My most popular blog entry this quarter by far is whether you can get compensatory and punitive damages for retaliation claims, which can be found here. This week’s blog entry explores a different topic but related, which is whether a corporation can bring a retaliation claim and not just an individual. Our case today is Michigan Flyer, LLC v. Wayne County Airport Authority
in 2014, two individuals sued the Wayne County Airport Authority for violating the ADA when the Airport Authority changed the pickup and drop off location for certain bus operators transporting persons with disabilities to the McNamara terminal at the Detroit Metropolitan Airport. In particular, buses operated by Michigan Flyer and Indian Trails were rerouted from the pickup and drop-off point located just outside the international area of the airport’s McNamara terminal to a location outside and approximately 600 feet away from the indoor waiting area of the McNamara ground transportation center. Michigan Flyer and Indian Trails assisted the plaintiffs in that case by preparing affidavits and giving testimony that the plaintiffs relied on in support of their position that the airport violated the ADA’s requirements in constructing and operating its ground transportation center. That case settled. However, immediately after the settlement, the airport authority retaliated against Michigan Flyer and Indian Trails by: unilaterally reducing the amount of time that their buses could stop at the ground transportation center to load and unload passengers; forcing their drivers to circle the airport instead of stopping in their assigned spaces, even when spaces were available; forcing their drivers to vacate assigned spaces before the scheduled departure times even where there were no other vehicles waiting to use the spaces; and the prosecution of frivolous misdemeanor charges based upon tickets issued to the two companies for prohibited sign displayed at a desk used by their employees in the ground transportation center. The companies brought suit alleging such conduct was retaliation in violation of 42 U.S.C. § 12203. The defense responded that even if the allegations were true, they failed to state a claim because retaliation does not apply to corporations being retaliated against just individuals.
In holding that only individuals could bring retaliation claims for violating the ADA, the court reasoned as followed:
1. In order to prove a prima facie case for retaliation a plaintiff must show: 1) the plaintiff engaged in activity protected by the ADA; 2) the defendant knew of that activities; 3) the defendant took an adverse action against plaintiff; and 4) the adverse action was caused or motivated by the protected activity.
2. An adverse action is an action that a reasonable individual would have found to be materially adverse. Further, the substantial interference with the defendants business operations, mentioned above, arguably put those businesses at a competitive disadvantage and therefore, such action could be reasonably considered to be materially adverse. The facts as alleged were such that the other elements of a prima facie case were met as well.
3. 42 U.S.C. § 12203(a) states: “no person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.”
A. The word “person,” includes a corporation, company, association, firm, partnership, society, and joint stock companies as well as individuals.
B. The plain meaning of the statutory language “individuals,” restricts itself to a natural person and in particular to distinguishing between a natural person and a corporation.
C. There is no indication from reading the ADA itself that Congress intended the word “individual,” to mean anything else other than a natural person.
D. The term “individual,” is used over 300 times in the ADA and throughout much of that text, the term is clearly being used to refer to a natural person. Such a use is consistent with the purpose of the ADA, which is to address and eliminate discrimination against individuals with disabilities, and only a natural person could be a person with a disability within the meaning of the ADA. The court noted that it was obvious that a disability could not be a condition applicable to artificial entities such as the Corporation. The definition of disability under the ADA is clearly referencing a natural person.
E. Looking at the prohibition against retaliation shows that the word “individual,” is posed against the word “person,” within the same sentence thereby suggesting that the two terms have very different meanings.
F. In drafting the act, Congress certainly knew how to use the term interpreted to include artificial entities as well as natural persons, but they didn’t do so with respect to the retaliation provision. That is, Congress could have prohibited any “person,” from retaliating against “another person,” but they did not do it that way. Instead, they used two distinct terms, “individual” and “person.”
G. In the absence of an express statutory definition to the contrary, the term, “individual” is generally construed to be a subset of the term, “person.”
H. The plaintiff’s did not cite in their briefing any decision holding or even suggesting that the terms, “individual” and “person,” are supposed to mean the same thing. In fact, the weight of authority is to the contrary. In the situations where retaliation claim brought by organizations were allowed to proceed, those complaints also had joined with them named plaintiffs who are natural persons with disabilities or the court found that the organization had organizational standing to pursue such claims on their behalf.
I. While it is true that the ADA should be construed broadly in order to effectuate its purposes, that does not justify an overbroad application of the law’s provisions at odds with any sensible reading of the plain language.
J. The provision of the ADA talking about attorneys fees does not change any of the analysis because that provision focuses on “prevailing party,” which can be either a natural person or an artificial entity.
K. While commentary to a Department of Justice regulation does use the term, “person” when explaining the retaliation regulation, that interpretation does not prevail because the substantive language in the regulation that it is trying to explain clearly focuses on individual. Further, agency interpretations of statutory language are immaterial where the plain language of the statute is clear and unambiguous.
1. This case clearly sets forth that only a natural person can bring a retaliation claim. The reasoning of this court, to my mind anyway, seems to be pretty strong for that proposition.
2. Is there a workaround? There may be. In particular, the final implementing regulations for both title II (the title II final regulations referring to associational discrimination can be found here) and title III of the ADA (the title III final regulations referring to associational discrimination can be found here), have nearly identical language with respect to discrimination based on associating with a person with a disability. The only difference between the two provisions is the first three words (“public entity,” v. “a public accommodation”). In particular, those regulations state: “a public accommodation [public entity if title II] shall not exclude or otherwise deny equal goods, services, facilities, privileges, advantages, accommodation, or other opportunity to an individual or entity (emphasis mine) because of the known disability of an individual with whom the individual or entity (emphasis mine) is known to have a relationship or association.” Specifically note that the language of both of these regulations explicitly uses the terms, “individual or entity.” What that means is another nail in the coffin with respect to a corporation bringing a retaliation claim. However, it also means by the same analysis that a corporation would be able to bring a disability discrimination claim alleging violation of the ADA because an individual or corporation discriminated against them based upon their association with a person with a disability. Finally, these regulations went through the proper rulemaking process and considering the nature of the ADA would likely be entitled to Chevron deference, and there are cases holding that association discrimination applies to title II, here, and title III, here, of the ADA