Recently, a split has continued among the Circuit Courts as to whether Section 504 of the Rehabilitation Act permits employment discrimination suits by independent contractors. On February 1, 2016, the Fifth Circuit joined the Ninth Circuit and held that it does. The decision is a good reminder that the Rehabilitation Act has a broader reach than the Americans with Disabilities Act (“ADA”). The case is Flynn v. Distinctive Home Care, Inc., Case No. 15-50314 (5th Cir. Feb. 1, 2016).
Dr. Rochelle Flynn, a pediatrician, provided medical services to patients of Distinctive Home Care, Inc. (“Distinctive”) at Lackland Air Force Base. Distinctive’s agreements with Flynn and the Air Force Base made clear that Flynn was an independent contractor.
On May 15, 2013, Flynn was diagnosed with Autism Spectrum Disorder-Mild (“ASD”), formerly known as Asperger’s syndrome. Around the same time, Distinctive received complaints regarding Flynn’s performance. Distinctive disclosed those complaints to Flynn. In response, Flynn disclosed her diagnosis. Flynn’s services were terminated later that month and she sued under the Rehabilitation Act, claiming her termination was wrongful discrimination due to her disability, that she was subjected to a hostile work environment and that she was not given reasonable accommodations.
The District Court held that Flynn could not maintain an action under the Rehabilitation Act because she was not employed by Distinctive. The Fifth Circuit disagreed.
To determine who can bring a claim under the Rehabilitation Act, the Court compared the language of the Act to the language of Title I of the ADA. Title I allows discrimination claims relating to “job application procedures, the hiring, advancement or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” This language is widely held to limit discrimination claims to those that can be brought by an employee against his or her employer.
The Rehabilitation Act, on the other hand, bans discrimination “under any program or activity receiving federal financial assistance.” “Program or activity” is defined to include “all of the operations of . . . an entire corporation, partnership, or other private organization, or an entire sole proprietorship.” The Fifth Circuit, agreeing with the Ninth Circuit, concluded that this broad language does not incorporate the ADA requirement that the defendant be the plaintiff’s employer.
Other courts, notably the Eighth Circuit, have ruled the other way. As recently as 2010 the Supreme Court declined to resolve the split.
This decision is a reminder for federal contractors that there are laws other than the ADA that protect against discrimination on the basis of disability. Those laws might protect a wider group of workers than those protected under the ADA. Companies should contact counsel if they have questions about the applicability of those laws or the scope of their protections.
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