By Shawe Rosenthal LLP (Lexology Blog, August 31 2022)
Addressing this “novel” question, the U.S. Court of Appeals for the Sixth Circuit answered: No. However – be careful – companies may be held liable under a joint employer theory.
In Post v. Trinity Health-Michigan, a nurse was employed by a physician group that provided services to a hospital. Several months after suffering an accident that caused long-term effects, she was terminated. Because the physician group declared bankruptcy, she could not sue them. Instead, she sued the hospital for, among other things, interfering with her right to a reasonable accommodation under the Americans with Disabilities Act.
Under the ADA’s interference provision, it is illegal to interfere with an individual’s ADA rights. The Sixth Circuit acknowledged that the language of the interference provision does not identify the party that is prohibited from interference. However, the Sixth Circuit noted that the ADA adopts Title VII’s remedial framework, and Title VII permits suit only against employers – thus the ADA likewise permits suit only against employers. The Sixth Circuit further noted that this ruling was consistent with its previous ruling that only employers could be sued under the ADA’s provision prohibiting retaliation for making a complaint of discrimination.
It is worth noting that, in this case, the parties agreed that the hospital was not the nurse’s employer. However, in many similar situations, including the use of personnel employed by a temporary staffing agency, individuals have successfully argued that host entities are, in fact, joint employers with the named employer – and subject to coverage under the ADA (and/or other federal non-discrimination laws).