Independent Contractor May Bring Discrimination Claim Under Rehabilitation Act: Fifth Circuit | Practical Law

Independent Contractor May Bring Discrimination Claim Under Rehabilitation Act: Fifth Circuit | Practical Law

In Flynn v. Distinctive Home Care, Inc., the US Court of Appeals for the Fifth Circuit held, as a matter of first impression, that an independent contractor may bring an employment discrimination suit under the Rehabilitation Act of 1973 and that the Rehabilitation Act does not incorporate the Americans with Disabilities Act's (ADA) requirement that a plaintiff be classified as an employee.

Independent Contractor May Bring Discrimination Claim Under Rehabilitation Act: Fifth Circuit

by Practical Law Labor & Employment
Published on 08 Feb 2016 • USA (National/Federal)
In Flynn v. Distinctive Home Care, Inc., the US Court of Appeals for the Fifth Circuit held, as a matter of first impression, that an independent contractor may bring an employment discrimination suit under the Rehabilitation Act of 1973 and that the Rehabilitation Act does not incorporate the Americans with Disabilities Act's (ADA) requirement that a plaintiff be classified as an employee.
On February 1, 2016, in Flynn v. Distinctive Home Care, Inc., the US Court of Appeals for the Fifth Circuit held as a matter of first impression that the Rehabilitation Act of 1973 does not incorporate the requirement of the ADA that any plaintiff be classified as an employee under the ADA's definition. Section 504 of the Rehabilitation Act authorizes employment discrimination suits by independent contractors. ( (5th Cir. Feb. 1, 2016).)

Background

Rochelle Flynn worked as a contract pediatrician for companies (including Distinctive Home Care) that contracted with the US Air Force. Her contract explicitly provided that she was an independent contractor, not an employee of Distinctive. Around the time that Flynn was diagnosed with Autism Spectrum Disorder-Mild, the officer governing Distinctive's contract with the Air Force raised concerns about Flynn's work and recommended her removal from service. When notified of the performance concerns, Flynn informed her superiors of her medical condition, and noted its likely responsibility for the issues. Following further complaints, Flynn was removed from duty. Her request to be reinstated with accommodation was denied.
She sued Distinctive for employment discrimination under the Rehabilitation Act, claiming that Distinctive discriminated against her based on her disability, subjected her to a hostile work environment based on her disability, and denied her a reasonable accommodation.
The district court granted summary judgment to Distinctive, holding that Flynn could not sue Distinctive under the Rehabilitation Act because she was an independent contractor, not an employee. Flynn appealed to the Fifth Circuit.

Outcome

The Fifth Circuit, in an issue of first impression, vacated the district court's grant of summary judgment and held that an independent contractor who lacks an employment relationship with the defendant can still sue the defendant for employment discrimination under Section 504 of the Rehabilitation Act (Section 504).
The Fifth Circuit noted that:
  • Federal circuit and district courts have held that only an employee, not an independent contractor, may sue a defendant under Title I of the ADA.
  • Section 504 prohibits discrimination under "any program or activity receiving federal financial assistance." This "activity" includes "all of the operations of …an entire" organization. Section 504 and the ADA are not to be interpreted identically or deemed interchangeable. Unlike the ADA, Section 504 is not limited to the employment context.
  • The Ninth and Tenth Circuits have held that the Rehabilitation Act does not incorporate the ADA's requirement that any plaintiff be an employee as defined by the ADA (see Fleming v. Yuma Reg'l Med. Ctr., 587 F.3d 938, 939 (9th Cir. 2009); Schrader v. Fred A. Ray, M.D., P.C., 296 F.3d 968, 969–75 (10th Cir. 2002)).
The Fifth Circuit found that:
  • Importing the ADA's requirement that the plaintiff and defendant have an employee-employer relationship would conflict with the Rehabilitation Act's plain language, which authorizes discrimination suits against an array of entities including non-employers.
  • Although Flynn was an independent contractor, she was not precluded from suing Distinctive under the Rehabilitation Act.

Practical Implications

In Flynn, the Fifth Circuit found, in a matter of first impression for the circuit, that workers can bring employment discrimination lawsuits against the company for which they worked, even if there was no employer-employee relationship. Independent contractors still may not bring a suit under the ADA, but circuits are increasingly concluding that they can bring suits under the Rehabilitation Act of 1973. When confronted with an employment discrimination allegation, employers in the Fifth Circuit (and like-minded sister circuits) can no longer rely on an independent contractor's lack of recourse in litigation in response to the alleged incident. Employers should remind their supervisors to be mindful of conduct concerning their independent contractors.