Thursday, February 28, 2008

7th Cir.: Is Association Discrimination Disability Discrimination or Expense Discrimination?

Posner_richard My good friend Howard Bashman, of How Appealing fame, brings to my attention an interesting 7th Circuit case involving association discrimination under the ADA and a controversial concurrence by Judge Posner (pictured left). 

Unlike other employment discrimination laws, the Americans with Disabilities Act (ADA) permits workers to sue not only for being discriminated against for their own qualified disability, but also if they can prove they were discriminated against because of the disability of a family member or another associate.  Because we are not dealing with the worker's disability, tricky issues come up in this area, none more so than whether such claims properly fit under the "ubiquitous" McDonnell Douglas pretext framework.

Dewitt v. Proctor Hospital, 07-1957 (7th Cir. Feb. 27, 2008) involves a former, well-regarded nursing supervisor at a hospital who alleges she was fired because (among other reasons) of the expense associated with treating her husband's prostate cancer.  Her husand's health care costs "were $71,684 [in 2003]. In 2004, the figure jumped to $177,826. In the first eight months of 2005, the expenses were $67,281.50."  The hospital challenged the nurse's medical care expenses as unusually high, and even suggested that her husband consider a less-expensive hospice option (sensitive employer of the week, anybody?).  Another factor that seemed to suggest that her husband's medical condition motivated her firing was that the nurse was terminated for non-performance reasons, but was labeled as "ineligible for rehire."

Turning to the "infrequently litigated" association discrimination claim, Judge Evans, writing for the majority, found that usually the McDonnell Douglas framework applies even thought it was "a bit like a mean stepsister trying to push her big foot into one of Cinderella’s tiny glass slippers." Neverthless, Judge Evans concluded that there was enough "direct evidence" that the hospital fired her because of her husband's condition such that it was not necessary to apply the framework and that her claim could go forward.

Writing a provocative concurrence (does he write any other kind?), Judge Posner agreed with most of Judge Evan's reasoning and his result, but on the association discrimination claim wrote to raise three questions that did not need be necessarily decided in this case (advisory opinion anyone?):

[(1) T]he alternative ways of establishing a prima facie case of discrimination[, (2)] their suitability to the discrimination charged in this case[,] and [(3)] the difference between discrimination on grounds of expense and discrimination on grounds forbidden by federal law.

First, "it was a mistake for the parties in this case to think that the way to litigate it was to address the two methods of establishing a prima facie case [,direct and indirect,] as if each were in its own sealed compartment." OK, so I have no beef with Posner's first point about there not being tightly compartmentalized proof schemes under direct proof and McDonnell cases. These two types of cases have the tendency to run into one another.

Second, "So far I have assumed that McDonnell Douglas provides an appropriate method of establishing a prima facie case under the rarely litigated “association” provision of the Americans with Disabilities Act, . . . . Yet the inference from these scanty facts that the association had induced the employer’s action would be too weak to justify forcing the defendant to produce evidence that he had taken the action for a different, an innocent reason." Not sure I agree with this point, because after all only the burden of production, not persuasion, is shifting to the employer to articulate a non-discriminatory, legitimate reason in the pretext framework. Is it so hard for the employer to say that we treat people with similar expense medical treatments the same?  And then, of course, the ultimate burden is on the plaintiff to show pretext and the real reason was unlawful disability discrimination.

And then third, and most controversially (so I quote this in some length):

But if the disability plays no role in the employer’s decision—if he would discriminate against any employee whose spouse or dependent ran up a big medical bill—then there is no disability discrimination. It’s as if the defendant had simply placed a cap on the medical expenses, for whatever cause incurred, that it would reimburse an employee for. This appears to be such a case . . . . All the evidence recited in the majority opinion concerns costs (“cutting costs,” “high cost of Anthony’s medical treatment,” “financial albatross,” etc.) that a person who had a nondisabling medical condition could equally incur. . . .

If cost was indeed, as appears to be the case, the defendant’s only motive for the action complained of, the defendant was not guilty of disability discrimination . . . . But it has never made this argument, and so reversal is proper . . . . [Neverthless,] the defendant will be able to argue the cost point on remand unless the district judge finds that it has been forfeited by being withheld for so long.

Here, I couldn't disagree more with Judge Posner's rigid formalism. Disability discrimination is not just based on prejudice against one's disability for let's say distaste or distraction on the one hand, and the cost associated with the disability on the other.  It is usually a combination of such factors.  Indeed, it is not too far-fetched to believe that much of the bias against individuals with disabilities (and those that support them) is caused to a considerable degree because of the vast expense sometimes associated with having a disability and the consequent belief of others that those with disabilities and their associations are getting an unfair advantage.  In other words, I just don't see expense discrimination being a category, separate and apart, from disability discrimination at all.

An even more crucial point for this case: cost is not a bfoq justification in the direct proof scheme and this is apparently a direct proof case.  So is Posner suggesting that we adopt Justice Scalia's dissent in Johnson Controls and now find that a bfoq can be found based on a cost-based justifications? Isn't Posner ignoring the relevant precedent here? And wouldn't such reasoning permit sex, religious, and national origin discrimination based on cost in more situations as well (e.g., we are not building a separate bathroom for women not because you are a woman, but because it is too expensive - Scalia's boat hypothetical from Johnson Controls).

Unfortunately, and I think inappropriately, Posner has suggested a litigation roadmap to defendant in this case. I hope that the appropriate direct proof framework will be applied and this case gets decided on that basis.

PS

http://lawprofessors.typepad.com/laborprof_blog/2008/02/7th-cir-tackles.html

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Comments

I agree with Paul--how can "expense discrimination" be read distinctly from disability discrimination? There would be no expense if it weren't for the disability, and the disability status is precisely what is protected. I suppose Posner (and the law & econ people) would prefer that we all not treat our disabilities. Why do people find disabilities unsettling and uncomfortable to be around? Partly because they are things that require "treatment", and the more difficult, complicated, and expensive the treatment, the less likely people are to feel comfortable with the disability. Serious conditions require expensive (and sometimes ineffective) treatments, and that reminds all of us of our mortality. It also, as Paul mentions, creates a feeling of "unfairness" if someone receives something financial that others don't.

This also smacks of the ugly distinction made under the ADA between "conduct" and psychiatric disability, when the primary way that a psychiatric disability manifests itself is via conduct. You can't treat someone differently based on their (involuntary) conduct without treating them differently based on their disability.

Posted by: Ramona | Feb 28, 2008 3:26:53 PM

My problem with Posner opinion is a factual one. "..that a person who had a nondisabling medical condition could equally incur." If it is true that a person could run up a 100K bill for both a nondisabling medical condition and a disabling medical condition he might have a point. But I don't think this is true as a factual matter. Certainly I don't think it's true enough so that it would pass a "disparte impact" test, if such a corporate policy existed. I would think that medical conditions that could run up 100K bill would almost always (not "equally," as Posner has it) be disabling conditions under the ADA.

Posted by: Daniel T | Feb 28, 2008 4:15:53 PM

Posner's opinion does not require embracing Scalia's rejected opinion from Johnson Controls. The agency rules on the "infrequently litigated" provision say employers don't have to provide reasonable accomodations to associational employees. Given that, the bfoq analysis is irrelevant and we have a straight up discrimination case.

Posted by: Jack | Feb 28, 2008 5:00:51 PM

As in so many cases, Judge Posner just cannot accept (or repeatedy forgets) that employment discrimination law is not organized according to the principles a law & economics approach would recommend (to the extent it can recommend any). It's just _Manhart_ over again and again and again. He should read Sam Bagenstos' "Rational Discrimination" article as a prophylactic every time he sits down to write an opinion about discrimination.

Posted by: Noah Zatz | Mar 1, 2008 8:24:05 AM

Please note that universal health coverage, particularly a single-payer system, would, in large part, obviate Posner's cost argument.

Posted by: Blood | Mar 21, 2008 9:19:26 AM

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