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ADA Case Dismissed After Employer Learned Employee Did Not Meet The Job Prerequisites
In 2010, TRAX, a contractor for the Department of the Army, hired Sunny Anthony as a Technical Writer. Anthony had a history of post-traumatic stress disorder and related anxiety and depression. After her condition worsened, Anthony obtained leave under the Family and Medical Leave Act (FMLA) in April 2012. Anthony’s physician indicated her condition would likely continue through May 30, 2012.
On June 1, 2012, Anthony requested to work from home, but TRAX denied her request. While TRAX extended her FMLA leave another 30 days, the Benefits Coordinator indicated Anthony would be fired if she did not receive a full medical release from her physician by the time her FMLA leave expired. After Anthony did not submit a full release, TRAX terminated her employment on July 30, 2012.
Soon after, Anthony filed a lawsuit against TRAX under the Americans with Disabilities Act (ADA) alleging that the company failed to conduct the legally-required interactive process with her and that she was terminated because of her disability. Over the course of the litigation, TRAX discovered that contrary to her representation on her employment application, Anthony lacked the bachelor’s degree required for all Technical Writers. The district court dismissed Anthony’s claims against TRAX, finding that in light of the after-acquired evidence that Anthony did not have a bachelor’s degree, she was not a “qualified individual” entitled to protection under the ADA.
The ADA protects only “qualified individuals” from employment disability discrimination. The law defines a “qualified individual” as “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” The ADA’s implementing regulations further expand this definition of the term “qualified.” Under the regulations, there is a two-step inquiry for determining if the individual is qualified. First, the individual must satisfy the prerequisites of the job. Second, the individual must be able to perform the essential functions of the position, with or without reasonable accommodation.
On appeal, the Ninth Circuit affirmed the district court’s dismissal of the case. Anthony argued that the U.S. Supreme Court case McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995) precluded the use of after-acquired evidence to demonstrate that she was unqualified because she failed to satisfy the prerequisites prong. The court disagreed because Anthony’s case was different. In McKennon, the employer had conceded it had unlawfully discriminated against the employee on the basis of age, so it could not use after-acquired evidence of employee wrongdoing to excuse its discrimination by asserting that the employee would have been fired anyway. The Ninth Circuit concluded that the limitation on the use of after-acquired evidence under the McKennon case did not apply to evidence that shows that an ADA plaintiff is not a “qualified individual.”
Additionally, the Ninth Circuit found that TRAX had no obligation to have an interactive process with Anthony to identify and implement reasonable accommodations. The court noted that under the ADA, an employer is obligated to engage in the interactive process only if the individual is “otherwise qualified.” The court reasoned that because it was undisputed that Anthony did not satisfy the job prerequisites for the Technical Writer position, she was not “otherwise qualified,” and TRAX was not obligated to engage in the interactive process.
Anthony v. Trax Int’l Corp., 2020 WL 1898843 (9th Cir. Apr. 17, 2020).
Unlike the ADA, California’s anti-discrimination statute does not specifically require that an employee be “otherwise qualified” in order to trigger the right to an interactive process. (Government Code section 12940(n).) In order to prove a case of disability discrimination under California law, however, employees must show prove they are a “qualified individual. . . . who has the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position.” (2 Cal. Code Regs sections 11065(o) and 11066(a).)