Today’s blog entry discusses two different concepts. The first concept it discusses is what just does “transitory and minor,” mean for purposes of the regarded as exception and for purposes of what I mean when I keep talking about it as a great preventive law approach to deciding when a temporary disability might be protected under the actual disability prong. Second, the blog entry discusses a published decision, Buchanan v. Watkins and Letofsky, LLP, here, out of the Ninth Circuit decided April 7, 2022, discussing whether a business with multiple offices can have the employees from the multiple offices all count together for purposes of determining whether the minimum threshold of 15 employees is satisfied for purposes of subjecting that entity to the ADA. As usual, the blog entry is divided into categories and they are: just what does transitory and Minor mean?: Thoughts from Prof. Cheryl L Anderson of the Southern Illinois University Law School; just what does transitory and Minor mean?: My thoughts; Buchanan facts; court’s reasoning reversing and remanding the district court’s grant of summary judgment regarding whether the firm was an integrated employer; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories. Finally, I also want to thank the people who reached out to me on LinkedIn with their thoughts on what cases in my blog pipeline I should be blogging on next. The integrated employer case was one of the cases my readers wanted to know more about.
Just What Does Transitory and Minor Mean?: Thoughts from Prof. Cheryl L Anderson of the Southern Illinois University Law School.
For quite some time now, I have been talking about how an excellent preventive law approach to figuring out whether a temporary disability is an actual disability covered by the ADA would be to adopt the transitory and minor exception from the regarded as prong. I just assumed that what was “transitory and minor,” was obvious. I should have remembered my first day of law school when the law professor puts the word “assume,” on the board (it was a board back then😊), and then broke the word down into three separate subparts. It turns out that “transitory and minor,” is far from obvious as discussed in this excellent law review article coming soon in the University of San Diego Law Review (University of San Diego happens to be where I got my first law degree from), written by Prof. Cheryl L. Anderson of the Southern Illinois University Law School. In that law review article, she goes into the case law interpreting transitory and minor and reveals that the courts are absolutely all over the place. She suggests that there is no coherent explanation for why the length of impairment is the most important determinant of whether someone subjected to discrimination based upon that impairment is protected under the regarded as prong of the ADA. She also says that the legislative history makes only vague references to the business community’s concerns about the misapplication of resources unless the claims were’s at the lowest end of the severity spectrum. She does allow that it might be a misapplication of resources for an employer to have to accommodate the common cold or mild allergies or a hangnail, which was the types of conditions referenced in the legislative history. Those particular conditions are not impairments leading to adverse employment actions absent highly unusual situations. All that said, things like broken limbs, kidney stones, and miscarriages do not result in any less discriminatory stigma when they are the basis for the adverse actions when compared to other longer lasting disabilities. The law review article is entitled, “No Disability If You Recover: How the ADA Short Changes Short-Term Impairments.” It is an excellent article and can be found here. I strongly encourage its reading, and I don’t say that very often for law review articles.
Just What Does Transitory and Minor Mean?: My Thoughts
After reading the law review article mentioned above, I felt I had no choice but to clarify what I mean by, “transitory and minor.” Of course, my thoughts are not persuasive authority and may never be adopted by the courts. However, I keep talking about how transitory and minor is an excellent preventive law approach, and I do believe my readers are entitled to know what I mean when I refer to that term. When I refer to the term “transitory and minor,” the term means the following to me. First, transitory means a period of six months or less as you find in the exception for the regarded as prong. “Minor,” to me means anything that satisfies the definition of a disability under the actual disability prong after the amendments to the ADA. So, when I am referring to the term “transitory and minor,” what I have in mind is a period of six months or less and anything satisfying the definition of the actual disability prong after the amendments to the ADA. Of course, this approach means that particular condition must be BOTH transitory AND minor. I probably get to a very similar place as Prof. Anderson with this approach, though it may not be precisely the same.
Starting in 2016, Amy Buchanan, the plaintiff, worked as a full-time associate attorney at Watkins and Letofsky Nevada, the defendant. In September 2016, because of health concerns, plaintiff resigned her position from the law firm. In December 2016, she returned to work there. Plaintiff alleges that when she did return, the firm agreed to accommodate her medical condition by reducing her expected commitment to 20 hours per week. Plaintiff further contended that despite this agreement, the firm required her to work more than 20 hours per week. In May 2017, after the plaintiff asked for time off to focus on her health, the firm (W & L Nevada), placed her on an indefinite leave of absence. She filed suit in the District Court of Clark County, Nevada. The firm removed it to federal court based upon federal question jurisdiction. The suit alleged violations of both the ADA as well as state law claims for breach of contract, breach of the implied covenant of good faith and fair dealing, retaliatory discharge, and unpaid wages. The district court granted summary judgment saying that the firm did not have 15 or more employees, and that the plaintiff did not present sufficient evidence to create a genuine issue of material fact whether the firm was an integrated enterprise with their offices in California. Plaintiff appealed.
Court’s Reasoning Reversing and Remanding the District Court’s Grant of Summary Judgment Regarding Whether the Firm was an Integrated Employer
- The ADA applies to employers with 15 or more employees per 42 U.S.C. §12111(5)(A).
- The Ninth Circuit has held in analogous title VII cases that even when a defendant has fewer than 15 employees, a plaintiff can bring a statutory claim if she can establish that: 1) defendant is so interconnected with another employer so as to form an integrated enterprise; and 2) the integrated enterprise collectively has at least 15 employees.
- In the title VII context, there are four factors used to determine whether two entities are an integrated enterprise: 1) interrelation of operations; 2) common management; 3) centralized control of labor relations; and 4) common ownership OR (emphasis mine), financial control.
- The same factors have also been applied in the Ninth Circuit to the 20 employee threshold under the Age Discrimination in Employment Act.
- The statutory scheme and language of the ADA and title VII are identical in many respects. More particularly, the ADA, 42 U.S.C. §12111(5)(A), and title VII, 42 U.S.C. §2000e(b), both define employers to include only those entities with 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. Further, title I of the ADA, 42 U.S.C. §12117, incorporates a remedial scheme identical to title VII. Finally, for purposes of determining whether an employer controls a corporation whose place of incorporation is a foreign country, both title VII and the ADA direct that courts consider the same factors the Ninth Circuit uses under the integrated enterprise test.
- For a long time, antidiscrimination statutes under title VII and the ADA have been analyzed in a parallel fashion. Since title VII and the ADA include the same 15 employee threshold and statutory enforcement scheme, the integrated enterprise doctrine applies equally under the ADA.
- With respect to interrelation of operations, plaintiff presented evidence that the two offices of the law firm shared a website and toll-free phone number, employees of both offices use the same email template footer which identified both offices, and both offices shared operational and administrative work, an IRS taxpayer identification number, and an employee roster. Further, the named partners were the only partners of the firm and managed both offices. They also managed all significant employment matters including hiring and firing of employees, employee discipline, performance evaluation, and scheduling and compensation.
- With respect to common financial control, there is no dispute that the named partners own both the Nevada and California firms. In a footnote, the court notes that the fourth factor of the integrated enterprise test addresses whether a plaintiff presents evidence of either common ownership or control, and not necessarily both. The court said that the district court erred in finding that the plaintiff had to establish both. Even so, the court believed that the plaintiff presented adequate evidence for a reasonable jury to find common ownership and financial control even if the plaintiff did not have to prove both.
- While the defendant did present some evidence that the Nevada and California offices were separate operations and maintain separate books, a jury could reasonably find that all four factors suggested an integrated enterprise when viewing the evidence in the light most favorable to the plaintiff.
- Defendant also argued that even if the Nevada and California branches of the firm were an integrated enterprise, they together had fewer than 15 employees. Since the district court did not address that argument, the matter was remanded back to the district court so it could consider that issue.
- Until reading the excellent law review article mentioned above, I simply always assumed that it was obvious what “transitory and minor,” meant. I should have remembered the very first day of contracts class taught by my favorite professor in law school, Prof. Frank Engfelt (I took every single class he taught. I am also eternally grateful for all the time he spent with me to make sure that I did the very best I could in his class. He is sorely missed, and I am glad that I could tell him what he meant to me prior to his death), when he wrote the word “assume,” on the board and then broke it down into three separate words. Accordingly, I believe it is essential that I clarify what I mean by “transitory and minor,” since I am always talking about it as an excellent preventive law approach. I still remain convinced that it is an excellent preventive law approach for figuring out when temporary disabilities are actual disabilities, but that preventive law approach only works within the narrow confines of how I define what, “transitory and minor” means as discussed in this blog entry.
- For the reasons stated by the Ninth Circuit, it makes perfect sense to me that the title VII integrated enterprise test would equally apply to the ADA. The test seems relatively straightforward to apply, though I am sure that will not always be the case.
- With respect to the fourth factor, plaintiffs have the opportunity to establish common ownership or control and do not have to establish both.
- It would seem to me that the vast majority of law firms with multiple offices would be integrated enterprises under the test set forth by the Ninth Circuit. It may depend upon the particular industry how likely multiple offices are to be considered integrated enterprises.
- As many of you know, one of the things that I’ve done in my career is that I spent a 12 year period teaching people full time how to be paralegals. I can tell you from personal experience that if you have a teacher who really made a difference for you, be sure to reach out to them. It simply doesn’t matter how long it has been since you may have done that, that teacher or professor will have their day, if not their year, made by you doing so. For example, in my case I had a former student reach out to me some 10 years after she had me for classes, I still haven’t forgotten that moment. I haven’t forgotten the other individuals that did the same either.
For those celebrating Easter next weekend, happy Easter. Also, for those in the midst of Ramadan, I hope that goes well as well. For those in the midst of Passover, I hope the rest of Passover, whatever that may mean for you, goes well.