I. A reasonable jury could conclude that firing Bailey for testing positive on a drug screen caused by his medication violated the ADAAA because disparate treatment based on the consequence or manifestation of a known impairment is disability discrimination under the ADAAA. 11

II. Viewing the facts in the light most favorable to Bailey, Select Staffing knew or should have known that the false positive for drugs was caused by Bailey’s impairment, yet fired him anyway. 19

III. The “transitory and minor” exception to the “regarded as” prong of the ADAAA is inapplicable in this case because it is an affirmative defense and Select Staffing has not asserted it; moreover, the exception only applies to impairments that are both objectively transitory and minor, and Bailey’s impairment—HIV—is neither transitory nor minor. 25

CONCLUSION.. 28

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Page(s)

Cases

Brohm v. JH Props., Inc., 149 F.3d 517 (6th Cir. 1997)................................. 17

Chandler v. Specialty Tires of Am., Inc.,
134 F. App’x 921 (6th Cir. 2005)....................................................... passim

Den Hartog v. Wasatch Acad., 129 F.3d 1076 (10th Cir. 1997)...................... 14

Despears v. Milwaukee County, 63 F.3d 635 (7th Cir. 1995).......................... 17

Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117 (10th Cir. 2003)............ 14

Donald v. Sybra, Inc., 667 F.3d 757 (6th Cir. 2012)....................................... 21

Gambini v. Total Renal Care, Inc., 486 F.3d 1087 (9th Cir. 2007)........... 14, 16

Haskell v. Washington Twp., 864 F.2d 1266 (6th Cir. 1988)........................... 26

Hilton v. Wright, 673 F.3d 120 (2d Cir. 2012)................................................ 22

Hohider v. UPS, Inc., 574 F.3d 169 (3d Cir. 2009)......................................... 13

Holiday v. City of Chattanooga, 206 F.3d 637 (6th Cir. 2000)....................... 24

Humphrey v. Mem’l Hosp. Ass’n, 239 F.3d 1128 (9th Cir. 2001).............. 14, 16

Jackson v. Veterans Admin., 22 F.3d 277 (11th Cir. 1994).............................. 14

Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876 (6th Cir. 1996).................. 19, 20

Kroll v. White Lake Ambulance Auth., 691 F.3d 809 (6th Cir. 2012).............. 25

Lewis v. Humboldt Acquisition Corp.,

.... 681 F.3d 312 (6th Cir. 2012) (en banc)...................................................... 19

McMillan v. City of New York, 711 F.3d 120 (2d Cir. 2013)..................... 15, 16

Monette v. Elec. Data Sys. Corp., 90 F.3d 1173 (6th Cir. 1996)................ 19, 21

Powers v. USF Holland, Inc., 667 F.3d 815 (7th Cir. 2011)........................... 13

School Bd. of Nassau County v. Arline, 480 U.S. 273 (1987).................... 14, 24

Siefken v. Village of Arlington Heights, 65 F.3d 664 (7th Cir. 1995)............... 17

Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999).......................... 20, 21, 23

Teahan v. Metro-North Commuter R.R. Co. (Teahan II),

.... 80 F.3d 50 (2d Cir. 1996).......................................................................... 18

Teahan v. Metro-North Commuter R.R. Co.,

.... No. 88-5376, 1994 WL 719720 (S.D.N.Y. Dec. 27, 1994)........................ 18

Teahan v. Metro–North Commuter R.R. Co.,
951 F.2d 511 (2d Cir. 1991)................................................................ passim

Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184 (2002).............. 12

Vande Zande v. Wisc. Dep’t of Admin., 44 F.3d 538 (7th Cir. 1995)............... 14

Watts v. UPS, 378 F. App’x 520 (6th Cir. 2010)............................................ 12

Williams v. Widnall, 79 F.3d 1003 (10th Cir. 1996)........................................ 17

Statutes

Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12101 et seq. passim

Americans with Disabilities Act Amendments Act of 2008 (ADAAA),

.... Pub. L. 110-325, 122 Stat. 3553 (2008).............................................. passim

.... 42 U.S.C. § 12101(1)................................................................................. 12

.... 42 U.S.C. § 12101 note (a)(4).................................................................... 12

.... 42 U.S.C. § 12101 note (a)(8).................................................................... 12

.... 42 U.S.C. § 12102(3)(A)...................................................................... 12, 13

.... 42 U.S.C. § 12102(3)(B)............................................................................ 26

.... 42 U.S.C. § 12102(4)(A)............................................................................ 12

.... 42 U.S.C. § 12111(8)................................................................................. 16

.... 42 U.S.C. § 12112(a)................................................................................. 17

Rules and Regulations

29 C.F.R. § 1630.2(h)(1)........................................................................... 13, 21

29 C.F.R. § 1630.15................................................................................. 26, 27

Fed. R. Civ. P. 8(c).......................................................................................... 26

Other Authorities

154 Cong. Rec. H6067 (2008).................................................................. 21, 28

154 Cong. Rec. S8841 (daily ed. Sept. 16, 2008)........................................... 12

EEOC, Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations (Oct. 10, 1995)....................................................... 25

H.R. Rep. 110-730, pt. 1 (2008)......................................................... 11, 24, 27

Kaiser Family Foundation, HIV/AIDS at 30: A Public Opinion Perspective (June 2011)................................................................................................................... 24

Kevin Barry, Toward Universalism: What the ADA Amendments Act Can Do and Can’t Do for Disability Rights, 31 Berkeley J. Emp. & Lab. L. 203 (2010).... 26, 27

STATEMENT OF INTEREST

Congress has charged the Equal Employment Opportunity Commission with administering, interpreting, and enforcing Title I of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12101 et seq.

This case is among the first to construe the ADA as recently amended by the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), Pub. L. 110-325, 122 Stat. 3553 (2008). Given that and because this case raises important questions under the amended ADA, the EEOC offers its views. Specifically, this case raises three important questions: (1) Whether the ADAAA’s modified “regarded as” prong, which proscribes discrimination because of a physical impairment, is violated when an employer terminates an individual because of a consequence of an impairment; (2) Whether such an employer must have knowledge of the specific degree of limitations the impairment causes before it can be held liable under the ADAAA or whether knowledge that the consequence is caused by an impairment is sufficient; and (3) Whether the transitory and minor exception to the “regarded as” prong requires the plaintiff to demonstrate that the employer subjectively believed that the impairment was neither transitory nor minor or whether the employer bears the burden of demonstrating that the impairment is objectively both transitory and minor. The EEOC files this brief pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure.

STATEMENT OF THE ISSUE

Terminating an employee for a physical impairment is disability discrimination under the ADA Amendments Act of 2008 (ADAAA). This Court, as have others, has also recognized that firing someone for the consequences of a disability violates the ADA. Bailey takes medication for his HIV, which caused a false positive for illegal drugs on a workplace drug test. Bailey repeatedly told Select Staffing that the false positive was caused by the medication, but it fired him anyway. Could a reasonable jury conclude that Bailey’s termination violated the ADAAA?

STATEMENT OF THE CASE

This is an appeal from an award of summary judgment on an ADAAA claim in favor of Select Staffing.

I. Statement of the Facts

Real Time Staffing Services operates a temporary staffing agency under the name Select Staffing, which provides temporary workers to client companies. R.27-2 (Def. Facts), PageID 90; R.33 (Bailey Response to Def. Facts), PageID 347. Gaylus Bailey began working for Select Staffing out of its Memphis office sometime between 2005 and 2007. Id. In 2006, he was diagnosed with HIV, but did not tell Select Staffing. R.27-2 (Def. Facts), PageID 91; R.33 (Bailey Response to Def. Facts), PageID 348.

In December 2009, Select Staffing assigned Bailey to work at Sergeant’s Pet Care Products. R.27-2 (Def. Facts), PageID 91; R.33 (Bailey Response to Def. Facts), PageID 349. There, he worked in shipping and receiving—loading and unloading trucks, and operating a forklift, which he had learned to do while serving in the military. R.27-3 (Bailey Dep.), PageID 108–09. His on-site supervisor considered him a “good worker.” R.32-5 (Bailey Dep.), PageID 220.

Sergeant’s had a “drug-free workplace” policy, which dictated, among other things, that temporary workers like Bailey would be terminated if they failed a drug test. R.27-2 (Def. Facts), PageID 93. On March 11, 2010, Sergeant’s conducted a random drug test of all of its employees and the Select Staffing temporary workers, including Bailey. R.33 (Bailey Response to Def. Facts), PageID 349.

Thirty minutes after the test, Bailey was told that he had tested positive for cannabinoid. R.32-5 (Bailey Dep.), PageID 221. A Human Resources Manager at Sergeant’s along with a person from Select Staffing—whom Bailey did not know—told him to leave the premises. Id. PageID 221–22. The Sergeant’s HR manager told Bailey that a medical review officer from the testing company would contact him within 72 hours. Id. PageID 222.

Bailey left and immediately went to his treating physician, who gave him a letter, dated March 11, 2010, that explained that Bailey was taking prescription medicine that “may cause a positive drug screen.” R.32-3 (March 11 medical note), PageID 213. The letter further requested that should the company have any further questions, it should contact Bailey’s treating medical office. Id.

Bailey immediately took that letter to his on-site supervisor at Sergeant’s and to Select Staffing’s Memphis office. R.32-5 (Bailey Dep.), PageID 218–19. Peggy Sue Franklin, the Human Resources manager at Select Staffing’s Memphis office and Bailey’s supervisor, was on vacation so he did not give the letter directly to her. Id. PageID 218. Instead it appears he gave the letter to Felicia Jones, an assistant Human Resources manager at that branch, and told her that his false positive was caused by a “medical condition.” Id. PageID 219. Jones in turn told Watkins that Bailey had had a medical condition that caused the false positive. R.32-2 (Franklin Dep.), PageID 210. And Watkins in turn relayed Bailey’s statement to Franklin that a medical condition had caused the false positive. Id.

Franklin, for her part, testified that Watkins told her that Bailey had a kidney illness that caused the false positive. Id. PageID 205–06, 210. (Bailey denied telling Watkins that he had a kidney illness, only that he had a “medical condition.” R.32-5 (Bailey Dep.), PageID 227.) Although the relaying of information distorted Bailey’s message, what is clear is that Franklin knew that Bailey was contending that his false positive was caused by a medical condition. R.32-2 (Franklin Dep.), PageID 205–06, 210. Indeed, she acknowledged that she was told that Bailey had “an ongoing medical condition.” Id. PageID 210–11. Franklin, despite knowing this, never asked Bailey about it. Id. PageID 206.

The medical review officer from the testing company never called Bailey as promised. R.32-5 (Bailey Dep.), PageID 223. But Bailey called the medical review officer at the 1-800 phone number that was provided to him by Sergeant’s HR manager and spoke with a woman who answered the phone—Bailey did not get her name. Id. He told her that he was taking medication for a medical condition, which would cause a false positive, and that he had letters from his doctor stating that. Id. PageID 223–24. She told him that whatever determination was made about the drug test was final. Id. PageID 223.

Bailey followed that with a second letter from his treating physician, dated March 15, 2010, which explicitly stated that Bailey was on a prescription medication which “may result in a false positive for marijuana on a urine drug screen.” R.32-4 (March 15 medical note), PageID 215. He personally delivered this letter to Franklin. R.32-5 (Bailey Dep.), PageID 219, 226. Franklin testified that she refused the letter, but Bailey remembers placing the letter in “her hands.” Id. PageID 219.[1] Despite the letters, Franklin testified that the decision to terminate Bailey for failing a drug test was made on March 17, 2010, a “couple days” after he attempted to deliver the letters to her. R.27-4 (Franklin Dep.), PageID 141; R.32-2 (Franklin Dep.), PageID 199.

The letters do not reveal that Bailey was HIV positive or the specific medication that he was taking, but do make clear that he was being treated with “prescribed medication.” R.32-3 (March 11 medical note), PageID 213; R.32-4 (March 15 medical note), PageID 215. Bailey was in fact taking a drug—known by its brand name as Atripla—to treat his HIV, a drug which indeed can cause false positives for cannabis. R.32-6 (Dec. of Bailey’s Nurse), PageID 230.

After losing his job, Bailey was unable to pay his rent and was eventually evicted from his home and moved into a hotel for a time. R.27-3 (Bailey Dep.), PageID 102. Before ultimately obtaining more gainful employment, he worked odd jobs—cutting grass, washing cars, and raking yards—to pay the hotel rent. Id.

II. District Court Decision

Bailey sued Select Staffing, alleging that it discriminated against him in violation of the ADA “by terminating his employment for a manifestation of his disability.” R.1, at 5 (Complaint).

After discovery, Select Staffing moved for summary judgment, arguing that Bailey was not disabled under the ADA because his HIV did not substantially limit any major life activities; that Select Staffing had no reason to believe that he was disabled because he did not disclose his HIV status; and that he was terminated for a legitimate, nondiscriminatory reason: failing a drug test. R.27-1 (Memo. Summary Judgment Motion), PageID 78–88.

Bailey countered with, among other things, that he was disabled under the “regarded as” prong because he had a medical impairment: HIV; that Bailey’s statement and letters indicating his false positive was caused by a medical condition put Select Staffing on sufficient notice; and that Select Staffing’s termination did not come under the ADA’s illegal drug use safe harbor because Bailey was, in fact, using legal medication. R.32 (Bailey Opp. to Summary Judgment Motion), PageID 170–83.

The district court initially denied Select Staffing’s motion in part and granted it in part. In its first order, the court concluded that there was no discrimination on the basis of his HIV because it did not know he had HIV; that Select Staffing did not discriminate against him on the basis of a perceived kidney disability because Bailey himself alleged that he was terminated because of the false positive drug test; and finally, the court construed Bailey’s argument about the illegal drug use safe harbor as meaning that the ADA prohibits discrimination when the employer believes the employee is using drugs and regards such use as an an impairment, and denied summary judgment on that “perceived drug use as an impairment” claim. R.35 (Order Granting and Denying Summary Judgment), PageID 369–89.

Bailey moved for revision of that order, arguing that the court misunderstood his claim. R.44 (Motion for Revision), PageID 446–47. Bailey argued that he was not contending in the alternative that he was discriminated against on the basis of HIV, a kidney condition, or legal drug use. Rather, his claim was that he had an impairment, HIV; he failed the drug test as a consequence of that impairment; and Select Staffing knew that he failed the drug test because of an impairment but fired him anyway. R.44-1 (Memo. supporting revision), PageID 448–55. Thus, his ADAAA claim was simply that he was fired because of his impairment. Id. PageID 455.

The district court responded by granting summary judgment to Select Staffing, reiterating that Select Staffing did not discriminate on the basis of Bailey’s HIV because it did not know that he had HIV. R.55 (Summary Judgment Order), PageID 551–54. The court concluded that Select Staffing was entitled to summary judgment on the “regarded as” claim because Bailey failed to demonstrate that Select Staffing knew that his impairment was neither transitory nor minor, reasoning that it was the plaintiff’s burden to demonstrate that the impairment is neither transitory nor minor. Id. PageID 557–59. The court also rejected Bailey’s argument that Select Staffing violated the ADA for firing him because of a manifestation of his impairment, because, according to the court, “there is no evidence that Select Staffing had any knowledge that Bailey suffered from an impairment, actual or perceived, as defined in the ADAAA. At best, Select Staffing knew that Bailey took prescription medication. This court is not prepared to find that terminating an employee who takes prescription medicine and failed a drug test is a violation of the ADAAA.” Id. PageID 560. The court next granted summary judgment on the “perceived drug use as an impairment” claim—even though Bailey made clear he was not asserting such a claim—on the ground that Select Staffing had no reason to know that Bailey had an impairment. Id. PageID 560–62. Finally, the court concluded that even if Bailey had made out a prima facie case, Select Staffing had a legitimate non-discriminatory reason for firing him: failing a drug test. Id. PageID 562–63.

SUMMARY OF ARGUMENT

Courts, including this one, have recognized that discriminating against an employee for the consequences, manifestations, or symptoms of a disability known to be caused by a disability is disability discrimination under the ADA, unless those consequences, manifestations, or symptoms otherwise render the employee unable to perform the essential functions of the job. Because the ADAAA’s new definition of “regarded as” coverage now proscribes discrimination because of an impairment—which includes any physiological disorder or condition—discrimination because of the known consequences, manifestations, or symptoms, of an impairment is now also prohibited. Select Staffing concedes that Bailey’s false positive did not render him unqualified. Therefore, because his false positive was caused by medication he was taking for an impairment, and Select Staffing was aware that the false positive was caused by medication for a medical condition, a reasonable jury could conclude that Select Staffing violated the ADAAA.

The district court nevertheless granted summary judgment to Select Staffing, reasoning that because Select Staffing did not know the precise nature of Bailey’s impairment—it did not know that Bailey had HIV—it could not have discriminated against him because of his impairment. This was error. While a pre-amended ADA plaintiff asserting “regarded as” coverage would have had to demonstrate that the employer knew or believed that the impairment was substantially limiting, under the ADAAA, the relevant question is whether Select Staffing took an adverse action because of an actual or perceived impairment. Once Select Staffing was put on notice that the false positive was because of a prescription medication for a medical condition (regardless of what the condition was), that was enough to put Select Staffing on notice that Bailey had an impairment and that its “drug-free” policy as enforced operated to discriminate against a person with an impairment.

Finally, the district court also granted summary judgment because, it asserted, Bailey failed to demonstrate that Select Staffing perceived him as having an impairment that was neither transitory nor minor. This was error for four reasons. First, the transitory and minor exception is an affirmative defense. Select Staffing waived the affirmative defense because it did not assert it. Second, even if not waived, Select Staffing made no showing that Bailey’s HIV was transitory and minor. Third, the exception applies only to impairments that are objectively both transitory and minor; Select Staffing’s subjective perceptions are of no import for purposes of this exception. Therefore, because Bailey’s impairment—HIV—was neither objectively transitory nor minor, this exception does not apply. And fourth, Congress and the implementing regulations make clear that this exception should be construed very narrowly. Because HIV could never be considered transitory and minor, this exception should never be employed in cases involving HIV.

ARGUMENT

I. A reasonable jury could conclude that firing Bailey for testing positive on a drug screen caused by his medication violated the ADAAA because disparate treatment based on the consequence or manifestation of a known impairment is disability discrimination under the ADAAA.

In passing the ADAAA, Congress sought to “restore the intent and protections of the [original] Americans with Disabilities Act,” which the courts, Congress asserted, interpreted too narrowly and “inconsistent with congressional intent,” leaving vulnerable many whom the drafters of the ADA intended to protect. H.R. Rep. 110-730, pt. 1, at 1, 9 (2008), available at http://www.law.georgetown.edu/archiveada/documents/HRRep110-730Part1.pdf; see also 42 U.S.C. § 12101 note (a)(8); 42 U.S.C. § 12101 note (a)(4); 154 Cong. Rec. S8841 (daily ed. Sept. 16, 2008) (Statement of the Managers).

To accomplish that purpose, the ADAAA substantially broadened the definition of “disability.” See Watts v. UPS, 378 F. App’x 520, 525 (6th Cir. 2010) (noting the changes in a pre-ADAAA case). The ADAAA now states that the “[t]he definition of disability . . . shall be construed in favor of broad coverage of individuals . . . to the maximum extent permitted by the terms of this chapter,” 42 U.S.C. § 12102(4)(A), rejecting the Supreme Court’s view that the ADA’s terms should be “interpreted strictly to create a demanding standard for qualifying as disabled,” Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 196 (2002).

The ADAAA retains the ADA’s three-prong definition of disability:

The term disability means, with respect to an individual:

(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;

(B) a record of such an impairment; or

42 U.S.C. § 12101(1) (changes in italics). But the underlying definitions of the first and third prongs are now substantially different.

The new prong three is implicated in this case. Under the ADAAA,

An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

42 U.S.C. § 12102(3)(A); see also Powers v. USF Holland, Inc., 667 F.3d 815, 823 (7th Cir. 2011) (quoting 42 U.S.C. § 12102(3)(A)); Hohider v. UPS, Inc., 574 F.3d 169, 188 (3d Cir. 2009) (same).

A “physical or mental impairment” includes

Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine.

29 C.F.R. § 1630.2(h)(1) (emphasis added).

Here, Bailey was terminated because he failed a drug test and the failure was the result of his taking medication for an underlying impairment—here, a physiological disorder or condition: HIV. The question therefore is whether terminating someone for a consequence of his impairment means that he has been fired “because of an actual or perceived physical or mental impairment.” 42 U.S.C. § 12102(3)(A). The answer, the Commission submits, is yes.

Courts, including this one, have recognized that terminating an otherwise qualified employee based on a consequence of the employee’s disability is disability discrimination. See, e.g., Chandler v. Specialty Tires of Am., Inc., 134 F. App’x 921, 928–30 (6th Cir. 2005) (concluding that terminating an employee for an attempted suicide caused by her apparent mental illness is disability discrimination); Gambini v. Total Renal Care, Inc., 486 F.3d 1087, 1090 (9th Cir. 2007) (concluding that the district court erred in refusing to provide this jury instruction: “Conduct resulting from the disability is part of the disability and not a separate basis for termination.”); Humphrey v. Mem’l Hosp. Ass’n, 239 F.3d 1128, 1139–40 (9th Cir. 2001) (articulating the rule applied in Gambini); Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1134 (10th Cir. 2003) (“The ADA thus protects an individual from adverse employment action based on conduct related to her illness[.]” (internal quotation marks omitted)); Den Hartog v. Wasatch Acad., 129 F.3d 1076, 1086–87 (10th Cir. 1997) (distinguishing consequences of disability from disability “makes no sense”); Jackson v. Veterans Admin., 22 F.3d 277, 281 (11th Cir. 1994) (“[D]ischarge[] because of a symptom of his handicap is . . . the same as taking action solely on account of [his] handicap.”); cf. School Bd. of Nassau County v. Arline, 480 U.S. 273, 282 (1987) (“We do not agree . . . that, in defining a handicapped individual under [the Rehabilitation Act], the contagious effects of a disease can be meaningfully distinguished from the disease’s physical effects on a claimant . . . .”); Vande Zande v. Wisc. Dep’t of Admin., 44 F.3d 538, 544 (7th Cir. 1995) (concluding that the “opportunistic diseases” that arise in someone with AIDS are part of the disability itself).

This principle was first articulated in the Second Circuit’s decision in Teahan v. Metro–North Commuter Railroad Co., 951 F.2d 511 (2d Cir. 1991). In that case, the Second Circuit reversed the lower court’s ruling that an alcoholic employee who had been fired because of excessive absenteeism—which was caused by his alcoholism—had not been terminated because of his disability. Id. at 516. The court analogized the case to that of a hypothetical employee with a limp that caused him to make a “thump” noise when walking, stating that the limping individual’s employer could not escape liability by articulating that it fired the employee because of the noisy “thump,” rather than the limp. Id. at 516–17. The court held that termination based on a “conduct or circumstance that is a manifestation or symptomatic” of an employee’s disability is disability discrimination. Id. at 517; see also McMillan v. City of New York, 711 F.3d 120, 129 (2d Cir. 2013) (reaffirming the rule of Teahan).

Therefore, terminating Bailey for failing the drug test where the failure was known to have been caused by medication that he was taking for an impairment is not a legitimate nondiscriminatory reason, as the district court asserted. Rather, it is an admission of discrimination under the ADAAA. See McMillan, 711 F.3d at 129 (“When the parties agree that the employer complains of conduct that is the direct result of the employee’s disability, however, there is no need to evaluate whether the employer’s adverse employment action made in response to that conduct is pretextual.”); Humphrey, 239 F.3d at 1139–40 (“[C]onduct resulting from a disability is considered part of the disability, rather than a separate basis for termination.”).

There is an important caveat to the rule of Teahan: if the conduct or circumstance that is a manifestation or symptom of the disability (and now under the ADAAA, a manifestation or symptom of an impairment) otherwise renders the employee unqualified to perform the essential functions of the job, terminating the employee for the conduct or circumstance would not violate the ADAAA. See Teahan, 951 F.2d at 517; see also Chandler, 134 F. App’x at 929 (stating that an employer may not “rightfully fire an employee for disability-related conduct . . . so long as the employee can satisfactorily perform the essential functions of his job”); Gambini, 486 F.3d at 1095 (noting that employees are not provided with “absolute protection from adverse employment actions based on disability-related conduct” because they must still show that they are qualified).

That is because the employee must show not only that he is covered under the “regarded as” prong, but also that he is a “qualified individual,” that is, he can perform the essential function of the job. See 42 U.S.C. § 12111(8) (defining “qualified individual”). The ADAAA requires that employers not discriminate against employees with disabilities (and now impairments), which includes the consequences, manifestations, and symptoms of those impairments, but this protection only extends to those employees who can perform the “essential functions of the job.” See 42 U.S.C. § 12112(a) (proscribing discrimination against a “qualified individual”). If the manifestation of the impairment renders the employee unable to perform the essential functions of the job, the employee is not protected by the ADAAA. See, e.g., Brohm v. JH Props., Inc., 149 F.3d 517, 521 (6th Cir. 1997) (terminating an anesthesiologist who, because of sleep apnea, falls asleep during surgery would not violate the ADAAA; the anesthesiologist is no longer capable of performing the essential functions of the job); Williams v. Widnall, 79 F.3d 1003, 1007 (10th Cir. 1996) (holding that the Rehabilitation Act did not prohibit an employer from firing an employee for egregious conduct affecting the employee’s “standard of performance,” even where such conduct resulted from a disability); Despears v. Milwaukee County, 63 F.3d 635, 637 (7th Cir. 1995) (affirming alcoholic plaintiff’s demotion because he lost his driver’s license as a result of driving drunk); Siefken v. Village of Arlington Heights, 65 F.3d 664, 667 (7th Cir. 1995) (upholding summary judgment for an employer that fired a police officer for failing to control his diabetes, which caused the officer to carelessly drive his squad car at high speeds in residential areas).

Indeed, even in Teahan, the court made clear that if the factfinder concluded that the absenteeism caused by the alcoholism rendered the employee unable to perform the essential functions of the job, no liability would lie. 951 F.2d at 516 (“If the consequences of the handicap are such that the employee is not qualified for the position, then a firing because of that handicap is not discriminatory. . . .”). And when the case returned to the Second Circuit after proceedings following the initial remand, it affirmed the lower court’s ruling that Teahan’s absenteeism indeed rendered him unqualified. See Teahan v. Metro-North Commuter R.R. Co. (Teahan II), 80 F.3d 50, 53–55 (2d Cir. 1996); Teahan v. Metro-North Commuter R.R. Co., No. 88-5376, 1994 WL 719720, at *9 (S.D.N.Y. Dec. 27, 1994)

But here, all agree that Bailey was capable of performing the essential functions of the job. In its motion for summary judgment and statement of undisputed facts below, Select Staffing conceded that Bailey was qualified, and did not argue that a false positive for cannabis somehow rendered him unqualified. See R.27-1 (Real Time’s Motion for Summary Judgment); R.27-4, at 20 (interrogatory conceding that Bailey could perform all the essential functions of the job).

To recap the rule the EEOC urges this Court to adopt: terminating an employee for the consequences, manifestations, or symptoms of an impairment is disability discrimination under the ADAAA when the employer knows that the consequences, manifestations, or symptoms are caused by an impairment, unless those consequences, manifestations, or symptoms otherwise render the employee unable to perform the essential functions of the job. Summary judgment therefore should be reversed because Bailey was fired for a false positive which was caused by medication he was taking for an impairment, Select Staffing knew or had reason to know that the false positive was caused by the medication, and the false positive did not render Bailey unqualified.

II. Viewing the facts in the light most favorable to Bailey, Select Staffing knew or should have known that the false positive for drugs was caused by Bailey’s impairment, yet fired him anyway.

Select Staffing nevertheless argued, and the district court agreed, that even though it knew that Bailey was alleging that the false positive was caused by medication he was taking, it is not liable under the ADAAA because it did not know the severity of Bailey’s impairment. But as discussed below, a plaintiff alleging “regarded as” coverage under the ADAAA does not need to prove that the employer knew about the particularities of the impairment. Demonstrating knowledge of an impairment is enough.

To survive summary judgment in an ADA case, this Court requires a plaintiff to demonstrate, among other things, that the employer “knew or had reason to know of [the employee’s] disability.” See, e.g., Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1185 (6th Cir. 1996), abrogated on other grounds by Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012) (en banc). The purpose of this requirement is to show a causal link between the disability (and now impairment) and the challenged discriminatory action. See, e.g., Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 884 (6th Cir. 1996) (“[D]efendant cannot discriminate ‘because of’ a disability if it has no knowledge of the disability.”).

Thus, if Select Staffing had no idea that Bailey’s false positive was caused by an impairment, then Select Staffing would not be liable. Returning to Teahan’s hypothetical: If the employer had no idea that the thumping was because of an impairment, then no liability would lie for firing the noise maker. But when an employer fires an employee after learning that the employee is grappling with some medical problems, the ADAAA is violated if the employer did so on the basis of the medical impairment, regardless of whether the employer knew the extent of the impairment. So the hypothetical employer in Teahan would be liable if he knew the thumping was caused by an impairment even if he did not know that the limping was caused by multiple sclerosis, Parkinson’s Disease, or some other particular impairment.

This demonstrates a key difference between the knowledge (or causation) requirement under the pre-amended ADA and the ADAAA. Under the original ADA, to establish liability under the “regarded as” prong, Bailey would have had to show that Select Staffing knew or believed that his impairment substantially limited a major life activity. Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999), expressly rejected by Pub. L. 110-325, § 2(b)(3), 122 Stat. at 3554. That is because to obtain coverage under the former “regarded as” prong, the plaintiff had to show that the employer believed that the employee was substantially limited in a major life activity. Id.; see also Donald v. Sybra, Inc., 667 F.3d 757, 764 (6th Cir. 2012) (“[T]he [original] version of the ADA makes clear that in order to be regarded as disabled, one must be regarded as having an impairment that limits a major life activity.”). In other words, he would have to demonstrate that the employer had some idea of the severity of the impairment to proceed under a “regarded as” theory.

But the knowledge (or causation) requirement is different for “regarded as” coverage under the ADAAA. Because the ADAAA is violated if an employer fires an employee based on “[a]ny physiological disorder or condition,” 29 C.F.R. § 1630.2(h)(1), and not just ones that substantially limit major life activities, Franklin’s knowledge that Bailey had an impairment and that his impairment caused the false positive on the drug test, demonstrates sufficient knowledge linking his impairment to the decision to fire him. That is all the ADAAA requires. See 154 Cong. Rec. H6067 (2008) (noting that the “regarded as” prong “allow[s] individuals to establish coverage . . . by showing that they were treated adversely because of an impairment, without having to establish the covered entity’s beliefs concerning the severity of the impairment.” (emphasis added)). And, at the very least, Franklin and the rest of Select Staffing “had reason to know” of Bailey’s impairment. See Monette, 90 F.3d at 1185.

The Second Circuit, in Hilton v. Wright—one of the first ADAAA cases to reach a circuit court—recognized that the ADAAA’s “regarded as” prong changed this knowledge (or causation) requirement. See 673 F.3d 120 (2d Cir. 2012). Hilton involved a state prison inmate who sued under Title II of the ADA alleging that state prison officials discriminated against him based on a perceived disability of prior drug addiction by conditioning his treatment for hepatitis C on participation in a substance abuse program. Id. at 123–25. The court noted that “under the old regime” “regarded as” prong, a plaintiff “could survive summary judgment on his ADA claim only if he could raise a genuine issue of material fact about whether [prison officials] regarded him personally as being substantially limited in a major life activity.” Id. at 128. But under the new ADAAA, “he was only required to raise a genuine issue of material fact about whether [officials] regarded him as having a mental or physical impairment. [He] was not required to present evidence of how or to what degree they believed the impairment affected him.” Id. at 129.

Construing the ADAAA as shielding employers who lack full knowledge of an individual’s diagnosis, as the district court did here, would not only run counter to the language and purpose of the ADAAA, as discussed above, but would also create difficult line-drawing problems and a perverse incentive for employers to terminate employees the moment they encounter any medical problem. Under such a rule, terminating a person when she announces that she is going to her doctor for cancer testing because she has a lump in her breast would not violate the ADAAA, while terminating her when she comes back and announces that she has cancer would. Reading the ADAAA that way would not only make it difficult to apply—just how much about the impairment must the employer know before it is proscribed from firing an employee because of the impairment?—but it would also encourage exactly what happened here: An admittedly disabled employee was trying to tell company officials about his medical condition but those officials chose to bury their heads in the sand and refused to accept any further information about the reason for the false positive. If liability turns on how much an employer knows about the impairment, that rule would encourage employers to refuse to learn more about an impairment and take adverse employment actions at the first sign of one.

Allowing such a reading to stand would lead to a particularly harsh result in this case. Here, Bailey kept his HIV status private, a status which, if disclosed, may very well have resulted in his being judged not by his “actual capacity” but on the basis of “myths, fears, and stereotypes,” something the ADA was designed to prevent. See Chandler, 134 F. App’x at 926 (quoting Sutton, 527 U.S. at 489–90). Yet Congress, in enacting the ADAAA, proscribed impairment discrimination—and not just discrimination based on impairments that are substantially limiting—because it recognized that “stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society” continue to negatively affect persons with disabilities and, in many ways, “are just as disabling as the actual impact of an impairment.” H.R. Rep. No. 110-730, pt. 1, at 7, 13. That HIV has resulted in such “stereotypic assumptions” is well-understood and well-chronicled. See, e.g., Holiday v. City of Chattanooga, 206 F.3d 637, 647–48 (6th Cir. 2000) (discussing the “unsubstantiated fears of HIV transmission” and that “individuals with such disabilities are in particular need of statutory protection; otherwise ‘they would be vulnerable to discrimination on the basis of mythology—precisely the type of injury Congress sought to prevent’” (quoting Arline, 480 U.S. at 285)). A recent survey, for example, reports that nearly one in five Americans are “uncomfortable” working with someone with HIV and only half of Americans are “very comfortable” with an HIV-positive co-worker, and twenty-nine percent believe that “it’s people’s own fault if they get AIDS.” Kaiser Family Foundation, HIV/AIDS at 30: A Public Opinion Perspective 7–8 (June 2011), available at http://www.kff.org/kaiserpolls/upload/8186.pdf.

Therefore, requiring Bailey to out himself entirely about a medical condition which continues to carry myths, fears, and stereotypes, before he could be protected by the new prong three—particularly given that the condition did not affect his work performance at all and that he was trying to explain to Select Staffing that the false positive was caused by an impairment—would run counter to the principal purpose of that new protection. That Select Staffing failed to understand the full extent of Bailey’s impairment—in large part because it refused to listen to him—should therefore not shield it from liability.[2]

III. The “transitory and minor” exception to the “regarded as” prong of the ADAAA is inapplicable in this case because it is an affirmative defense and Select Staffing has not asserted it; moreover, the exception only applies to impairments that are both objectively transitory and minor, and Bailey’s impairment—HIV—is neither transitory nor minor.

Finally, the district court reasoned that even if Select Staffing’s knowledge of Bailey’s impairment was sufficient, Select Staffing could not be liabile because Bailey failed to demonstrate that Select Staffing knew that Bailey’s impairment was neither transitory nor minor. This was error.

It is correct that the “regarded as” prong “shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.” 42 U.S.C. § 12102(3)(B). But the district court stated that a plaintiff must demonstrate both that the impairment lasted longer than six months and that the employer knew that it endured for that long. That reading is incorrect for four reasons.

First, the transitory and minor exception to prong three is an affirmative defense; it is not a plaintiff’s burden to prove his condition is not minor or transitory. 29 C.F.R. § 1630.15. Therefore, it must be set forth in the defendant’s responsive pleading, Fed. R. Civ. P. 8(c), and failure to assert it there—as Select Staffing failed to do—generally results in a waiver of that defense, see, e.g., Haskell v. Washington Twp., 864 F.2d 1266, 1273 (6th Cir. 1988).

Second, to establish this defense “a covered entity must demonstrate that the impairment is both ‘transitory’ and ‘minor.’” 29 C.F.R. § 1630.15. So, for example, “a person fired after recovering from appendicitis would be covered under the ‘regarded as’ prong (transitory but not minor), as would a person with an injured wrist that takes more than six months to heal (minor but not transitory).” Kevin Barry, Toward Universalism: What the ADA Amendments Act Can Do and Can’t Do for Disability Rights, 31 Berkeley J. Emp. & Lab. L. 203, 265 (2010). “[T]ransitory and minor” is meant to embrace “‘claims at the lowest end of the spectrum of severity,’ to ‘respond[] to concerns raised by [the employer] community regarding potential abuse of [the Act] and the misapplication of resources on individuals with minor ailments that last only a short period of time.’” Id. at 274. Select Staffing has made no showing that Bailey’s impairment was both transitory and minor.

Third, “whether the impairment at issue is or would be ‘transitory and minor’ is to be determined objectively. A covered entity may not defeat ‘regarded as’ coverage of an individual simply by demonstrating that it subjectively believed the impairment was transitory and minor; rather, the covered entity must demonstrate that the impairment is (in the case of an actual impairment) or would be (in the case of a perceived impairment) both transitory and minor.” 29 C.F.R. § 1630.15. Therefore, whether Select Staffing perceived his impairment as transitory or minor is irrelevant. Instead, Select Staffing would have to demonstrate something that it cannot demonstrate: that Bailey’s impairment—HIV—was objectively transitory and minor.

Fourth, this exception “should be construed narrowly.’” H.R. Rep. 110-730, pt. 1, at 14.

The intent of this exception is to prevent litigation over minor illnesses and injuries, such as the common cold, that were never meant to be covered by the ADA.

154 Cong. Rec. H6067 (2008). Given that, HIV should never be considered transitory and minor, and this exception can never be employed in cases involving an impairment as major as HIV; a common cold, HIV is not.

The transitory and minor exception has no bearing on this case, and the district court erred in concluding otherwise.

CONCLUSION

Gaylus Bailey was a good worker who happened to have HIV. To treat his HIV he took medication which triggered a false positive on a drug test. Upon learning this, he immediately and persistently, yet respectfully, told anyone who would listen that the false positive was caused by his medication. But Select Staffing refused to listen, failed to ask any follow up questions, and fired him anyway. Select Staffing’s refusal to listen to Bailey should not and does not shield it from liability. The Commission requests that this Court reverse the lower court’s summary judgment grant and remand the case to the district court.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel /s/ Eric A. Harrington

ERIC A. HARRINGTON

LORRAINE C. DAVIS Attorney

Acting Associate General Counsel

U.S. EQUAL EMPLOYMENT

CAROLYN L. WHEELER OPPORTUNITY COMMISSION

Assistant General Counsel Office of General Counsel

131 M Street, NE

Washington, DC 20507

(202) 663-4716

eric.harrington@eeoc.gov

[1] According to Franklin, Bailey was polite and respectful throughout—as was his custom. R.27-4 (Franklin Dep.), PageID 151. He always referred to Franklin as “Ms. Peggy,” as a term of respect; he even did so in his deposition. See, e.g., R.27-4 (Franklin Dep.), PageID 151; R.32-5 (Bailey Dep.), PageID 219.

[2] Indeed, EEOC Guidance, anticipating precisely this kind of case, makes clear that an employer inquiry in this case would be shielded from ADA liability:

May an employer ask applicants about their lawful drug use if the employer is administering a test for illegal use of drugs?

Yes, if an applicant tests positive for illegal drug use. In that case, the employer may validate the test results by asking about lawful drug use or possible explanations for the positive result other than the illegal use of drugs.

Example: If an applicant tests positive for use of a controlled substance, the employer may lawfully ask questions such as, “What medications have you taken that might have resulted in this positive test result? Are you taking this medication under a lawful prescription?”

EEOC, Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations 10 (Oct. 10, 1995), available at http://www.eeoc.gov/policy/docs/medfin5.pdf; see also Kroll v. White Lake Ambulance Auth., 691 F.3d 809, 815 (6th Cir. 2012) (relying on a different provision of this particular EEOC Enforcement Guidance and noting that this Court has repeatedly concluded that an “EEOC Enforcement Guidance is ‘very persuasive authority’ in questions of statutory interpretation of the ADA”).