As most know, the Americans with Disabilities Act only protects “qualified individuals” with a disability from employment discrimination. But what does it take to be a “qualified individual?” The U.S. Equal Employment Opportunity Commission previously issued interpretive guidance that established a two-step process for determining when someone is a qualified individual:
- “The first step is to determine if the individual satisfies the prerequisites for the position, such as possessing the appropriate educational background, employment experience, skills, licenses, etc.” – Interpretive Guidance on Title I of the Americans With Disabilities Act, 29 CFR Appendix to Part 1630 (1630.2[m])
- The second step involves a determination of whether the person can actually perform the essential functions of the position.
This April, the Ninth Circuit Court of Appeals reviewed a lower court’s decision involving an employee who claimed that she has been terminated in violation of the ADA while on a leave of absence (basically, a failure to provide leave as a reasonable accommodation case). However, after the termination, her employer discovered that the employee did not possess the required educational degree for her Technical Writer position (despite her representation during the hiring process that she did possess the required degree). Uh-oh.
The employee worked for a military contractor. The contractor’s agreement with the military specifically stated that the contractor could not bill the military for the work of Technical Writers if they did not possess the required degree.
The EEOC, which was not a party to the case, submitted a “friend of the court” brief asserting that since the employer did not discover the misrepresentation until after they had taken the allegedly discrimination termination action (a phenomena known as “after acquired evidence”), the only impact the misrepresentation could have would be to potentially lower the employee’s damages. The EEOC and the employee argued that the application of the two-step qualified individual test is limited to the facts known at the time the allegedly discriminatory termination decision was made (and the fact that the employee had misrepresented having the required degree was not known at the time of termination).
However, the Ninth Circuit—the famously pro-employee west coast federal appeals court—didn’t buy the EEOC’s and the employee’s argument. While the employee must show she was qualified at the time of the adverse action, the court held that ADA doesn’t limit the qualification determination to the facts known by the employer when the adverse action occurred.
The employee also pointed to a previous U.S. Supreme Court decision that limited the use of after acquired evidence to excuse employers’ discriminatory acts under the Age Discrimination in Employment Act. However, the Ninth Circuit didn’t go for this argument either, focusing on the unique statutory requirements of the ADA compared to other EEO statutes: “the same is not true of the qualification inquiry [under the ADA],” wrote the court, stating that an “employer’s ignorance cannot create a credential where there is none.”
The court also found that the issue of whether there is a legitimate, non-discriminatory reason for the employee’s termination is only reached after the employee establishes a prima facie case, which includes passing the qualified individual test. In other words, the employee’s failure to demonstrate that she met job prerequisites stopped the analysis before the question of whether her termination was discriminatory could be considered.
The Ninth Circuit also reproved the EEOC for the inconsistent position it took in its brief, stating: “to the extent the EEOC wants us to disregard the prerequisites step of its two-step inquiry for determining who is a qualified individual under the ADA, it could reconsider its own implementing regulations and interpretive guidance that elaborated upon the statutory definition of “qualified individual.””
This ruling from the normally pro-employee Ninth Circuit is good news for employers by confirming that employees pursuing ADA claims must first demonstrate that they meet the bona fide prerequisites for the position in question.
The decision is: Anthony v. TRAX International Corp., No. 18-15662 (9th Cir. April 17, 2020)
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As an employment attorney with nearly 30 years of experience, I present effective and engaging seminars and webinars for employers around the country. Please let me know if I can help you with your compliance training needs.
This material should not be construed as legal advice.
What’s a “Qualified Individual” with a Disability under the ADA? The Ninth Circuit Court of Appeals Holds the EEOC to Their Own Definition
As most know, the Americans with Disabilities Act only protects “qualified individuals” with a disability from employment discrimination. But what does it take to be a “qualified individual?” The U.S. Equal Employment Opportunity Commission previously issued interpretive guidance that established a two-step process for determining when someone is a qualified individual:
- “The first step is to determine if the individual satisfies the prerequisites for the position, such as possessing the appropriate educational background, employment experience, skills, licenses, etc.” – Interpretive Guidance on Title I of the Americans With Disabilities Act, 29 CFR Appendix to Part 1630 (1630.2[m])
- The second step involves a determination of whether the person can actually perform the essential functions of the position.
This April, the Ninth Circuit Court of Appeals reviewed a lower court’s decision involving an employee who claimed that she has been terminated in violation of the ADA while on a leave of absence (basically, a failure to provide leave as a reasonable accommodation case). However, after the termination, her employer discovered that the employee did not possess the required educational degree for her Technical Writer position (despite her representation during the hiring process that she did possess the required degree). Uh-oh.
The employee worked for a military contractor. The contractor’s agreement with the military specifically stated that the contractor could not bill the military for the work of Technical Writers if they did not possess the required degree.
The EEOC, which was not a party to the case, submitted a “friend of the court” brief asserting that since the employer did not discover the misrepresentation until after they had taken the allegedly discrimination termination action (a phenomena known as “after acquired evidence”), the only impact the misrepresentation could have would be to potentially lower the employee’s damages. The EEOC and the employee argued that the application of the two-step qualified individual test is limited to the facts known at the time the allegedly discriminatory termination decision was made (and the fact that the employee had misrepresented having the required degree was not known at the time of termination).
However, the Ninth Circuit—the famously pro-employee west coast federal appeals court—didn’t buy the EEOC’s and the employee’s argument. While the employee must show she was qualified at the time of the adverse action, the court held that ADA doesn’t limit the qualification determination to the facts known by the employer when the adverse action occurred.
The employee also pointed to a previous U.S. Supreme Court decision that limited the use of after acquired evidence to excuse employers’ discriminatory acts under the Age Discrimination in Employment Act. However, the Ninth Circuit didn’t go for this argument either, focusing on the unique statutory requirements of the ADA compared to other EEO statutes: “the same is not true of the qualification inquiry [under the ADA],” wrote the court, stating that an “employer’s ignorance cannot create a credential where there is none.”
The court also found that the issue of whether there is a legitimate, non-discriminatory reason for the employee’s termination is only reached after the employee establishes a prima facie case, which includes passing the qualified individual test. In other words, the employee’s failure to demonstrate that she met job prerequisites stopped the analysis before the question of whether her termination was discriminatory could be considered.
The Ninth Circuit also reproved the EEOC for the inconsistent position it took in its brief, stating: “to the extent the EEOC wants us to disregard the prerequisites step of its two-step inquiry for determining who is a qualified individual under the ADA, it could reconsider its own implementing regulations and interpretive guidance that elaborated upon the statutory definition of “qualified individual.””
This ruling from the normally pro-employee Ninth Circuit is good news for employers by confirming that employees pursuing ADA claims must first demonstrate that they meet the bona fide prerequisites for the position in question.
The decision is: Anthony v. TRAX International Corp., No. 18-15662 (9th Cir. April 17, 2020)
—
As an employment attorney with nearly 30 years of experience, I present effective and engaging seminars and webinars for employers around the country. Please let me know if I can help you with your compliance training needs.
This material should not be construed as legal advice.