederal governmental entity or a place of public accommodation is involved. The rest of the blog entry discusses my thought processes in more detail. Of course, I don’t exactly know how the argument is going to go. Also, this is completely my thinking process. I have not looked at any of the briefs that were placed before the Supreme Court. This is a real short blog entry and doesn’t divide neatly into our usual category types, so the reader will probably want to read the whole thing.

I

Title I is in Employee Centric Terms and So Does Not Apply

In order to be protected under Title I of the ADA you have to both be a person with a disability and qualified. Title I of the ADA at 42 U.S.C. §12111(8),  defines a qualified individual with a disability as: “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” Similarly, 29 C.F.R. §1630.2(m) defines qualified as meaning: “an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” So, it is easy to see how an argument can be made that Title I would not apply to a former employee.

II

Title I Even Though It Is in Employee Centric Terms, Might Still Apply

Title I at 42 U.S.C. §12112(a), states: “No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” So, it is quite clear that Title I of the ADA applies to compensation and to employee benefits.

The other argument that might be made is that at the time the benefit was received by the plaintiff, the plaintiff was entitled to get those benefits. Therefore, that status continues even after they are employed.

III

Title II of the ADA Has a Different Definition of Qualified

Title II of the ADA has a completely different definition of what qualified means. In particular 42 U.S.C. §12131(2) states: “The term “qualified individual with a disability” means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” Similarly, 28 C.F.R. §35.104 defines a qualified individual as: “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.”

The statutory and regulatory phrasing are not tense specific as they are talking about whether a person is eligible for a particular program in that given moment and not with respect to a past situation.

IV

Title III of the ADA Does Not Even Contain the Word Qualified

Title III of the ADA does not even use the word qualified. However, I don’t know how that term cannot play a role considering the concepts of undue burden and fundamental alteration contained in Title III.

Also: 1) Title III of the ADA at 42 U.S.C. §12182(a) states: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation;” 2) 42 U.S.C. §12182(b)(1)(A)(ii) states: “It shall be discriminatory to afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals;” 3) 42 U.S.C. §12182(b)(1)(D) states: An individual or entity shall not, directly or through contractual or other arrangements, utilize standards or criteria or methods of administration—(i) that have the effect of discriminating on the basis of disability;” and 4) Similar language can be found in 28 C.F.R. Part 36, DOJ’s final implementing regulations for Title III. A plain reading of all the statutory provisions of Title III clearly suggests that a former employee would be able to pursue a claim under Title III if a private entity did something similar to the public employer in Stanley.

V

Conclusion

I strongly suspect that grammar will play a big role in the argument. What I am incredibly curious about is whether any of the Supreme Court Justices will zero in on how the other titles of the ADA could very well apply even if Title I of the ADA does not. I do not know why this case was structured as a Title I case and not as a Title II case, since a nonfederal governmental entity is involved. One possibility is that lawyers are specialists and may not have been all that familiar with the other titles. The more likely possibility, given the economics of law practice, is that the remedies are much more inviting with respect to Title I than they are with respect to Title II, especially after Cummings, which we discussed here. The transcript of the Supreme Court oral argument comes out in the late afternoon of argument day, so I will be very interested to read the transcript. My next blog entry after this one will be an entry discussing the oral argument. I am hoping to get that up this week, but my schedule is pretty packed.