Print

Rehabilitation Act Applies To Failure To Hire Disabled Independent Contractor

Volume 8, Issue 15
December 11, 2009

Before the Americans With Disabilities Act (ADA) was enacted, those companies with a program or activity receiving federal funds (as well as certain governmental units) were subject to the Rehabilitation Act of 1973, the first major federal legislation prohibiting discrimination against the disabled. The ADA was modeled on the Rehabilitation Act. Section 504 of the "Rehab Act" creates a private right of action for those asserting a violation.

Because section 504(d) of the Rehabilitation Act incorporates the employment provisions of the ADA, a panel of the Ninth Circuit Court of Appeals recently allowed an independent contractor - a physician - to maintain a claim for disability discrimination against a hospital that essentially cancelled the physician's contract after refusing an accommodation. The physician, who suffers from sickle cell anemia, had applied for an anesthesiologist position at Yuma Regional Medical Center in Arizona. Yuma told the physician it could not accommodate his operating room and call schedules, and the doctor declined to accept this condition. Although a district court held that the physician was an independent contractor who was not covered by the Rehab Act, the Ninth Circuit Court reversed, allowing his claim to proceed in litigation.

The Ninth Circuit's decision is in conflict with those of other federal appellate courts, but remains the law here in Nevada until dealt with by the U.S. Supreme Court or Congress. All companies receiving federal funds should keep in mind this decision when dealing with independent contractors. Fleming v. Yuma Regional Medical Center, www.ca9.uscourts.gov/datastore/opinions/2009/11/19/07-16427.pdf.

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.