explaining that the “goods, services, facilities, privileges, advantages, or accommodations” to which Title III ensures access should not be treated as “free-standing concepts but rather all refer to the statutory term ‘public accommodation’ and thus to what these places of public accommodation provide”
How later courts described this case
- explaining that the “goods, services, facilities, privileges, advantages, or accommodations” to which Title III ensures access should not be treated as “free-standing concepts but rather all refer to the statutory term ‘public accommodation’ and thus to what these places of public accommodation provide”
- holding that, because plaintiff "received her disability benefits via her employment,” and "had no nexus to [defendant’s] 'insurance office,' ” she "was not discriminated against in connection with a public accommodation,” and therefore could not state a claim under Title III
- stating that the Eleventh Circuit “failed to address the possibility that the disparity between the rights created by the ADA and the apparent legal remedy fashioned by the ADA creates an ambiguity in the eligibility requirements for obtaining a remedy”
- holding that because plaintiff "received her disability benefits via her employment at Schering, she had no nexus to MetLife’s 'insurance office' and thus was not discriminated against in connection with a public accommodation”
Written by the judges who cited it.
The opinion
ALITO, Circuit Judge,
concurring in the judgment:
I agree with the majority that Ford fails to state a claim under the Americans with Disabilities Act (ADA). However, I reach this conclusion based solely on the insurance “safe harbor” provision located in section 501(c) of the ADA. See 42 U.S.C. § 12201 (c).
Section 501(e) provides that Titles I and III of the ADA “shall not be construed to prohibit or restrict” the terms of a bona fide insurance plan. 42 U.S.C. § 12201 (c). This exemption applies so long as it is not “used as a subterfuge to evade the purposes of’ the ADA. Id. As the majority recognizes, the term “subterfuge” must be construed in accordance with the Supreme Court’s decision in Public Employees Retirement Sys. of Ohio v. Betts, 492 U.S. 158 , 109 S.Ct. 2854 , 106 L.Ed.2d 134 (1989). See Maj. Op. at 610-11. Betts concerned a “safe harbor” provision that exempted fringe benefit plans from coverage by the Age Discrimination in Employment Act (ADEA). See 29 U.S.C. § 623 (f)(2) (1988). 1 Like section 501(e), the ADEA exemption provided that it would not protect a plan that was “a subterfuge to evade the purposes of’ the Act. Id. In interpreting this language, the Court concluded that an employee benefit plan adopted prior to the en *615 actment of the ADEA could not be considered a subterfuge to evade the purposes of the ADEA. Betts, 492 U.S. at 166-69 (reaffirming the holding of United Air Lines, Inc. v. McMann, 434 U.S. 192, 203 , 98 S.Ct. 444 , 54 L.Ed.2d 402 (1977)). Under the same reasoning, the insurance plan challenged by Ford cannot be considered a subterfuge to evade the purposes of the ADA since the plan was adopted prior to the enactment of the ADA 2 See Modderno v. King, 82 F.3d 1059, 1063-1065 (D.C.Cir.1996) (holding that an insurance plan enacted prior to the importation of ADA standards into the Rehabilitation Act could not be considered a subterfuge to evade those standards). Accordingly, the defendants’ plan is insulated from attack by section 501(c).
I further note that Ford’s complaint as currently framed fails to allege that the defendants ever developed a “specific intent” to evade the purposes of the ADA. See Betts, 492 U.S. at 171 , 109 S.Ct. 2854 . In Betts , the Court wrote:
[W]hen an employee seeks to challenge a benefit plan provision as a subterfuge to evade the purposes of the Act, the employee bears the burden of proving that the discriminatory plan provision actually was intended to serve the purpose of discriminating in some non-fringe-benefit aspect of the employment relation.
Betts, 492 U.S. at 181 , 109 S.Ct. 2854 . Under this reading of “subterfuge,” Ford could not successfully challenge the defendants’ insurance plan unless she could show that it was intended to serve the purpose of discriminating in some non-insuranee-benefit aspect of her relationship with the defendants. Ford’s complaint contains no such allegation of intent.
Given the effect of section 501(c) on Ford’s claims, I do not think that it is necessary for the court to conclude that distinguishing between people with different disabilities for insurance purposes is not discrimination based on disability. See Maj. Op. at 607-08. In fact, it would seem that making such distinctions does constitute discrimination in the most basic sense of the word. See Webster’s Third New International Dictionary at 648 (defining discrimination as “the making or perceiving of a distinction or difference”). However, we need not wrestle with the question of what might or might not constitute unlawful insurance discrimination under the ADA had Congress not addressed the issue; Congress did address the issue and provided an explicit answer in section 501(c).
In light of the ease with which Ford’s claims can be resolved under section 501(c), I would not reach the more difficult issues of: 1) whether a former employee who can no longer work can meet Title I’s “qualified individual with a disability” requirement; and 2) whether Title Ill’s public accommodation provision guarantees anything more than physical access. These issues have divided the circuits, and I would reserve judgment until we are confronted with a case in which the unique considerations of insurance plans are not at stake.
. Following Betts , section 623(f)(2) was amended by the Older Workers Benefit Protection Act of 1990, Pub.L. No. 101-433, § 103 (1), 104 Stat. 978 .
. The disputed portions of the plan have been in effect since at least 1985. App. at 69, 87. The ADA was enacted in 1990. See 42 U.S.C. § 12101 .
Three justices in McMann rejected the majority's conclusion that a plan adopted prior to the enactment of the ADEA could not be a subterfuge to avoid the purposes of that Act. See 434 U.S. at 204-05 , 98 S.Ct. 444 (White, J., concurring); id. at 219 n. 13, 98 S.Ct. 444 (Marshall, J., joined by Brennan, J., dissenting). According to these justices, a pre-Act plan could become a subterfuge if it was maintained after the passage of the ADEA in order to evade the purposes of that Act. One could argue that this position is stronger under the ADA's "safe harbor” provision due to a difference in the statutory language. Compare 29 U.S.C. § 623 (f) ("is not a subterfuge to evade the purposes of" the ADEA) (emphasis added) with 42 U.S.C. § 1201 (c) {“shall not be used as a subterfuge to evade the purposes of” the ADA) (emphasis added). However, I do not believe that this change is sufficient to avoid the mandate of McMann and Betts .