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Third Party ADA Interference: Who Can I Sue?

by | Sep 27, 2022 | Disability Discrimination, Employment Discrimination, Employment Law, Federal Law Update |

Under the Americans with Disabilities Act (“ADA”), there is a provision that prohibits actions that interfere with an employee’s rights in the workplace. The provision is a “catchall” that bars an individual from unlawfully coercing, intimidating, threatening, or interfering with your rights in any manner. In a recent employment law decision from the United States Court of Appeals for the Sixth Circuit, which has jurisdiction over federal appeals arising from the states of Kentucky, Michigan, Ohio and Tennessee, the court affirmed that it is not just anyone, but your employer who is barred from interference. But it can be challenging to determine just who your employer is when you have two or more entities attached to your employment.

In Post v. Trinity Health-Michigan, 44 F.4th 572 (6th Cir. 2022), Rachel Post, an anesthesiologist nurse, argued that the interference provision under the ADA did not identify the party barred from interfering and thus is not expressly limited to employers – meaning that she could sue anyone that participated in the interference of her ADA rights. However, as the court points out, broadening this reach to just anyone does not accomplish the intended purpose of the ADA. The court explains that the ADA’s employment subchapter works in conjunction with Title VII’s remedial provisions, so it adopts Title VII’s definitions and purpose – which is to prevent your employer from taking adverse actions against you because of your disability.

How can an employer “interfere” with your rights under the ADA?

Best Disability Accommodation Lawyer Answer: The ADA interference provision states that it is “unlawful to coerce, intimidate, threaten, or interfere…” with any individual in their exercise of “any right granted or protected” by the ADA. 42 U.S.C. sec. 12203(b). These protected rights include disability leave, reasonable disability accommodations, and a workplace environment that is free from harassment and discrimination. But what exactly is considered “interference” under the ADA?

In 2018, Rachel Post sued her former employer, a third party, for interference under the ADA because the University Physician Group had declared bankruptcy and denied her claim. Post worked for St. Joseph Mercy Oakland Hospital for over 20 years, until 2013 when St. Joseph outsourced its anesthesiology services to the Wayne State University Physician Group. At that time, Post’s employment with St. Joseph was effectively transferred to the University Physician Group. In October 2016, while working, Post was injured and had to take medical leave to recover. When she tried to return with an accommodation for her resulting disability, she was met with relentless obstacles from both the University, her employer, and St. Joseph’s, the place she worked. Eventually, she was terminated before she could return to work.

Since the provision is a “catchall” of sorts, there are a few different actions or behaviors that could constitute interference – so it is more important to ask, “how has my employer stopped me from exercising my rights under the ADA?” Have you tried to or succeeded in receiving an accommodation and now your employer is threatening to cut your hours because of it? That is interference with your ADA rights. Did you apply for disability leave, but your employer convinced you not to take it so you could continue to work? That is interference with your ADA rights.

In Post’s case, when she was cleared to work with accommodations, her employer didn’t reach out for three months, failed to approve her disability accommodation, refused to let her use one of their labs so she could simulate the procedure before meeting with patients again, and denied her access to renew her credentials via St. Joseph’s labs. All of these can be forms of interference. Keep in mind – if whatever your employer is doing prevents you from managing your disability or working a job with it, the action might be an interference with your rights under the ADA.

Who is an “employer” under the ADA interference provision?

Top ADA Attorney Answer: The legal definition of an employer is very similar to its common definition: An employer is someone who has employees. An employee is employed by the employer. In fact, as the court notes, Title VII defines the employee-employer relationship in just that way. Title VII further provides that an aggrieved party may file with the EEOC against four entities, all standing in place of the ‘employer.’ Usually, it is clear who is an employer in a given employment cause of action – however, it can be tricky when traditional “employer” tasks are performed by third party companies.

Courts have historically held that Title VII only allows for suits against employers, not third parties. The Sixth Circuit argued that the ADA’s employment subchapter clearly adopted Title VII’s remedial framework, which makes sense in the context of the ADA and further clarifies why the ADA uses the phrase “covered entity” when referring to potential respondents; it is to account for the subchapters of the ADA that govern government-services and public accommodations.

In Post’s case, she had worked for St. Joseph’s for over 20 years. Although her department had been outsourced to another entity, she was still working in the same facility that she had since she started her employment with St. Joseph’s. But she was now an employee of the University Group, not St. Joseph’s. St. Joseph’s officially became a third party in that moment. In short, an employer is someone who has employees, signs your paycheck, supplies your benefits, and has substantial control over your employment – at least for the purposes of the ADA.

What if the only employer I can get relief from is technically not my “employer” under the ADA?

Best Disability Discrimination Attorney Answer: Post’s employment situation is not unique. Many employees experience a similar phenomenon; you begin working for one employer, the business is either bought or outsourced to another, and the employee is suddenly working for an entirely new employer, but operating in the same environment, with the same people, in the same position as the former. Technically, you are no longer an employee of that company although your day-to-day work life may not have changed at all.

Post argued that because St. Joseph’s was her former employer and engaged in interference of her ADA rights, they should also be held liable under the ADA interference provision, especially since the provision does not specify employer. As we can see from above, the legislative history indicates that congress intended the interference provision to adopt Title VII’s interpretations and remedial measures. As such, it isn’t fair to bring St. Joseph’s, a third party, into a lawsuit that should be brought against Post’s employer. But Post is still left standing in the dust because her actual employer didn’t have the funds to pay any sort of award for her suffering.

If you’re in a similar situation as Post, hope is not all lost. Title VII’s definition of employer, while true, is too self-explanatory to provide legal professionals and courts with context of what makes an individual or entity an employer or an employee as a matter of law. As such, courts have “looked to common-law understandings of the employment relationship” to supplement any shortcomings in the law. The Sixth Circuit points out that under this reasoning, a former employer or third party could be categorized as a “statutory employer” for purposes of the ADA interference provision.

A statutory employer is one who acts like an employer, meaning they take on traditional ‘employer’ duties, provide some tools or facility for your employment, or otherwise hold themselves out as your employer. If Post had argued that St. Jospeh’s was a statutory employer under the law, she probably would have had more success in court because she had worked in the same department for 30 years and the hospital held itself out as her employer to patients.

If the person interfering with your rights is a third party and in no way an employer, you may still be able to pursue legal action under the ADA’s interference provision, but there must be intent. The ADA’s provision provides for a legal test to determine whether a third party has acted intentionally to interfere with an individual’s ADA rights or has harbored discriminatory bias against a plaintiff. If either of those are present, it is still possible to pursue a claim under the ADA interference provision.

How can I be sure what I’m experiencing is disability discrimination, retaliation, or ADA interference?

Best Employment Lawyer Answer: If you are experiencing discrimination at your workplace, but aren’t sure whether it rises to an actual legal claim, call the right attorney to schedule a free and confidential consultation with The Spitz Law Firm. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical). Call our lawyers in Ohio, Michigan and North Carolina to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.


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