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Flynn v. Distinctive Home Care, Inc., No.15-50314 (5th Cir. Feb. 1, 2016)

Taking sides in a widening split in the circuits, the Fifth Circuit holds that an independent contractor - here, a pediatrician working on an United States Air Force base - can bring a claim for disability discrimination under the Rehabilitation Act of 1973 against the clinic where she practiced.

Flynn v. Distinctive Home Care, Inc., No.15-50314 (5th Cir. Feb. 1, 2016): Dr. Flynn practiced pediatric medicine through a contractor (first Spectrum, then Distinctive) that contracted with the USAF to provide medical services. On May 15, 2013, Dr. Flynn was diagnosed with Autism Spectrum Disorder-Mild ("ASD-M"), "a psychological disorder characterized by significant difficulties in nonverbal communication and social interaction, as well as restricted and repetitive patterns of behavior and interests."

Around the same time, because of complaints about Dr. Flynn's allegedly erratic behavior in front of patients, an officer responsible for overseeing Distinctive's contract told the company's president "that it was in the best interest of the Government if Dr. Flynn was removed from providing services." In a subsequent conference call on June 7, 2013, Dr. Flynn asked to be reinstated with accommodations. But on June 28, 2013, the Government responded that it could not accommodate Dr. Flynn's request.

The district court held that Dr. Flynn could not bring a claim under the Rehabilitation Act as an independent contractor. The Fifth Circuit reverses.

The panel observes that courts have been divided over the standing of independent contractors under the act. Compare Fleming v. Yuma Reg'l Med. Ctr., 587 F.3d 938, 939 (9th Cir. 2009), cert. denied, 561 U.S. 1006 (2010) (allowing independent contractor claims) with Wojewski v. Rapid City Reg'l Hosp., Inc., 450 F.3d 338, 345 (8th Cir. 2006). 

It compares the Rehabilitation Act's coverage of discrimination by organizations receiving federal financial aid to the ADA Title I's limitation to "employer[s]." While the panel notes that "Congress added subsection (d) to Section 504 of the Rehabilitation Act" to incorporated portions of the ADA by reference, to iron out inconsistencies in enforcement, the amendment did not specify whether Section 504(d) incorporated the Title I prohibition on discrimination suits brought by independent contractors.

The panel holds that ADA's limitation to "employers" was not incorporated into Section 504(d):

".... Title I prohibits discrimination 'in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.' Section 504 of the Rehabilitation Act, by contrast, is far broader. It prohibits discrimination 'under any program or activity receiving Federal financial assistance,' and 'program or activity' is defined to include 'all of the operations of . . . an entire corporation, partnership, or other private organization, or an entire sole proprietorship.'"

It also notes that Section 504(a) specifically authorizes discrimination suits against "any program or activity receiving Federal financial assistance," not limited to employers. While recognizing that "[t]he ADA and the Rehabilitation Act generally are interpreted in pari materia," the panel observes that "generally" does not mean always: "we agree that the Rehabilitation Act generally adopts 'the substantive standards for determining what conduct violates' Title I of the ADA," but "hold - as our sister Circuits have held - that Section 504 does not incorporate 'the definition of who is covered under' Title I."

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