Ninth Circuit Holds After-Acquired Evidence Can Be Used to Defeat a Disability Discrimination Claim

In Anthony v. TRAX International Corp. (April 17, 2020, Case No. 18-15662), the Ninth Circuit held the limitation of using after-acquired evidence to merely mitigate damages did not extend to evidence used to show that an Americans with Disabilities Act (“ADA”) plaintiff is not a qualified individual, an element of a prima facie case of disability discrimination.

The Ninth Circuit affirmed a summary judgment motion under the ADA.  Sunny Anthony had a history of post-traumatic stress disorder and related anxiety and depression that resulted in her taking leave under the Family and Medical Leave Act (“FMLA”).  When Anthony was unable to return to work at the end of her FMLA leave, she was terminated.  Anthony soon thereafter filed a disability discrimination and failure to engage in the interactive process lawsuit. 

During the course of discovery, TRAX learned that Anthony did not have a bachelor’s degree, which was a prerequisite for her former technical writer position.  Anthony argued that her lack of a bachelor’ degree was after-acquired evidence discovered well after the discriminatory adverse action and at most should be used to limit liability.  The Ninth Circuit held “[a]n employer’s ignorance cannot create a credential where there is none;” and “[a]ccepting Anthony’s argument would extend coverage [of the ADA] to those who do not in fact satisfy the job’s prerequisites — including those who successfully deceived their employer as to qualifications.”  The Court concluded that this lack of a prerequisite for the position established that Anthony was not a qualified individual; and therefore, not entitled to the protections of the ADA.  Under the two-step qualified individual test promulgated by the EEOC, an individual who fails to satisfy the job prerequisites cannot be considered “qualified” under the ADA.  The regulations interpreting qualified individual hold that someone is qualified  where the individual: (1) satisfies the requisite skill, experience, education, and other job-related requirements of the employment position, and (2) who with or without reasonable accommodation can perform the essential functions of such position.  29 C.F.R. § 1630.2(m).

The Ninth Circuit also held that an employer is obligated to engage in the interactive process only if the individual is otherwise qualified.  If a disabled employee does not independently satisfy the job prerequisites, the employee is not otherwise qualified, and the employer is not obligated to furnish any reasonable accommodation nor engage in the interactive process.

Although no California court has analyzed whether the two-step qualified individual test applies to the definition of qualified employee under the Fair Employment and Housing Act (“FEHA”), in Green v. State of California (2007) 42 Cal.4th 254, the California Supreme Court analyzed “qualified individual” under FEHA and held:  “This similarity between the state and federal enactments is not a coincidence, but reflects the Legislature’s deliberate effort in 1992 to conform the FEHA to this ADA provision.”  Id. at 262-63.  In Pensinger v. Bowsmith, Inc. (1998) 60 Cal.App.4th 707, the court recognized that because the FEHA is modeled after the ADA, interpretations of the federal act are a useful guide to interpreting and construing the FEHA.  Id. at 719.  Moreover, in Kelly v. Corrections Corp. of America (E.D. Cal. 2010) 750 F.Supp.2d 1132, the court held that it is appropriate to import the ADA’s two-step definition of qualified individual.  Id. at 1139.  Thus, if an employer can establish an employee was not qualified for a position, then under both state and federal law such employee cannot avail themselves of the protections under disability laws.  This remains true even if the employer does not become aware of missing job prerequisites until after the employee is terminated. 

This AALRR post is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

© 2020 Atkinson, Andelson, Loya, Ruud & Romo

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