On November 25, 2014, the 7th Circuit affirmed the district court’s grant of summary judgment in a lawsuit alleging violations of the Americans with Disabilities Act for disability discrimination,failure to accommodate, and employment termination for disability-related reasons. The ADA creates a cause of action for qualified individuals with a disability where there has been discrimination in regard to the discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment by a covered entity. An employee must establish that she was employed by the entity thatshe seeks to hold liable under the ADA.

However, it is not always clear who or what entity is the proper employerto be namedin an EEOC Charge and lawsuit alleging employment discrimination under the ADA, ADEA, or Title VII. When more than one entity is potentially involved in the employment relationship, there are two tests that have been applied by courts to determine who qualifies as an employer under the statute. The single employer test argues that two nominally distinct entities in fact comprise a single employer. The joint employer test acknowledges that two entities are in fact distinct, but argues thateach exercises sufficient control over the terms and conditions of employmentthat they are joint employers, either of which faces potential liability under the statute. An entity other than the actual employer may be considered a joint employer only if it exerted significant control over the employee. Factors to be considered include: (1) supervision of the employees’daily activities; (2) authority to hire or fire employees; (3) promulgation of work rules and conditions of employment; (4) issuance of work assignments; and (5) issuance of operating instructions. However, for a joint-employer relationship to exist, each alleged employer must exercise control over the working conditions of the employee.

The purpose of establishing joint employer status is to make an entity other than the principal employer liable for conduct relating to a specific employee. Written for the specific context of temporary employment agencies sending employees to clients, the guidance in the EEOCCompliance Manual specifically addresses whether and under what circumstances the employment agency and client qualify as joint employers, and the agency can be liable for the actions taken by its client. The agency is liable if it participates in the client’s discrimination. For instance, if the temp agency honors its client’s request to remove a worker from a job assignment for a discriminatory reason and replace her with an individual outside of her protected class, the temp agency is liable for the discriminatory discharge. The agency is also liable if it knew or should have known about its client’s discrimination and failed to promptly implement remedial measures within its control.

InWhitaker, the 7th Circuit held that even though the County was the plaintiff’s official employer, it had no involvement in or authority to override the employment decisions (made by the State)that she allegedviolated the ADA, and, therefore, the County wasnot liable under the ADA for the States’ employment decisions. There was no evidence that the County participated in the alleged discriminatory conduct or failed to take corrective measures within its control. Since the plaintiff apparentlyhad not named the State as a respondent in her EEOC Charge, she was out of luck.

On May 28, 2014, the 7th Circuit affirmed summary judgment in an Americans with Disabilities Act case, in which the plaintiff alleged failure-to-accommodate and disparate treatment. Bunn v. Khoury Enterprises, Inc., No. 13-2292 (May 28, 2014). The opinion states the elements and methods of proof for ADA failure-to-accommodate and disparate treatment claims. The ADA provides that a covered employer shall not discriminate against a qualified individual on the basis of disability. Discrimination includes not making reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation its business. The 7th Circuit has established a three-part test for failure-to-accommodate claims: (1) the employee is a qualified individual with a disability; (2) the employer is aware of the employee’s disability; and (3) the employer failed to reasonably accommodate the disability.

The 7th Circuit found that the employer had provided a reasonable accommodation and, therefore, affirmed the district court’s court grant of summary judgment. The 7th Circuit also stated that there is no independent cause of action for an employer’s failure to engage in the interactive process required by the ADA.

There are two methods of proof for an ADA disparate treatment claim: the direct method and the indirect burden-shifting method. Under the direct method, the plaintiff must establish: (1) that he or she is disabled within the meaning of the ADA; (2) that he or she is qualified to perform the essential functions of the job with or without a reasonable accommodation; and (3) that he or she suffered an adverse employment action because of the disability. The plaintiff may meet his or her burden of proof under the direct method with direct or circumstantial evidence. There are four types of circumstantial evidence under the direct method: (1) suspicious timing; (2) ambiguous statements or behavior toward other employees in the protected group; (3) evidence, statistical or otherwise, that similarly situated employees outside of the protected group systematically received better treatment; and (4) evidence that the employer offered a pretextul reason for the adverse employment action. The 7th Circuit found that the plaintiff offered no direct or circumstantial evidence.

In order to establish a prima facie case of disability discrimination under the indirect method of proof, a plaintiff must show that: (1) he or she has a disability under the ADA; (2) he or she met the employer’s legitimate job expectations; (3) he or she suffered an adverse job action; and (4) similarly situated employees without disabilities were treated more favorably. If the employee establishes a prima facie case, the burden shifts to the employer to produce a legitimate, non-discriminatory reason for the adverse employment action. The employer’s burden is only one of production, not persuasion. The burden of persuasion remains with the plaintiff at all times. If the employer produces a legitimate reason, the employee must prove by a preponderance of the evidence that the employer’s stated reason is a lie. The 7th Circuit affirmed summary judgment based upon three finding: (1) the plaintiff was not meeting the employer’s legitimate expectations; (2) the plaintiff failed to identify any similarly situated employee who was treated more favorably; and (3) the plaintiff failed to offer any evidence that the employer’s explanations are lies.