Amy G. Horwitz v. L. & J.G. Stickley, Inc., 00-9583 00-9583 IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT AMY G. HORWITZ, Plaintiff-Appellant, v. L. & J.G. STICKLEY, INC., Defendant-Appellee. On Appeal from the United States District Court for the Northern District of New York BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE GWENDOLYN YOUNG REAMS Associate General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ROBERT J. GREGORY Senior Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4059 STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("Commission") is the agency entrusted with the enforcement of the employment provisions of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"). In this case, the district court granted summary judgment in favor of the defendant, ruling that the plaintiff's evidence was insufficient to support a finding of a covered disability under the ADA. See Horwitz v. L. & J.G. Stickley, Inc., 122 F. Supp. 2d 350 (N.D.N.Y. 2000). The court, inter alia, rejected the plaintiff's claim for coverage under the "record of" prong of the ADA's definition of disability, 42 U.S.C. § 12102(2)(B). The court acknowledged that there might be evidence to support a finding that the plaintiff had a record of a substantially limiting impairment, resulting from the plaintiff's bipolar disorder. Id. at 357 n.6. The court held, however, that this evidence could not establish coverage under the "record of" prong because there was no evidence to show that the defendant had knowledge of this specific history at the time it terminated the plaintiff's employment. Id. In our view, the district court committed a clear legal error in its analysis of the plaintiff's "record of" claim. Specifically, the court improperly imposed a requirement of employer knowledge at the coverage stage. Although not directly addressed in the district court's decision, this case also raises questions concerning the relevance of employer knowledge at the causation stage of a "record of" case. To assist this Court in resolving these important issues, the Commission, pursuant to F.R.A.P. 29(a), offers its views as amicus curiae. STATEMENT OF THE ISSUES 1. Whether an individual with a record of a substantially limiting impairment is covered under the "record of" prong of the ADA's definition of disability irrespective of the employer's knowledge (or lack of knowledge) of the record. 2. Whether the employer's knowledge of the record is relevant to the causation issue in a "record of" case. 3. Whether the employer has sufficient knowledge of the record, for causation purposes, where the disability history known to the employer, although incomplete, puts the employer on reasonable notice of the possible existence of a record of a substantially limiting impairment. STATEMENT OF THE CASE This case involves a claim of disability discrimination under Title I of the ADA. The plaintiff, Amy Horwitz, alleges that the defendant, L. & J.G. Stickley, Inc. ("Stickley"), terminated her employment because of her disability. Horwitz invokes coverage, in part, under the "record of" prong of the ADA's definition of disability. The evidence shows that Horwitz applied for a position with Stickley in January 1999. 122 F. Supp. 2d at 351. On March 1, 1999, Stickley extended an offer of employment for a part-time receptionist position; Horwitz accepted the offer. Id. On March 3, 1999, Horwitz filled out a post-hire medical questionnaire. Id. Horwitz indicated on the questionnaire that "she suffered from bipolar disease for which she takes medication and had twice been hospitalized." Id. Horwitz did not complete the question asking whether she had ever had a workers' compensation injury and failed to check a box asking whether she had ever suffered from any of eleven listed diseases. Id. Stickley noticed the omissions and pressed Horwitz to complete the questionnaire. Id. On March 9, 1999, Horwitz submitted the completed questionnaire. Id. On that same day, Stickely terminated her employment. Id. at 351-52. By order dated November 30, 2000, the district court granted summary judgment in Stickley's favor. The court did not address the merits of Stickley's claim. Instead, the court held that there was insufficient evidence to support a finding that Horwitz has a covered disability under the ADA. With respect to Horwitz's "record of" argument, the court ruled that the information provided on the medical questionnaire did not establish the existence of a "record of a disability that substantially limited Plaintiff's ability to engage in one or more of her major life activities." Id. at 357. The court acknowledged that there was other information in the record, e.g., Horwitz's receipt of Social Security benefits, that might demonstrate a record of a substantially limiting impairment. Id. n.6. The court stressed, however, that Stickley was not aware of this information at the time. Id. In the court's view, because this specific information could not "have formed the basis of any adverse employment action," id., it could not be used to establish coverage under the "record of" prong. ARGUMENT I. AN INDIVIDUAL WITH A RECORD OF A SUBSTANTIALLY LIMITING IMPAIRMENT IS COVERED UNDER THE "RECORD OF" PRONG OF THE ADA'S DEFINITION OF DISABILITY IRRESPECTIVE OF THE EMPLOYER'S KNOWLEDGE (OR LACK OF KNOWLEDGE) OF THE RECORD. The ADA contains a three-pronged definition of "disability." First, the statute defines disability to include an actual disability, i.e., "a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual." 42 U.S.C. § 12102(2)(A). Disability is also defined as a "record of such [a substantially limiting] impairment." 42 U.S.C. § 12102(2)(B). Finally, disability is defined as "being regarded as having such [a substantially limiting] impairment." 42 U.S.C. § 12102(2)(C). To be covered under the ADA, an individual must meet at least one of the three prongs of the "disability" definition. In this case, the district court ruled that Horwitz was unable to establish coverage under the "record of" prong, despite record evidence suggesting that Horwitz has an impairment, bipolar disorder, that was, at one time, substantially limiting. The court reasoned that, in attempting to establish coverage under the "record of" prong, Horwitz was strictly limited to the specific information known to Stickley at the time of its decision to terminate Horwitz's employment. The district court's ruling cannot be squared with the statute's plain terms. The ADA defines disability to include a "record of" an impairment that "substantially limits one or more of the major life activities of [an] individual." 42 U.S.C. § 12102(2)(A)-(B). The definition says nothing about employer knowledge. The definition does not say record of an impairment of which the employer is "aware." 122 F. Supp. 2d at 357 n.5. The definition does not say record of impairment "that could have formed the basis of any adverse employment action." Id. n.6. By its plain terms, the statute requires only that the individual have the record of a substantially limiting impairment; there is no requirement, for coverage purposes, that the employer be aware of that record. Of course, to prove a claim of discrimination under the ADA, a plaintiff must show that the discrimination occurred "because of" the individual's disability, 42 U.S.C. § 12112(a), a standard that presupposes some degree of knowledge on the employer's part. See infra, pp. 8-12. ADA coverage, however, does not equate with an ADA violation. An individual, for example, may be completely without vision. The employer may reject that individual for a job, based on a review of the individual's resume, without knowledge of the vision impairment. In such a case, there would be no claim of disability discrimination under the ADA. The individual, nonetheless, would have a covered disability under the ADA. A "record of" case is no different. An individual may have a history of paralysis, covering a span of five years, from which the individual has since recovered. The employer may reject that individual for a job, based on a review of the individual's resume, without any knowledge of the paralysis. In such a case, there would be no claim of disability discrimination under the ADA. The individual, nonetheless, would have a covered disability under the ADA.<1> The case law supports this view of "record of" coverage. In Buckley v. Consolidated Edison Co. of New York, Inc., 127 F.3d 270 (2d Cir. 1997), for example, this Court held that the plaintiff presented sufficient evidence to support a finding of coverage under the "record of" prong. This Court ruled that, to establish "record of" coverage, the plaintiff was required to show that he had a past condition that "substantially limited one or more of his major life activities." Id. at 274. This Court found that the plaintiff's evidence was sufficient to support "an ADA-covered disability, namely a record of past drug and alcohol addiction that impaired one or more of his major life activities." Id. This Court did not attach any requirement of employer knowledge to the coverage inquiry. Instead, this Court focused solely upon the existence of a substantially limiting record.<2> In Pace v. Paris Maint. Co., 107 F. Supp. 2d 251, 261 (S.D.N.Y. 2000), aff'd, 2001 WL 327102 (2d Cir. April 3, 2001) [unpublished], the court explicitly addressed the defendant's contention "that establishment of a disability under [the 'record of' prong] requires, in addition to evidence of a record of a disability, knowledge of that record by the employer." The court ruled that there was no knowledge requirement at the coverage stage of the case. The court read this Court's decision in Buckley as making "clear that establishment of a disability under [the 'record of' prong] does not require a showing of knowledge on the part of the employer." Id. The court concluded that the plaintiff's evidence of "a history of alcoholism which formerly substantially limited his ability to work" was sufficient to support a finding of coverage under the "record of" prong. Id. at 260. These decisions represent the correct view of "record of" coverage. If an individual has a record of an impairment that, in the past, substantially limited one or more of the individual's major life activities, the individual is covered under the "record of" prong. That is true even if the employer has no knowledge of the record. II. THE EMPLOYER'S KNOWLEDGE OF THE RECORD IS RELEVANT TO THE CAUSATION ISSUE IN A "RECORD OF" CASE. Although employer knowledge is irrelevant to the coverage determination in a "record of" case, this still leaves the question of whether such knowledge has any bearing on an individual's ability to prove a claim of disability discrimination under a "record of" theory. The ADA makes it unlawful for an employer to discriminate against "a qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112(a). The "because of" language adopts the "motivating factor" causation standard applicable to claims of discrimination under Title VII of the Civil Rights of 1964. See Parker v. Columbia Pictures Indus., 204 F.3d 326, 337 (2d Cir. 2000). There is no violation under the ADA unless "disability played a motivating role in the [adverse employment] decision." Id. Plainly, "if an employer does not know of a disability, such employer cannot take an adverse action against an employee because of the disability." Pace, 107 F. Supp. 2d at 261 n.2. It follows that, in a case in which a plaintiff invokes coverage under the "record of" prong and claims that the employer took action against the plaintiff because of the plaintiff's record of disability, there can be no ADA violation unless the employer has some knowledge of the underlying record. If an employer takes action against an individual without any knowledge of the individual's record of disability, the employer has not taken action "because of" the "disability." See id. at 261 n.2, 262 (stressing that employer knowledge, while irrelevant to coverage in a "record of" case, is relevant to causation; without some knowledge of the disability record, "it is logically impossible that Defendants [took action against the plaintiff] as a result of his disability"). The Commission has acknowledged the coverage-causation distinction in its pronouncements under the ADA. In a July 1999 guidance to the field, the Commission clarified that an employer "does not need to be aware of the [charging party's] record of a substantially limiting impairment for coverage purposes." Instructions for Field Offices on Analyzing ADA Charges (July 27, 1999), 2 AMERICANS WITH DISABILITIES ACT (BNA), 70:1441, at 70:1444. The Commission went on to explain, however, that "there must be evidence that the [employer] acted on the basis of the [charging party's] record of a disability in order to find that discrimination occurred." Id. To act "on the basis" of the "record of a disability," an employer must have at least some knowledge of the record. See also Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. 1630 App., § 1630.2(k) (suggesting that, to prove a claim of discrimination under a "record of" theory, the plaintiff must show that the employer acted with some knowledge of the "record" and, in that sense, "relied" upon the record).<3> It makes sense to treat employer knowledge as an issue of causation, rather than an issue of threshold coverage. The ADA's disability definition serves the purpose of screening out individuals whose conditions, in their current, prior, or perceived states, are too de minimis to merit the protection of the statute. Sutton v. United Air Lines, Inc., 527 U.S. 471, 482-94 (1999). Where an individual has a record of an impairment that, in some prior manifestation, substantially limited one or more major life activities, the individual, by definition, merits the protection of the statute. The mere fact, however, that the individual comes within the reach of the ADA does not mean that, in any particular case, actions taken against the individual are "because of" the individual's disability. For merits purposes, it is the causation standard, not the coverage standard, that separates the wheat from the chaff. It is at that stage of the analysis that employer knowledge enters the picture. The statutory framework also supports this view. The ADA's definition of disability is found in one of the opening sections of the statute. The definition is entirely separate from the body of the statute. The definition says nothing about employer knowledge; it says nothing about causation; it says nothing about unlawful conduct. It is fully in keeping with the statute to treat employer knowledge as a merits issue, rather than a coverage issue. III. THE CAUSATION STANDARD IN A "RECORD OF" CASE IS MET BY EVIDENCE THAT THE EMPLOYER TOOK ACTION AGAINST AN INDIVIDUAL ON THE BASIS OF A DISABILITY HISTORY THAT WAS SUFFICIENT TO PUT THE EMPLOYER ON REASONABLE NOTICE OF THE POSSIBLE EXISTENCE OF A RECORD OF A SUBSTANTIALLY LIMITING IMPAIRMENT. Assuming that employer knowledge is relevant at the causation stage of a "record of" case, the remaining question concerns the level of knowledge required to provide the causal link between the individual's "record of" status and the adverse employment action. The district court did not address the knowledge issue as a component of the causation standard. It might be argued, however, even for causation purposes, that an employer's knowledge of the record must be complete. The employer must have knowledge of all the facts supporting the existence of a substantially limiting impairment. Such a knowledge requirement is too exacting. There is nothing in the statute that imposes a knowledge requirement as such. A knowledge requirement is implied from the fact that an employer cannot take action "because of" an individual's disability without having at least some knowledge of the disability. For causation purposes, it is not necessary that there be a perfect match between knowledge and fact. Within reason, the law tolerates some gap between the facts supporting the existence of a substantially limiting impairment and the facts actually known to the employer. See Lawson v. CSX Transp., Inc., 2001 WL 292999, **9-11 & n.10 (7th Cir. March 26, 2001) (facts supporting evidence of a record of a substantially limiting impairment far more extensive than facts actually known to the employer, which known facts were, nonetheless, sufficient to satisfy the knowledge requirement). A more exacting knowledge requirement, if accepted, could deal a severe blow to the practical viability of the "record of" theory. In the real world, an employer does not typically possess the entire medical record of an individual at the time it renders judgment on the individual's employment. More likely, an employer will be aware of an individual's general disability history, as revealed by a medical questionnaire, a physician's letter, a workplace conversation, or a portion of the individual's treatment record. The history known to the employer may not contain the detail necessary to establish, beyond peradventure, the existence of a record of a substantially limiting impairment. The known history, however, may well put the employer on reasonable notice of the possible existence of such a record. In our view, reasonable notice should be the touchstone. An employer should not be held liable for what it does not know but nor should it be let off the hook where it has knowledge of facts that are reasonably linked to the existence of a disability record that is of a substantially limiting nature. The knowledge requirement is met so long as there is some reasonable nexus between what the employer knows (and acts upon) and the record of the substantially limiting impairment. As it turns out, this approach closely mirrors the standard for actual disability cases. Courts have recognized that knowledge of the disability is relevant at the causation stage of an actual disability case; "an employer cannot fire an employee 'because of' [an actual] disability unless it knows of the disability." E.g., Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 932 (7th Cir. 1995). Courts, however, have not insisted upon "'precise knowledge'" of the disability. See Crandall v. Paralyzed Veterans of Am., 146 F.3d 894, 898 (D.C. Cir. 1998). The knowledge requirement is satisfied if the employer is aware of the "manifestations" of the disability under circumstances in which "it would be reasonable to infer," from that awareness, that the employer "actually knew of the disability." Hedberg, 47 F.3d at 934. Where an employer is aware of an individual's impairment and the impairment is of a kind that might well be substantially limiting, the knowledge requirement is satisfied; if it turns out that the impairment does in fact substantially limit one or more major life activities and the employer takes action on the basis of that impairment, the employer's action is "because of" the disability. See id. (citing the example of an employee "who suffers frequent seizures at work;" if "an employer admitted it fired the employee because of his frequent seizures, a reasonable inference might be drawn that the employer knew the employee had a disability"); Colter v. Yale Univ., 2000 WL 559023, **2-3 (D. Conn. March 24, 2000) (knowledge requirement met by evidence that employee "told several supervisors of her major depression" and of her "need for treatment" for the depression); see also Hopkins v. Electronic Data Sys. Corp., 196 F.3d 655, 660 (6th Cir. 1999) (requirement of employer knowledge satisfied by evidence that employer knew "or had reason to know" of the disability); Morisky v. Broward County, 80 F.3d 445, 448 (11th Cir. 1996) (employer need only have actual or "constructive" knowledge of the disability). The causation standard for actual disability cases is consistent with the ADA's requirement of reasonable accommodation, which defines discrimination to include "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability." 42 U.S.C. § 12112(b)(5)(A). That provision merely assumes knowledge of the "limitations" of a condition. An employer can have knowledge of the "limitations" of a condition without having knowledge of all facts supporting the existence of a covered disability. The flexible approach to the knowledge requirement is also supported by the lead Supreme Court authority on the "record of" category, School Bd. of Nassau County v. Arline, 480 U.S. 273 (1987). In Arline, it was undisputed that the plaintiff had a record of a substantially limiting impairment, based on her condition of tuberculosis. Id. at 281. It was equally clear that the employer had taken action against the plaintiff because of a "continued" recurrence of the tuberculosis, a recurrence that was not itself substantially limiting (in contrast to a prior manifestation of the condition, which had been substantially limiting). Id. at 276-77. There was no indication that the employer knew anything about the details of the underlying history giving rise to the record of a substantially limiting impairment. Nonetheless, the Supreme Court construed the "record of" provision in the Rehabilitation Act of 1973, the ADA's predecessor statute, as supporting the claim, stressing that, by acting upon the residual manifestations of the record (of which the employer was generally aware), the employer had, in effect, acted upon the record itself. Id. at 281-86. Arline repudiates the notion that a viable "record of" claim requires knowledge of the intimate details of the disability history. Accordingly, we believe that the knowledge requirement in ADA "record of" cases operates as follows. There is no knowledge requirement at the coverage stage. An individual is covered under the "record of" prong if the individual has a record of an impairment that, at some point, substantially limited one or more of the individual's major life activities. For causation purposes, the employer must have some knowledge of the record. The employer's knowledge, however, does not have to be complete. The knowledge requirement is satisfied if the employer is aware of facts that have some reasonable nexus to the record of a substantially limiting impairment.<4> CONCLUSION The district court erred in imposing a knowledge requirement at the coverage stage. The correct standard is one that addresses employer knowledge at the causation stage. An employer's knowledge is sufficient, for causation purposes, if the disability history known to the employer puts the employer on reasonable notice of the possible existence of a record of a substantially limiting impairment. Respectfully Submitted, GWENDOLYN YOUNG REAMS Associate General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ROBERT J. GREGORY Senior Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 April 16, 2001 (202) 663-4059 CERTIFICATE OF COMPLIANCE I, Robert J. Gregory, hereby certify that this brief complies with the type-volume limitations imposed under F.R.A.P. 32(a)(7)(B)(i) and F.R.A.P. 29(d). The brief contains 4087 words. Robert J. GregoryCERTIFICATE OF SERVICE I, Robert J. Gregory, hereby certify that on this 16th day of April, 2001, two copies of the attached brief were sent by first-class mail, postage prepaid, to each of the following counsel of record: Joseph Hein Law Office of Joseph Hein 6468 French's Hollow Road Altamont, New York 12009 Louis P. Dilorenzo Joseph C. Dole Bond, Schoeneck & King, LLP One Lincoln Center Syracuse, New York 13202-1355 Robert J. Gregory 1 In this one respect, the "record of" category is more like the actual disability category than the "regarded as" category. By its plain terms, the "regarded as" category focuses on the mental state of the employer, i.e., whether the employer "regard[s]" an individual as substantially limited in one or more major life activities. Whether an individual is "regarded as" disabled will vary from employer to employer. The "record of" category is more immutable; one either has a record of a substantially limiting impairment or one does not. 2 The panel decision in Buckley was vacated en banc on other grounds. See 155 F.3d 150 (2d Cir. 1998) (holding that the plaintiff's claim failed on the merits). The panel decision, however, is still persuasive authority on the disability issue. See Parry v. Mohawk Motors of Michigan, Inc., 236 F.3d 299, 310 (6th Cir. 2000) (citing the panel decision on the disability issue); Renaud v. Wyoming Dep't of Family Servs., 203 F.3d 723, 730 n.3 (10th Cir. 2000) (same); Stewart v. New York City Transit Auth., 2001 WL 279772, *4 (E.D.N.Y. Feb. 16, 2001) (same); Adams v. Rite Aid of Maine, Inc., 2001 WL 111314, *12 n.26 (D. Me. Feb. 8, 2001) (same). 3 Although the employer must act with some knowledge of the "record," there is no requirement that the "record" on which the employer relies take the form of a physical document or file. The intent of the "record of" provision "is to ensure that people are not discriminated against because of a history of disability." Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. 1630 App., § 1630.2(k). Knowledge of that history, however obtained, can support a "record of" claim. 4 The Commission has not reviewed the district court record in this case. Based, however, on the district court's recitation of the facts, it seems clear that Horwitz satisfied the requirement of employer knowledge, properly understood. At the time it terminated Horwitz's employment, Stickley was aware, at the very least, that Horwitz "suffered from bipolar disease for which she takes medication and had twice been hospitalized." 122 F. Supp. 2d at 351. The history disclosed to Stickley was sufficient to put Stickley on reasonable notice of the possibility that Horwitz's record was of a substantially limiting nature. Of course, to be covered under the "record of" prong of the ADA's disability definition, Horwitz must produce evidence to show that the record was, in fact, of a substantially limiting nature. Not having reviewed the district court record, we take no position on whether Horwitz's evidence is sufficient to withstand summary judgment on that issue.