Amicus Curiae Brief — Karyn D. Stanley, Petitioner v. City of Sanford, Florida

Supreme Court briefSep 23, 2024

Ask Donna

What actually matters in this document.

Text

No. 23-997

In The

Supreme Court of the United States

Karyn D. Stanley,

City of Sanford, Florida,

Petitioner,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF OF THE AMERICAN FEDERATION OF

LABOR AND CONGRESS OF INDUSTRIAL

ORGANIZATIONS AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

Harold C. Becker

(Counsel of Record)

Matthew Ginsburg

815 Black Lives Matter Plaza, NW

Washington, DC 20006

(202) 637-5310

cbecker@aflcio.org

Counsel for American

Federation of Labor and

Congress of Industrial

Organizations (AFL-CIO)

Mosaic - (301) 927-3800 - Cheverly, MD

49261_Ltrhd.indd

6/11/08

12:44:0

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE.....................

SUMMARY OF THE ARGUMENT....................

ARGUMENT........................................................

I. The Discrimination Occurred While

Stanley Was an Employee and Thus

Indisputably a Qualified Individual and

Her Claim Was Timely Under the Lilly

Ledbetter Act..............................................

A. The Discrimination Occurred While

Stanley Was an Employee....................

B. The Claim was Timely Under the

Lilly Ledbetter Act................................

II. The ADA Protects Former Employees

Even After They Are No Longer Able

to Work........................................................

A. A Contrary Construction Would

Seriously Undermine the Clear

Purpose of the ADA...............................

B. Stanley’s Construction is Consistent

With the Purpose of the Definition of

“Qualified Individual”...........................

C. Robinson is Highly Persuasive.............

CONCLUSION.....................................................

iii

TABLE OF AUTHORITIES

Page

Cases

Allied Chem. & Alkali Workers of Am., Local

Union No. 1 v. Pittsburgh Plate Glass Co.,

404 U.S. 157 (1971)........................... 2, 7, 9, 27, 28

Ariz. Governing Comm. for Tax Deferred

Annuity & Deferred Comp. Plans v. Norris,

463 U.S. 1073 (1983)......................... 2, 7, 9, 11, 27

Blassie v. Kroger Co.,

345 F.2d 58 (8th Cir. 1965)..............................

Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53 (2006)...........................................

Castellano v. City of New York,

142 F.3d 58 (2d Cir. 1998)..................

18-19, 22-23

EEOC v. CNA Ins. Cos.,

96 F.3d 1039 (7th Cir. 1996)............................

Gonzales v. Garner Food Servs., Inc.,

89 F.3d 1523 (11th Cir. 1996)..........................

Hishon v. King & Spalding,

467 U.S. 69 (1984)............................................ 2, 11

Inland Steel Co.,

77 NLRB 1 (1948).............................................

9-10

Johnson v. K Mart Corp.,

273 F.3d 1035 (11th Cir. 2001)........................

Ledbetter v. Goodyear Tire & Rubber Co.,

550 U.S. 618 (2007)..........................................

Lewis v. Aetna Life Ins. Co.,

982 F.Supp. 1158 (E.D. Va. 1997)...................

McKnight v. Gen. Motors Corp.,

550 F.3d 519 (6th Cir. 2008)............................ 18, 21

TABLE OF AUTHORITIES—Continued

Page

Newport News Shipbuilding & Dry Dock Co.

v. E.E.O.C.,

462 U.S. 669 (1983).......................................... 2, 10

PGA Tour, Inc. v. Martin,

532 U.S. 661 (2001)..........................................

Robinson v. Shell Oil Co.,

519 U.S. 337 (1997)...................

6, 7, 10, 21, 23-27

Shaw v. Delta Air Lines, Inc.,

463 U.S. 85 (1983)............................................

Weyer v. Twentieth Century Fox Film Corp.,

198 F.3d 1104 (9th Cir. 2000)................. 10, 18, 21

Statutes

29 U.S.C. § 158(a)(5)............................................

29 U.S.C. § 186(a)(2)............................................

29 U.S.C. § 186(c)(5)............................................ 7, 28

29 U.S.C. § 1001(a)..............................................

42 U.S.C. § 12101(b)(1)........................................ 4, 16

42 U.S.C. § 12102(1)(A)....................................... 3, 12

42 U.S.C. § 12111(4)............................................ 6, 25

42 U.S.C. § 12111(8)................................ 5, 13, 20, 21

42 U.S.C. § 12111(8) (2006).................................

42 U.S.C. § 12112(a)........ 1, 3, 6, 8, 12, 13, 16, 23, 24

42 U.S.C. § 12112(a) (2006)................................. 3, 12

42 U.S.C. § 12112(b)............................................ 6, 24

42 U.S.C. § 12112(b)(1)........................................

42 U.S.C. § 12112(b)(2).................................. 4, 16, 24

42 U.S.C. § 12112(b)(3)(A)................................... 2, 12

TABLE OF AUTHORITIES—Continued

42 U.S.C. § 12117(a)...............................

Page

6, 15, 25, 26

42 U.S.C. § 2000e(f)............................................. 6, 24

42 U.S.C. § 2000e-3(a).........................................

42 U.S.C. § 2000e-5..............................................

42 U.S.C. § 2000e-5(e)(3)(A).................... 4, 14, 15, 16

42 U.S.C. § 2000e-5(g)(1)..................................... 6, 25

ADA Amendments Act of 2008 (ADAAA),

Pub. L. No. 110-325, 122 Stat. 3553............... 12-13

Lilly Ledbetter Fair Pay Act of 2009,

Pub. L. No. 111-2, 123 Stat. 5......................... 4, 14

Legislative Materials

H.R. Rep. No. 101-485, pt. 2 (1990)...... 2, 6, 11, 17, 22

H.R. Rep. No. 101-485, pt. 3 (1990)........... 7, 16, 26-27

S. Rep. No. 101-116 (1989)..................................

Other Authorities

Black’s Law Dictionary (6th ed. 1990)...............

Bureau of Economic Analysis, U.S. Dept. of

Commerce, National Data, National Income

and Product Accounts, Table 1.10 Gross

Domestic Income by Type of Income,

https://apps.bea.gov/iTable/?reqid=19&step=

2&isuri=1&categories=survey&_gl=1*17i59

tq*_ga*Mzc0OTE5MjQ2LjE3MjMxNDA5

NTg.*_ga_J4698JNNFT*MTcyNjc1Mjk3M

i4yMi4xLjE3MjY3NTMwMjkuMy4wLjA.#

eyJhcHBpZCI6MTksInN0ZXBzIjpbMSwy

LDMsM10sImRhdGEiOltbImNhdGVnb3Jp

ZXMiLCJTdXJ2ZXkiXSxbIk5JUEFfVGF

ibGVfTGlzdCIsIjUxIl0sWyJGaXJzdF9ZZ

TABLE OF AUTHORITIES—Continued

Page

WFyIiwiMTk5MCJdLFsiTGFzdF9ZZWFy

IiwiMjAyNCJdLFsiU2NhbGUiLCItOSJdLF

siU2VyaWVzIiwiUSJdXX0.............................

Bureau of Economic Analysis, U.S. Dept. of

Commerce, National Data, National Income

and Product Accounts, Table 7.8 Supplement

to Wages and Salaries by Type,

https://apps.bea.gov/iTable/?reqid=19&step=

2&isuri=1&categories=survey&_gl=1*17i59

tq*_ga*Mzc0OTE5MjQ2LjE3MjMxNDA5NT

g.*_ga_J4698JNNFT*MTcyNjc1Mjk3Mi4y

Mi4xLjE3MjY3NTMwMjkuMy4wLjA.#ey

JhcHBpZCI6MTksInN0ZXBzIjpbMSwyLD

MsM10sImRhdGEiOltbImNhdGVnb3JpZX

MiLCJTdXJ2ZXkiXSxbIk5JUEFfVGFib

GVfTGlzdCIsIjI4NSJdLFsiRmlyc3RfWWVh

ciIsIjE5OTAiXSxbIkxhc3RfWWVhciIsIjIwM

jIiXSxbIlNjYWxlIiwiLTkiXSxbIlNlcmllcy

IsIkEiXV19....................................................... 17-18

Historical Trends and Future Uncertainties,

testimony of Patricia Neuman, Henry J.

Kaiser Family Foundation, before the

Special Committee on Aging, United States

Senate (May 17, 2004), https://www.

kff.org/wp-content/uploads/2013/01/thestate-of-retiree-health-benefits-historicaltrends-and-future uncertainties.pdf...............

Merriam-Webster Dictionary (9th ed. 1990)......

INTEREST OF AMICUS CURIAE

The American Federation of Labor and Congress of

Industrial Organizations (“AFL-CIO”) is a federation

of 60 national and international labor organizations

with a total membership of over 12.5 million working

men and women.1 The AFL-CIO and its affiliated

unions have negotiated benefits on behalf of millions

of workers that accrue upon their retirement, including the continued provisions of health insurance postretirement. In addition, the AFL-CIO has advocated

for statutory protection of workers with disabilities,

including those contained in the Americans with Disabilities Act (ADA). The AFL-CIO thus has a strong

interest in the protections of the ADA extending to all

forms of deferred compensation earned by workers

with disabilities during their employment and relied

on during their retirement.

SUMMARY OF THE ARGUMENT

The Court of Appeals erred for two separate reasons.

First, the discrimination occurred while Stanley

was an employee and thus indisputably a “qualified

individual” protected from discrimination under 42

U.S.C. § 12112(a) and her claim was timely under the

Lilly Ledbetter amendments.

While Stanley was still working and thus indisputably a “qualified individual,” her employer discriminated against her “on the basis of disability in regard

to” both “employee compensation” and “other terms,

conditions, and privileges of employment” by shorten1 No counsel for a party authored this brief in whole or in part,

and no person or entity, other than the amicus curiae, made a monetary contribution to the preparation or submission of this brief.

ing the period during which she would be entitled to

retiree health insurance upon her retirement if she

retired due to a disability.

The plain meaning of the word “compensation” as

well as the phrase “other terms, conditions, and privileges of employment” includes deferred compensation

such as retiree health insurance. Moreover, when

Congress included those words in the ADA in 1990, it

did so against the background of long and consistent

construction of the same words in parallel statutes to

encompass deferred compensation. See Allied Chem.

& Alkali Workers of Am., Local Union No. 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 180 (1971); Ariz.

Governing Comm. for Tax Deferred Annuity & Deferred Comp. Plans v. Norris, 463 U.S. 1073, 1079

(1983) (Marshall, J., joined by Brennan, White, Stevens, and O’Connor, JJ.); Newport News Shipbuilding

& Dry Dock Co. v. EEOC, 462 U.S. 669, 682 (1983);

Hishon v. King & Spaulding, 467 U.S. 69, 77 (1984).

And the legislative history of the ADA makes clear

that Congress intended to prohibit discrimination in

regard to “fringe benefits available by virtue of employment” not simply wages and fringe benefits paid

during employment. H.R. Rep. No. 101-485, pt. 2, at

55 (1990) (emphasis added).

In addition, the ADA prohibits “utilizing standards,

criteria, or methods of administration . . . that have

the effect of discrimination on the basis of disability.”

42 U.S.C. § 12112(b)(3)(A). And while Stanley was an

employee, her employer changed its retiree health insurance policy to provide for a shorter period of coverage for employees who retire due to disability and

thus “utilize[ed a] standard[ and a] criteri[on] . . . that

ha[d] the effect of discrimination on the basis of disability.” Id.

The employer thus violated the ADA even though

Stanley was not disabled at the time of the discrimination. The ADA prohibits “discriminat[ion] against a

qualified individual on the basis of disability.” 42

U.S.C. § 12112(a) (emphasis added). An employer’s

adoption of a policy that discriminates “on the basis of

disability” in the provision of retiree healthcare does

not fall outside the prohibition merely because a particular employee is not disabled at the time the policy

is adopted and is therefore not affected by the discrimination until after she develops “a physical or mental

impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). Congress

amended by ADA in 2008 precisely to avoid that result, changing the original language prohibiting

“discriminat[ion] against a qualified individual with a

disability because of the disability of such individual,”

42 U.S.C. § 12112(a) (2006) (emphasis added), to the

current language prohibiting “discriminat[ion] against

a qualified individual on the basis of disability.” 42

U.S.C. § 12112(a) (emphasis added).

A contrary reading would lead to incongruous results clearly not intended by Congress. Because Stanley was not yet disabled at the time of the discriminatory policy change, she would be barred from seeking

redress when the policy was applied to her upon retirement. But a coworker doing the same job and suffering from the same disability, even one hired after

Stanley, who started suffering from the disability earlier than Stanley and before the policy change, would

state a cause of action even if the change had exactly

the same adverse effect on the two employees due to

their disabilities after they retired.

While Stanley did not pursue her claim immediately after the retiree health benefit was unlawfully

changed during her employment, her claims was still

timely after she retired under the amendment adopted by the Lilly Ledbetter Fair Pay Act. 42 U.S.C.

§ 2000e-5(e)(3)(A). She filed a timely charge after she

“bec[ame] subject to [the] discriminatory compensation decision or other practice,” i.e., after she retired

and began to utilize the retiree health insurance benefit that would terminate sooner because of her disability. Id.

Second, the ADA protects former employees.

A contrary construction permitting discrimination

against retirees would be starkly inconsistent with

Congress’ express purpose “to provide a clear and

comprehensive national mandate for the elimination

of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1) (emphasis added). Congress made explicit that it intended to bar discrimination in “fringe benefits,” 42 U.S.C. § 12112(b)(2), and

certainly understood in 1990 that many employees

relied on such benefits, earned during their employment, after they retired. After all, just 16 years earlier, Congress adopted the Employee Retirement Income Security Act (ERISA) in recognition of the fact

that that “the continued well-being and security of

millions of employees and their dependents are directly affected by these [retirement benefit] plans.” 29

U.S.C. § 1001(a).

Imagining the possible consequences of affirming

the Court of Appeals’ construction in this case clearly

illustrates that Congress could not possibly have intended such a result. Under the Court of Appeals’ construction, a new employer that did not wish to bear

the expense and inconvenience of providing reasonable accommodations to qualified individuals with a

disability could easily, instead of simply refusing to do

so, announce to all prospective employees that individuals with a disability would not be eligible for retiree health insurance or any other post-employment

benefits. If any such employees sued after being denied benefits post-retirement, the employer could simply argue the former employees were no longer “qualified individuals” and could not state a claim. The

employer could thus deter qualified individuals with a

disability from even applying to work for the employer

while staying within the letter of the law as construed

by the Court of Appeals.

Construing the definition of “qualified individual”

in isolation as the Court of Appeals did here, would

also lead to anomalous results. Imagine two employees working for the City of Sanford. Both are individuals with disabilities but both continue to work with

reasonable accommodations. While they are working,

the City changes its retiree health insurance benefit

as in this case. Both then retire. After their health

insurance terminates pursuant to the changed policy,

both sue. However, one former employee seeks to return to work because she needs health insurance (but

is not rehired) and the other does not. The employee

who no longer “desires” to return to work cannot state

a claim but the employee who does can because she is

“an individual who, with . . . reasonable accommodation, can perform the essential function of the employment position that [she] . . . desires.” 42 U.S.C.

§ 12111(8). Because the alleged discrimination does

not relate to hiring, the different treatment of the two

employees under the law is entirely arbitrary and

could not have been intended by Congress.

While adopting the Court of Appeals’ construction

would be starkly inconsistent with Congress’ intent,

construing the ADA to protect retired employees

would in no way be inconsistent with the express purpose of the definition of “qualified individual,” which

was simply “to ensure that employers can continue to

require that all applicants and employees, including

those with disabilities, are able to perform the essential, i.e., the non-marginal functions of the job in question.” H.R. Rep. No. 101-485, pt. 2, at 55 (1990). It

would be perverse to use the definition of “qualified

individual,” which was intended to protect employers’

ability to ensure employees can do the job, to permit

discrimination against an individual who adequately

performed the job and is no longer seeking to do so.

Given the “broader context” and “primary purpose”

of the ADA, this Court’s holding in Robinson v. Shell

Oil Co., 519 U.S. 337 (1997), that the word “employee” in Title VII’s prohibition of retaliation should be

construed to include former employees, makes clear

that the word “employee” in the ADA should likewise

be construed to include former employees. Like the

anti-retaliation provision of Title VII at issue in Robinson, both the “general rule” stated in 42 U.S.C.

§ 12112(a) and the “construction” of the rule in Section 12112(b) bar discrimination against an “employee.” And the two statutes define the word “employee”

in identical terms. Compare 42 U.S.C. § 2000e(f) with

42 U.S.C. § 12111(4). Moreover, key elements of Robinson’s reasoning apply equally under the ADA. For

example, the Robinson Court observes that “a number of other provisions in Title VII use the term ‘employees’ to mean something more inclusive or different than ‘current employees,’ ” 519 U.S. at 342, such

as Section 706(g)(1), 42 U.S.C. § 2000e-5(g)(1) (providing that after a finding of unlawful discrimination,

a court can order “reinstatement or hiring of employees”), which is expressly incorporated into the ADA

by 42 U.S.C. § 12117(a).

Indeed, granting persons with disabilities less protection than accorded those covered by Title VII would

itself be contrary to express congressional intent. The

House Report on the ADA explained that “the purpose

of the ADA” was “to provide civil rights protections for

persons with disabilities that are parallel to those available to minorities and women.” H.R. Rep. No. 101-485,

pt. 3 at 48 (1990). And, prior to the adoption of the ADA,

this Court had made clear that Title VII barred discrimination in the payment of retirement benefits. See,

e.g., Ariz. Governing Comm., 463 U.S. at 1080.

Finally, this Court’s observation in Allied Chem.

Workers that the word “employee” in the exception to

the prohibition on employer payments to unions in the

Labor Management Relations Act, 29 U.S.C. § 186(c)

(5), for payments into benefit funds had been properly

construed to include retired employees further supports a parallel construction of the ADA. 404 U.S. at

169-70. There is “no anomaly,” this Court found, “in

the conclusion that retired workers are ‘employees’

. . . entitled to the benefits negotiated while they were

active employees.” Id. at 170.

As under Title VII in Robinson and the LMRA in

Allied Chem. Workers, context and statutory purpose

make clear that Congress intended the term employee

in the ADA to include retired employees.

ARGUMENT

I. The Discrimination Occurred While Stanley

Was an Employee and Thus Indisputably a

Qualified Individual and Her Claim Was

Timely Under the Lilly Ledbetter Act

A. The Discrimination Occurred While

Stanley Was an Employee

For two separate reasons, the discrimination occurred while Stanley was an employee and thus indisputably a “qualified individual.”

First, the ADA expressly states, “No covered entity

shall discriminate against a qualified individual on

the basis of disability in regard to . . . compensation

. . . or other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). While Stanley was

still working and thus a “qualified individual,” her

employer discriminated against her “on the basis of

disability” in regard to both “employee compensation”

and “other terms, conditions, and privileges of employment” by shortening the period during which she

would be entitled to retiree health insurance upon her

retirement if she retired due to a disability.

The plain meaning of the word “compensation” encompasses both (1) current compensation, i.e., wages or

salary paid while employees are working, and (2) deferred compensation, i.e., pensions and retiree health

insurance benefits paid after employees retire but owing to their prior employment. The common meaning of

the word “compensation” in 1990, when the ADA was

enacted, included all forms of compensation paid in return for services. See, e.g., Compensation, MerriamWebster Dictionary 268 (9th ed. 1990) (“Compensation:

Something that constitutes . . . recompense.”); Compensation, Black’s Law Dictionary 283 (6th ed. 1990) “Com-

pensation . . . Remuneration for services rendered . . .

See also Deferred compensation.”) Moreover, when

Congress adopted that language in 1990, it did so

against the background of a long and consistent construction of the word “compensation” to encompass

both current and deferred compensation in the form of

retirement benefits. In 1971, this Court observed, “future retirement benefits of active workers are part and

parcel of their overall compensation.” Allied Chem.

Workers, 404 U.S. at 180. And again in 1983, this Court

stated, “There is no question that . . . retirement benefits constitute a form of ‘compensation.’ ” Ariz. Governing Comm., 463 U.S. at 1079. As early as 1948, the National Labor Relations Board explained that the term

“wages,” surely one form of compensation, includes deferred compensation:

The term ‘wages’ as used in [the National Labor Relations Act] must be construed to include emoluments of value, like pension and insurance benefits,

which may accrue to employees out of their employment relationship. There is indeed an inseparable

nexus between an employee’s current compensation

and his future pension benefits. Regardless of the

particular economic considerations that may motivate the establishment of a pension system, the fact

remains that the employer’s financial contribution

thereto, in whole or in part, on behalf of the employees provides a desirable form of insurance annuity

. . . In substance, therefore, the respondent’s monetary contribution to the pension plan constitutes an

economic enhancement of the employee’s money

wages. Their actual total current compensation is

reflected by both types of items.

Inland Steel Co., 77 NLRB 1, 4-5 (1948) (emphasis

added). The Board continued, “in all fields of law deal-

ing with Congressional legislation for the protection of

public rights, the term ‘wages’ has consistently been

construed to include increments, such as retirement

benefits . . . , which flow to employees because of their

longevity.” Id. at 5. Congress intended the term “compensation” in the ADA, in accordance with this longstanding, preexisting construction, to include deferred

compensation such as retiree healthcare.2

Thus, Stanley was discriminated against while she

was still employed when her employer altered the deferred compensation she was entitled to receive “on

the basis of disability.”

Moreover, even if the word “compensation” did not

include deferred compensation, the words “other terms,

conditions, and privileges of employment” are a catchall that encompass retiree health insurance. The plain

meaning of the phrase, “terms . . . and privileges of employment,” encompasses deferred compensation like

retiree health care. In addition, as with the word “compensation,” when Congress adopted the ADA in 1990,

it did so against the background of a long and consistent construction of the phrase “terms . . . and privileges of employment” to encompass both health insurance and other fringe benefits, even if they are received

post-employment. Indeed, this Court expressly so held

in the decade prior to the adoption of the ADA. First,

in Newport News Shipbuilding, 462 U.S. at 682, this

2 For this reason, the Courts of Appeals that are aligned with

the Eleventh Circuit on this issue and that have distinguished

Robinson on the grounds that “in [the Title VII case] the protected interest of the former employee arose during the period of

employment, [while] it did not here,” are wrong. See, e.g., Weyer

v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1111 (9th

Cir. 2000) (citing EEOC v. CNA Ins. Cos., 96 F.3d 1039, 1045 (7th

Cir. 1996)).

Court stated, “[h]ealth insurance and other fringe benefits are ‘compensation, terms, conditions, or privileges

of employment’ ” under Title VII. And a year later in

Hishon, 467 U.S. at 77, this Court added:

A benefit need not accrue before a person’s employment is completed to be a term, condition, or privilege of that employment relationship. Pension benefits, for example, qualify as terms, conditions, or

privileges of employment even though they are received only after employment terminates.

See also Ariz. Governing Comm, 463 U.S. at 1079

(“There is no question that the opportunity to participate in a deferred compensation plan constitutes a

‘conditio[n] or privileg[e] of employment.’ ”)

The legislative history of the ADA also makes clear

that Congress intended to bar discrimination in receipt of fringe benefits earned during employment

even if they are not enjoyed until after retirement.

The House Report on the bill that became the ADA

states that “decisions covered” by the bill “include . . .

fringe benefits available by virtue of employment.”

H.R. Rep. No. 101-485, pt. 2, at 55 (1990) (emphasis

added). The choice of the words “by virtue of employment” rather than “during employment” is telling. It

makes clear the Congress intended to bar discrimination in the provision of deferred compensation, including retiree health insurance.

For that reason alone, the discrimination occurred

while Stanley was an employee and thus indisputably

a “qualified individual.”

A second reason why the discrimination occurred

while Stanley was an employee and thus a “qualified

individual” is that the ADA expressly prohibits “utilizing standards, criteria, or methods of administration

. . . that have the effect of discrimination on the basis

of disability.” 42 U.S.C. § 12112(b)(3)(A). That is exactly what happened here. While Stanley was an employee, her employer changed its retiree health insurance policy to provide for a shorter period of coverage

for employees who retire due to disability and thus

“utiliz[ed a] standard[ and a] criteri[on] . . . that ha[d]

the effect of discrimination on the basis of disability.”

For each of those reasons, the Court below erred.

The foregoing is correct regardless of whether Stanley had a disability at the time the retiree health insurance policy was changed. The ADA prohibits

“discriminat[ion] against a qualified individual on the

basis of disability.” 42 U.S.C. 12112(a) (emphasis added). An employer’s adoption of a policy that discriminates “on the basis of disability” in the provision of

retiree healthcare does not fall outside the prohibition

merely because a particular employee is not disabled

at the time the policy is adopted and is therefore not

affected by the discrimination until after she develops

“a physical or mental impairment that substantially

limits one or more major life activities.” 42 U.S.C.

§ 12102(1)(A).

That reading of the text of the prohibition is supported by its legislative history. As originally enacted,

the ADA prohibited “discriminat[ion] against a qualified individual with a disability because of the disability of such individual,” 42 U.S.C. § 12112(a) (2006)

(emphasis added), and defined the term “qualified individual with a disability” as “an individual with a

disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires,” 42 U.S.C. § 12111(8) (2006) (emphasis added).

The ADA Amendments Act of 2008 (ADAAA), Pub. L.

No. 110-325, 122 Stat. 3553, modified Section 12112(a)

to prohibit “discriminat[ion] against a qualified individual on the basis of disability,” and struck the words

“with a disability” from the heading and text of Section 12111(8). See 42 U.S.C. §§ 12111(8) and 12112(a)

(emphasis added). Those amendments were intended

to broaden the prohibited discrimination to reach discrimination against a qualified individual “on the basis of disability” even when the discrimination was

not, at least at the time it occurred, “against a qualified individual with a disability because of the disability of such individual.”3

redress when the policy was applied to her after her

retirement. But a coworker doing the same job and

suffering from the same disability, even one hired after Stanley, who started suffering from the disability

earlier than Stanley and before the policy change,

would state a cause of action even if the change had

exactly the same adverse effect on the two employees

due to their disabilities after they retired. That result

makes no sense and was not intended by Congress.4

We note that all of the Court of Appeals’ decisions in accord

with the Eleventh Circuit’s decision in this case preceded these

amendments to the ADA.

4 Moreover, Stanley had a disability as of 2016 when she was

diagnosed with Parkinson’s and continued to work until 2018.

Thus, she was indisputably a “qualified individual” during that

two-year period and was also, at that time, discriminated against

on the basis of disability because the retiree health insurance

plan then in effect provided her with a shorter period of coverage

based on her disability. As we explain in the next subsection, she

was, at that time, “subject to a discriminatory compensation de-

The discrimination occurred while Stanley was still

employed and thus indisputably a “qualified

individual.”5

B. The Claim Was Timely Under the Lilly

Ledbetter Act

While Stanley did not pursue her claim at the time

the retiree health benefit was unlawfully changed, her

claims was still timely under the Lilly Ledbetter Fair

Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5.

In the Lilly Ledbetter Act, Congress amended Title

VII and other civil rights statutes to specifically address situations where an employee is not subject to or

actually affected by an act of discrimination until after the statute of limitations would otherwise have

run under this Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007). Title VII

now provides:

For purposes of this section [establishing the “time

for filing charges”], an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this subchapter, when a

discriminatory compensation decision or other

practice is adopted, when an individual becomes

subject to a discriminatory compensation decision

or other practice, or when an individual is affected

by application of a discriminatory compensation

decision or other practice, including each time wages, benefits, or other compensation is paid, resultcision,” even if she had not yet been “affected by” its application.

See 42 U.S.C. § 2000e-5(e)(3)(A).

5 The Court below simply ignored this argument on the

grounds that it had been waived by Stanley, a suggestion that is

persuasively rebutted in Stanley’s brief. Pet. Br. at 24-25.

ing in whole or in part from such a decision or other

practice.

42 U.S.C. § 2000e-5(e)(3)(A). The fact that Congress

intended discrimination in fringe benefits to be included in this provision is made clear by the express

inclusion of payment of “benefits” in the amendment.

And the ADA expressly incorporates the “powers,

remedies and procedures set forth in Title VII.” 42

U.S.C. § 12117(a). Thus, Congress specifically noted

that the amendment “shall apply to claims of discrimination in compensation brought under title I” of the

ADA. 42 U.S.C. § 2000e-5 note.

Under the Ledbetter amendments, even if Stanley

did not pursue her claim in a timely manner after “the

discriminatory compensation decision or other practice [was] adopted,” she did so in a timely manner after she “bec[ame] subject to [the] discriminatory compensation decision or other practice,” i.e., after she

retired and began to utilize the retiree health insurance benefit that would terminate early because of her

disability.6 42 U.S.C. § 2000e-5(e)(3)(A). Stanley’s

claim was thus timely.7

For these reasons, the discrimination occurred

while Stanley was a “qualified individual” and her

claim was timely.

Stanley’s health insurance terminated two years after her

retirement, while, if she had retired for reasons other than disability, it would not have terminated until she reached age 65,

giving her another 16 years of coverage, as she retired at age 47.

See Pet. App. 3a.

7 We note that all the Court of Appeals’ decisions in accord

with the Eleventh Circuit’s decision in this case predate the Ledbetter amendments.

II. The ADA Protects Former Employees Even

After They Are No Longer Able to Work

A. A Contrary Construction Would Seriously

Undermine the Clear Purpose of the ADA

Congress intended the ADA to protect disabled persons from all forms of employment discrimination.

Congress stated that the purpose of the Act was to “to

provide a clear and comprehensive national mandate

for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1) (emphasis added). This Court has recognized the Act’s “broad

mandate” and “sweeping purpose.” PGA Tour, Inc. v.

Martin, 532 U.S. 661, 675 (2001). The express purpose

to create a “comprehensive” prohibition of discrimination would be seriously undermined by permitting discrimination against employees once they retire.

Specifically, Congress intended to bar discrimination in “employee compensation” and in “other terms

and conditions of employment.” 42 U.S.C. § 12112(a).

Both terms clearly encompass fringe benefits as explained above. Moreover, Congress specifically identified discrimination in the provisions of “fringe benefits”

as among the forms of “discrimination prohibited by

[the ADA]” when it provided that “the term ‘discriminate against a qualified individual on the basis of disability’ includes—. . . participating in a contractual or

other arrangement or relationship that has the effect

of subjecting a covered entity’s qualified applicant or

employee with a disability to the discrimination prohibited by this subchapter (such relationship includes

a relationship with . . . an organization providing fringe

benefits to an employee of the covered entity . . .).” 42

U.S.C. § 12112(b)(2). See also H.R. Rep. No. 101-485,

pt. 3, at 38 (1990) (“[E]mployers may not deny health

insurance coverage completely to an individual based

on the person’s . . . disability.”); S. Rep. No. 101-116, at

27 (1989) (“All people with disabilities must have equal

access to health insurance coverage that is provided by

the employer to all employees.”); H.R. Rep. No. 101-485,

pt. 2, at 55 (1990) (the Act covers decisions concerning

“fringe benefits available by virtue of employment”).

And central among all fringe benefits, now and in

1990 when the ADA was adopted, are retirement income and retiree health insurance. Sixty-six percent

of employers provided retiree health benefits in 1988,

two years before Congress enacted the ADA. The State

of Retiree Health Benefits: Historical Trends and Future Uncertainties, p. 10, Ex. 4, Testimony of Patricia

Neuman, Henry J. Kaiser Family Foundation, before

the Special Committee on Aging, United States Senate (May 17, 2004), https://www.kff.org/wp-content/

uploads/2013/01/the-state-of-retiree-health-benefitshistorical-trends-and-future-uncertainties.pdf. In

1990, when the ADA was adopted, employees received

$172 billion annually in post-retirement fringe benefits, not even including retiree health care, amounting

to approximately five per cent of total employee compensation.8 In 1974, just 16 years before it enacted the

8 Figures derived from Bureau of Economic Analysis, U.S.

Dept. of Commerce, National Data, National Income and Product

Accounts, Table 1.10 Gross Domestic Income by Type of Income,

https://apps.bea.gov/iTable/?reqid=19&step=2&isuri=1&

categories=survey&_gl=1*17i59tq*_ga*Mzc0OTE5MjQ2LjE3Mj

MxNDA5NTg.*_ga_J4698JNNFT*MTcyNjc1Mjk3Mi4yMi4xLj

E3MjY3NTMwMjkuMy4wLjA.#eyJhcHBpZCI6MTksInN0ZXBz

IjpbMSwyLDMsM10sImRhdGEiOltbImNhdGVnb3JpZXMiLC

JTdXJ2ZXkiXSxbIk5JUEFfVGFibGVfTGlzdCIsIjUxIl0sWyJ

GaXJzdF9ZZWFyIiwiMTk5MCJdLFsiTGFzdF9ZZWFyIiwiMj

AyNCJdLFsiU2NhbGUiLCItOSJdLFsiU2VyaWVzIiwiUSJdX

X0=, and Table 7.8 Supplement to Wages and Salaries by Type,

https://apps.bea.gov/iTable/?reqid=19&step=2&isuri=1&

categories=survey&_gl=1*17i59tq*_ga*Mzc0OTE5MjQ2LjE3Mj

ADA, Congress adopted the Employee Retirement Income Security Act (ERISA), recognizing that “the continued well-being and security of millions of employees and their dependents are directly affected by these

[benefit] plans.” 29 U.S.C. § 1001(a).9 Surely, Congress

did not intend to leave employees with a disability exposed to discrimination in regard to this valuable, indeed often life-sustaining, form of compensation.

The lower federal courts have persuasively made

this point. The Second Circuit observed, “[m]any fringe

benefits are paid out to those who no longer work and

who are no longer able to work, and some fringe benefits are paid out to individuals precisely because they

can no longer work.” Castellano v. City of New York,

MxNDA5NTg.*_ga_J4698JNNFT*MTcyNjc1Mjk3Mi4yMi4xLj

E3MjY3NTMwMjkuMy4wLjA.#eyJhcHBpZCI6MTksInN0ZX

BzIjpbMSwyLDMsM10sImRhdGEiOltbImNhdGVnb3JpZXM

iLCJTdXJ2ZXkiXSxbIk5JUEFfVGFibGVfTGlzdCIsIjI4NSJdL

FsiRmlyc3RfWWVhciIsIjE5OTAiXSxbIkxhc3RfWWVhciIsIjIw

MjIiXSxbIlNjYWxlIiwiLTkiXSxbIlNlcmllcyIsIkEiXV19.

9 Contrary to the suggestion of some lower federal courts that

agree with the Eleventh Circuit, see McKnight v. Gen. Motors

Corp., 550 F.3d 519, 528 (6th Cir. 2008); Weyer, 198 F.3d at 1112,

while the passage of ERISA evidences Congress’ awareness of

the importance of post-retirement fringe benefits to the well-being of U.S. workers, ERISA in no way substitutes for the antidiscrimination provisions of the ADA. As this Court expressly

held prior to adoption of the ADA, “ERISA does not mandate that

employers provide any particular benefits, and does not itself

proscribe discrimination in the provision of employee benefits.”

Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 91 (1983). In fact, the

legislative history of ERISA makes clear that an amendment

that would have prohibited discrimination in benefit plans was

not even introduced based on the express understanding that

nondiscrimination in [such benefit plans] is fully required under

[Title VII].” Id. at 104 (quoting Senator Mondale who had raised

the possibility of such an amendment). See also id. (referencing

similar colloquy in the House).

142 F.3d 58, 68 (2d Cir. 1998). “Under [the employer’s]

reading,” the Court continued, “none of these individuals would be protected by the ADA.” Id. As Judge

Anderson stated in his dissent in Gonzales v. Garner

Food Servs, Inc., 89 F.3d 1523 (11th Cir. 1996), “It

would be counter-intuitive, and quite surprising, to

suppose . . . that Congress intended to protect current

employees’ fringe benefits, but intended to then

abruptly terminate that protection upon retirement or

termination, at precisely the time that those benefits

are designed to materialize.” Id. at 1532 (Anderson,

J., dissenting). “So enormous a gap in the protection

afforded by Title I would be clearly at odds with the

expressed purpose of the ADA.” Lewis v. Aetna Life

Ins. Co., 982 F.Supp. 1158, 1163 (E.D. Va. 1997). “[I]t

is inconceivable,” the Second Circuit observed, “that

Congress would in the same breath expressly prohibit

discrimination in fringe benefits, yet allow employers

to discriminatorily deny or limit post-employment

benefits to former employees who ceased to be ‘qualified’ at or after their retirement, although they had

earned those fringe benefits through years of service

in which they performed the essential functions of

their employment.” Castellano, 142 F.3d at 69.

Imagining the possible consequences of affirming

the Court of Appeals’ construction in this case clearly

illustrates that Congress could not possibly have intended such a result. Under the Court of Appeals’ construction, an employer starting a business who did

not wish to bear the expense and inconvenience of

providing reasonable accommodations to qualified individuals with a disability could easily, instead of

simply refusing to do so, announce to all prospective

employees that individuals with a disability would

not be eligible for retiree health insurance or any other post-employment benefits. If any such employees

sued after being denied benefits post-retirement, the

employer could simply argue the former employees

were no longer “qualified individuals” and could not

state a claim. The employer could thus deter qualified

individuals with a disability from even applying to

work for the employer while staying within the letter

of the law as construed by the Court of Appeals. As

the Eleventh Circuit explained in Johnson v. K Mart

Corp., 273 F.3d 1035, 1048 (11th Cir. 2001), vacated

pending reh’g en banc, 273 F.3d 1035, 1070 (11th Cir.

2001), “reading [the prohibition] narrowly to exclude

coverage of former employees . . . [would] create a

‘perverse incentive’ for employers to interfere with

the post-employment benefits of former employees.”

Congress could not have intended and did not intend

to permit such a result.

Finally, construing the definition of “qualified individual” in isolation, as the Court of Appeals did here,

would lead to anomalous results. Imagine two employees working for the City of Sanford. Both are individuals with disabilities but both continue to work

with reasonable accommodations. While they are

working, the City changes its retiree health insurance benefit as in this case. Both then retire. After

their health insurance terminates pursuant to the

changed policy, both sue. However, one former employee seeks to return to work because she needs

health insurance (but is not rehired) and the other

does not. The employee who no longer “desires” to

return to work cannot state a claim but the employee

who does can because she is “an individual who, with

. . . reasonable accommodation, can perform the essential function of the employment position that

[she] . . . desires.” 42 U.S.C. § 12111(8). Because the

alleged discrimination does not relate to hiring, the

different treatment of the two employees under the

law is entirely arbitrary and could not have been intended by Congress.10

B. Stanley’s Construction is Consistent with

the Purpose of the Definition of

“Qualified Individual”

Not only is the Court of Appeals’ construction of the

ADA starkly inconsistent with clear congressional intent, Stanley’s proposed construction11 is fully consistent with the purpose of the limiting language relied

on by the Court below.

Congress adopted the definition of “qualified individual” in order to set limits on whom the Act requires

employers to hire and retain, not to limit the protections of retired employees. Congress wanted to make

clear that employers had no obligation to hire or retain

individuals who could not do the job, even with a reasonable accommodation. Stanley’s construction of the

Even courts that agree with the Eleventh Circuit acknowledge this anomaly (but simply choose to ignore it). See McKnight,

550 F.3d at 528 (“We acknowledge the plain language of Title I

suggests that disabled former employees who still ‘desire’ their

former employment positions might, in fact, have standing.”) This

example also illustrates why the Courts of Appeals that have suggested a narrow reading of “qualified individual” is supported by

a coherent congressional intent to protect against discrimination

only in hiring and during employment are wrong—because a narrow reading does, under some circumstances, protect employees

post-retirement. See, e.g., Weyer, 198 F.3d at 1112-13.

11 Stanley persuasively argues that the words of limitation in

the definition of “qualified individual” in 42 U.S.C. § 12111(8)—

“who can perform the essential functions of the employment position”—apply only to current employees and applicants and not to

retired employees. Pet. Br. at 34-42. We do not reiterate Stanley’s argument here but rather demonstrate how it is bolstered

by the use of the word “employee” in the prohibition of discrimination read as instructed in Robinson.

Act would in no way undermine that purpose. Indeed,

it would be perverse to use the definition of “qualified

individual,” which was intended to protect employers’

ability to ensure employees can do the job, to permit

discrimination against an individual who adequately

performed the job and is no longer seeking to do so.

The legislative history confirms the limited intent

behind the definition. The House Report on the ADA

makes clear that Section 12111(8) was “intend[ed] to

reaffirm that [the] legislation does not undermine an

employer’s ability to choose and maintain qualified

workers.” H.R. Rep. No. 101-485, pt. 2 at 55 (1990).

The purpose was “to ensure that employers can continue to require that all applicants and employees, including those with disabilities, are able to perform the

essential, i.e., the non-marginal functions of the job in

question.” Id. Congress adopted the definition in order

to ensure that employers were not required to hire,

promote, or retain unqualified employees simply because they are disabled.

The Second Circuit clearly explained why that congressional purpose is not undermined by the protection of the post-employment benefits of retired employees who performed their job duties fully despite

their disabilities:

Where the alleged discrimination relates to the provision of post-employment benefits, rather than to hiring, promotion, or firing, Congress’s expressed concern about qualifications is no longer implicated.

Because retired employees who receive fringe benefits no longer work or seek to work for their former

employers, they plainly need not perform the essential functions, or indeed any functions, of their former

employment. Provided that retired employees were

qualified (i.e., performed the ‘essential functions’ of

their jobs) while employed and on that basis became

entitled to post-employment benefits, the purpose of

the ‘essential functions’ requirement has been met.

Castellano, 142 F.3d at 68. Stanley’s construction is

thus entirely consistent with the purpose of the definition of “qualified individuals.”

C. Robinson is Highly Persuasive

In Robinson, this Court addressed a question that is

precisely parallel to the question raised by this case.

The Court’s rationale for holding in Robinson that the

term “employee” in Title VII includes former employees is highly persuasive here.

Title VII makes it unlawful “for an employer to discriminate against any of his employees or applicants

for employment . . . because he has opposed any practice made an unlawful employment practice by this

subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [the law].”

42 U.S.C. § 2000e-3(a). Just as in this case, the employer in Robinson argued that the term “employee”

in that prohibition did not include former employees,

thus leaving the plaintiff unable to state a claim based

on his former employer’s retaliatory action (giving

him a negative reference). The Supreme Court unanimously rejected the argument.

As in Title VII, the prohibition of discrimination in

the ADA uses the term “employee.” While the “general

rule” stated in Section 12112(a) uses the term “qualified individual,” it also provides that the prohibition of

discrimination against a “qualified individual” may be

“in regard to . . . employee compensation . . . and other

terms, conditions, and privileges of employment.” 42

U.S.C. § 12112(a). Moreover, the “construction” in

Section 12112(b) makes clear that “discriminate

against a qualified individual on the basis of disability” “includes—. . . limiting, segregating, or classifying

a job applicant or employee in a way that adversely

affects the opportunities or status of such applicant or

employee because of the disability of such applicant or

employee.” 42 U.S.C. § 12112(b)(1) (emphasis added).12

Thus, the two statutes use the same word, “employee,”

which should be construed in the same manner for the

following reasons.

This Court began its analysis in Robinson by observing that “[t]he plainness or ambiguity of statutory

language is determined by reference to the language

itself, the specific context in which that language is

used, and the broader context of the statute as a

whole.” 519 U.S. at 341. Here, the Court of Appeals

focused on the language in isolation. But as in Robinson, the context in which the language is used and the

broader statutory context suggest ambiguity where

the Court below saw clarity.

Key elements of the Robinson Court’s reasoning apply equally here. There, as here, the employer relied

on the present tense form of the relevant definition.

Title VII defines an employee to be “an individual employed by an employer.” 42 U.S.C. § 2000e(f) (empha-

12 Proscribed discrimination also includes “participating in a

contractual or other arrangement or relationship that has the

effect of subjecting a covered entity’s qualified applicant or employee with a disability to the discrimination prohibited by this

subchapter (such relationship includes a relationship with an

employment or referral agency, labor union, an organization

providing fringe benefits to an employee of the covered entity, or

an organization providing training and apprenticeship programs).” 42 U.S.C. § 12112(b)(2) (emphasis added).

sis added). The ADA defines employee in precisely the

same manner. 42 U.S.C. § 12111(4). The Court held in

Robinson that “the word ‘employed’ . . . could . . . be

read to mean ‘was employed.’ ” 519 U.S. at 342. The

same is true under the ADA.

In Robinson, “there [was] no temporal qualifier in

the statue such as would make plain” that it does not

protect former employees. Id. at 341. The same is

true under the ADA. Like Section 2000e(f) of Title

VII, Section 12111 of the ADA does not read “currently employed by an employer” and Section 12111(8)

does not read “can currently perform” or “currently

holds or desires.”

The Robinson Court also observed that “a number

of other provisions in Title VII use the term ‘employees’ to mean something more inclusive or different

than ‘current employees.’ ” 519 U.S. at 342. And

among the provisions of Title VII cited by the Court is

Section 706(g)(1), 42 U.S.C. § 2000e-5(g)(1), which is

expressly incorporated into the ADA by 42 U.S.C.

§ 12117(a). That section provides that after a finding

of unlawful discrimination, a court can order “reinstatement or hiring of employees.” 42 U.S.C. § 2000e5(g)(1). The Robinson Court explained, “because one

does not ‘reinstat[e]’ current employees, that language necessarily refers to former employees. Likewise, one may hire individuals to be employees, but

one does not typically hire persons who already are

employees.” 519 U.S. at 342. That logic applies directly here because the remedial provision is incorporated by reference into the ADA.13

13 In addition, as Stanley points out, the Eleventh Circuit’s

reading of Section 12111(8) would render the qualifying language

in Section 12112(b)(5)(A) mere surplusage as all “qualified individuals” would be either applicants or employees. Pet. Br. at 32-33.

Based on that reasoning, the Court held in Robinson “that the term ‘employees,’ as used in § 704(a) of

Title VII, is ambiguous as to whether it includes former employees.” 519 U.S. at 346. The Court therefore

proceeded to consider context and purpose and concluded, “[i]t being more consistent with the broader

context of Title VII and the primary purpose of

§ 704(a), we hold that former employees are included

within § 704(a)’s coverage.” Id. The “broader context”

of the ADA and the “primary purpose” of Section

12111(8) lead to the same conclusion here as explained

in subsection A and B above.14

Indeed, granting persons with disabilities less protection than accorded those covered by Title VII would

itself be contrary to express congressional intent. The

enforcement provisions of the ADA expressly incorporate those of Title VII. See 42 U.S.C. § 12117(a). The

House Report on the ADA explained that “the purpose

of the ADA” was “to provide civil rights protections for

persons with disabilities that are parallel to those avail14 The suggestion by the Court below that Robinson is distinguishable because the purpose of the anti-retaliation provision in

Title VII would be uniquely frustrated if it were construed not to

protect former employees, Pet. App. 8a, is plainly wrong. The

facts in Robinson, involving retaliation in the form of refusal to

provide a reference to a former employee, were actually very unusual. Many, if not most, cases of retaliation involve current employees who are passed over for promotion, disciplined, or otherwise treated worse because they invoked the protections of Title

VII. See, e.g., Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.

53, 58-59 (2006) (retaliation charge by current employee based

on adverse change in job responsibilities and disciplinary suspension). Thus, the Court of Appeals’ suggestion that Robinson is

distinguishable because its “construction was ‘necessary to provide meaning to anti-retaliation statutory provisions and effectuate congressional intent’ ” is simply wrong. Pet. App. 8a (quoting

Gonzales, 89 F.3d at 1529).

able to minorities and women.” H.R. Rep. No. 101-485,

pt. 3, at 48 (1990). And, prior to the adoption of the

ADA, this Court had made clear that Title VII barred

discrimination in the payment of retirement benefits.

See, e.g., Ariz. Governing Comm., 463 U.S. at 1080 (“We

have no hesitation in holding . . . that the classification

of employees on the basis of sex is . . . [impermissible]

at the pay-out stage of a retirement plan.”).

Moreover, the holding in Robinson is consistent

with this Court’s earlier holding in Allied Chem. Workers, which made clear that the word “employee” can be

read to encompass retired employees depending on

the specific statutory context. In analyzing the purpose of employers’ duty to bargain “with a representative of [their] employees” imposed by the National Labor Relations Act, 29 U.S.C. § 158(a)(5), the Allied

Chem. Workers Court held that the duty did not extend to retired employees.15 But, before reaching that

conclusion, the Court distinguished a separate provision of the Labor-Management Relations Act (“LMRA”)

authorizing employers to make payments to unionmanaged trust funds established “for the sole and exclusive benefit of the employees of such employer.” 404

15 In reaching this conclusion, despite several categorical

statements about the “plain meaning” of the word “employees,”

see, e.g., Allied Chem. Workers, 404 U.S. at 166, statements later

contradicted by Robinson, the Court relied heavily on the fact

that the NLRA’s primary purpose was to prevent industrial unrest in the form of strikes, reasoning that Congress did not intend retired employees who cannot strike and thus cannot cause

such unrest to be covered by the Act. Id. (“The Act, after all, as s

1 makes clear, is concerned with the disruption to commerce that

arises from interference with the organization and collectivebargaining rights of ‘workers’—not those who have retired from

the work force.”)

U.S. at 169-70 (citing 29 U.S.C. § 186(c)(5)).16 As to the

latter provision—relating to funds that are generally

used to provide fringe benefits such as health insurance and retirement income—the Supreme Court cited with approval a lower court’s conclusion that the

word “employee” should include both “current employees” and “persons who were . . . current employees but

are now retired.’ ” Id. at 169 (citing Blassie v. Kroger

Co., 345 F.2d 58, 70 (8th Cir. 1965)).

Like here, this Court explained that the issue was

whether retired employees remain protected by statutory provisions securing fringe benefits. See id. at

169-70 (“The question . . . was simply whether . . . retirees remain eligible for benefits of trust funds established during their active employment.”). Given the

different congressional purposes of the bargaining

duty and the authorization of payments into benefit

funds, the Court found that there was “no anomaly in

the conclusion that retired workers are ‘employees’

. . . entitled to the benefits negotiated while they were

active employees, but are not ‘employees’ whose ongoing benefits are embraced by the bargaining obligation of [the NLRA].” Id. at 170. Differing interpretations of an identical term were dictated by statutory

context and purpose.

In other words, the word “employee” can mean different things in different statutory contexts and here,

in the ADA, as in Title VII, for the reasons explained

in Robinson, and in the exception for employer payments into benefit funds in the LMRA, for the reasons

explained in Allied Chem. Workers, the context and

16 This provision operates as an exception to the LMRA’s general prohibition making it unlawful for an employer to provide

“any money or other thing of value” to a labor organization. 29

U.S.C. § 186(a)(2).

statutory purpose make clear that Congress intended

the term “employee” to include retired employees.

CONCLUSION

For the above-stated reasons, the decision below

should be reversed.

Respectfully submitted,

/s/ Harold C. Becker

harolD C. BecKer

(Counsel of Record)

MaTThew GInSburg

815 Black Lives Matter Plaza, N.W.

Washington, DC 20006

(202) 637-5310

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.