The Second Circuit reverses a district court and enforces an EEOC subpoena to investigate a religious-accommodation claim. The Ninth Circuit wades into a current circuit split about whether § 504 of the Rehabilitation Act applies to independent contractors, finding that it does in the case of an anesthesiologist with sickle cell anemia.
EEOC v. United Parcel Service, Inc., No. 08-5348 (2d Cir. Nov. 19, 2009): Two charging parties, Muslims who wore beards for religious reasons, complained of being prevented from working as drivers for Big Brown. The district court denied a petition by the EEOC to enforce a subpoena to investigate the claims.
The Second Circuit reverses, holding that the requests were relevant to the agency’s investigation: “we hold that the district court applied too restrictive a standard of relevance in determining that information about how religious exemptions to the UPS Appearance Guidelines are (or are not) granted nationwide was not relevant to the charges being investigated. The following facts and factors are relevant to our decision. First, the Appearance Guidelines apply to every UPS facility in the country. . . . Second, until 1999, UPS did not allow employees who, for religious reasons, could not meet the Appearance Guidelines to work in public-contact positions. . . . Third, [charging parties] Abdullah and Farhan were both told that they could not drive a UPS truck while wearing a beard. Neither was told he could request an exemption from the policy for religious reasons, and when Farhan specifically requested a form to apply for a religious accommodation, he was told by two different UPS offices that none existed. Finally, Farhan’s EEOC charge alleges not only one specific case of failure to accommodate, but a pattern or practice of religious discrimination in failing to accommodate those who cannot meet the UPS Appearance Guidelines for religious reasons.”
Despite that UPS had individual, possibly dispositive defenses against each charging party, the court holds that the EEOC could continue to investigate. “UPS’s arguments as to the merits do not prevent the EEOC from investigating these charges. Indeed, at the investigatory stage, the EEOC is not required to show that there is probable cause to believe that discrimination occurred or to produce evidence to establish a prima facie case of discrimination.”
Judge Newman, concurring, writes that “I recognize that the issue of relevance of information sought by an administrative subpoena might comprehend factual issues. Determining what information is sought and what investigative purposes an agency is pursuing might well be matters of fact. . . . But once those factual matters are resolved (or are undisputed), the determination of whether the information sought bears a sufficient relationship to the investigative purposes to permit enforcement of the subpoena is predominantly a matter of law, requiring adherence to the standard of affording deference to the agency. . . . In rare cases, the relationship might be so attenuated that a district court, or an appellate court reviewing a district court’s enforcement order, might properly rule that the broad scope accorded an agency has been exceeded. And when, as in this case, a district court fails to accord appropriate scope to an agency’s legitimate demands for information, an appellate court is entitled to rule that the district court has committed an error of law.”
Fleming v. Yuma Regional Medical Center, No. 07-16427 (9th Cir. Nov. 19, 2009): Section 504(d) of the Rehabilitation Act, 29 U.S.C. § 794(d), adopts “the standards applied under title I of the Americans Disabilities Act . . . as such sections relate to employment.” Yet § 504 by its terms is not limited to employment claims, and so — the face of this paradox — courts have struggled with whether this subsection limits the scope of Rehabilitation Act liability to employers. The Sixth and Eighth Circuits hold that Title I is incorporated in whole, limiting liability to employers, while the Tenth Circuit holds that this incorporation language was intended to cover only the substantive “standards” of Title I.
The Ninth Circuit agrees with the Tenth and holds that an independent contractor may bring suit under § 504. It relies on (1) the statutory definition of “programs and activities” covered by the Rehabilitation Act, not limited to employment relationships; (2) § 504(d) does not use the term “incorporate” and refers only to the “standards used to determine” liability under Title I of the ADA; (3) the violence that would be done to the scope of the Rehabilitation Act if all of the ADA’s limitations applied (e.g., the minimum employer size); and (4) there would be substantial duplication between the ADA and the Rehabilitation Act in the definition of key terms.