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Full Opinion
KENNEDY, J., delivered the opinion of the court, in which NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, and BATCHELDER, JJâ joined. MARTIN, C.J. (pp. 1019-20) and MERRITT, J. (pp. 1020-21), delivered separate dissenting opinions, in which MOORE, J., joined, with Chief Judge MARTIN and Judges DAUGHTREY and COLE also joining in Judge MERRITTâS dissent.
OPINION
Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12182-12189 (âADAâ), prohibits discrimination on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation. In the instant case, we are asked to determine whether Title III of the ADA prohibits an employer from providing to its employees a long-term disability plan issued by an insurance company which contains longer benefits for employees who become disabled due to a physical illness than for those who become disabled due to a mental illness. For the reasons set forth below, we conclude that such a distinction is not prohibited.
I.
Plaintiff, Ouida Sue Parker, was employed by Schering-Plough Health Care Products, Inc. (âSchering-Ploughâ) from April 20, 1981 through October 29, 1990. During her employment, Parker participated in a long-term disability plan offered by Schering-Plough to its employees; the plan was issued by Metropolitan Life Insurance Co. (âMetLifeâ). Under the plan, an individual who is deemed to be totally disabled due to a mental or nervous disorder may receive benefits for up to twenty-four months, unless at the termination of the twenty-four month period, the individual was hospitalized or receiving inpatient care for the disorder. For physical disorders, however, the plan provides for benefits until the individual reaches sixty-five years of age.
On October 29, 1990, Parker became disabled due to severe depression. On April 29, 1991, Parker began to receive benefit payments under the plan. Because Parker suffered from a mental disorder, Schering-Plough terminated her payments twenty-four months later, on April 28, 1993, pursuant to the terms of the plan. Following Schering-Ploughâs denial of two administrative appeals filed by Parker, plaintiff filed this action alleging violations of the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213, and the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001-1461 (âERISAâ). The District Court granted the defendantsâ motion for summary judgment. The District Court first found that Parker did not have standing to sue under Title I of the ADA, 42 U.S.C. §§ 12111-12117, because only a âqualified individual with a disabilityâ may obtain relief under Title I and Parker was not a âqualified individual with a disabilityâ when her benefits were terminated because her disorder prevented her from performing the essential functions of her employment position. The District Court also dismissed Parkerâs claim against the defendants under Title III of the ADA, 42 U.S.C. §§ 12165-12189. MetLife was not a proper defendant under Title III, the court concluded, because Title III only covers discrimination in the physical access to goods and services, not discrimination in the terms of insurance policies. The Title III claim against Schering-Plough, Parkerâs employer, was dismissed because Title I, not Title III, governs discrimination in employment practices. Because Parker was not a qualified individual under Title I, a suit against her employer could not be maintained under the ADA. Lastly, the District Court granted summary judgment in favor of the defendants on Par
On appeal from the District Courtâs order, a panel of this Court affirmed the District Courtâs judgment as to Parkerâs ERISA claim
Because the panel concluded that the contents of insurance products are governed by Title III, it then turned to whether Title IV of the ADA, 42 U.S.C. § 12201(c), commonly referred to as the âsafe harbor provision,â precluded application of Title III to insurance products. The panel concluded that the safe harbor provision was ambiguous on its face as to whether it intended to exempt insurance products from ADA coverage. It, therefore, looked to legislative history for guidance. The panel concluded that the legislative history indicated that âinsurance practices are protected by the âsafe harborâ provision, but only to the extent that they are consistent with âsound actuarial principles,â âactual reasonably anticipated experience,â and âbona fide risk classification.â â Parker, 99 F.3d at 191. Responding to the defendantsâ argument that an insurance plan violates the ADA only if it is a âsubterfugeâ under § 12201(c), the panel declined to adopt the Supreme Courtâs definition of subterfuge pronounced in Ohio Public Employees Retirement System v. Betts, 492 U.S. 158, 109 S.Ct. 2854, 106 L.Ed.2d 134 (1989). In Betts, the Court defined the term subterfuge in the Age Discrimination in Employment Act (âADEAâ) as an intent to discriminate. See Betts, 492 U.S. at 181, 109 S.Ct. at 2868-69. Declining to follow the ADEA definition of subterfuge, the panel held that an insurance plan is a subterfuge under the ADA if it is âbased on speculation, and not on sound actuarial principles, actual or reasonably anticipated experience, or bona fide risk classification.â Parker, 99 F.3d at 191-92.
Finally, in response to Schering-Ploughâs contention that Title I, not Title III, governs employment practices, the panel held that âbased on our affirmance of Plaintiffs Title I claim, it is not clear whether Schering remains a proper defendant to the remaining claim [Title III] of this suit.â Parker, 99 F.3d at 194. The panel did not resolve this question of law; rather, it instructed the lower court that the issue was ripe for its determination on remand. Id.
Following the panelâs decision, the defendants sought rehearing en banc on the panelâs disposition of Parkerâs Title III claim. We granted their petition and vacated our prior judgment. See Parker v. Metropolitan Life Ins. Co., 107 F.3d 359 (6th Cir.1997). Accordingly, the case is again before us for our determination. Upon review, we conclude that the judgment of the District Court will be AFFIRMED.
II.
Our standard of review of a grant of summary judgment is de novo; we use the same test as used by the district court. See Brooks v. American Broadcasting Cos., 932 F.2d 495, 500 (6th Cir.1991). Summary judgment is proper if the evidence â âshow[s] that there is no genuine issue as to any material fact and that the moving party is entitled to [a] judgment as a matter of law.â â See Fed.R.Civ.P. 56(c); Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir.1988)(quoting Fed.R.Civ.P. 56(c)).
A. Title III: Places of Public Accommodation
To determine whether a benefit plan provided by an employer falls within the prohibitions of Title III, we must begin by examining the statutory text. See United States v. Gonzales, â U.S. -, -, 117 S.Ct. 1032, 1034, 137 L.Ed.2d 132 (1997); Kurinsky v. United States, 33 F.3d 594, 596 (6th Cir.1994) (citing United States v. Johnson, 855 F.2d 299 (6th Cir.1988)), cert. denied, 514 U.S. 1082, 115 S.Ct. 1793, 131 L.Ed.2d 721 (1995). The ADA generally prohibits discrimination against the disabled by employers, public entities, and by operators of public accommodations. See 42 U.S.C. §§ 12101-12213. Title III of the ADA specifically addresses discrimination by owners, lessors, and operators of public accommodations. It provides as follows:
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.
42 U.S.C. § 12182(a).
Section 12181 sets forth the following list of private entities that are considered public accommodations for purposes of Title III:
(A) an inn, hotel, motel, or other place of lodging ...
(B) a restaurant, bar, or other establishment serving food or drink;
(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;
(D) an auditorium, convention center, lecture hall, or other place of public gathering;
(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;
(G) a terminal, depot, or other station used for specified public transportation;
(H) a museum, library, gallery, or other place of public display or collection;
(I) a park, zoo, amusement park, or other place of recreation;
(J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;
(K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and
(L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.
42 U.S.C. § 12181(7)(emphasis added).
Title III specifically prohibits, inter alia, the provision of unequal or separate benefits by a place of public accommodation. See 42 U.S.C. §§ 12182(b)(1)(A)(i)-(iii). For example, 42 U.S.C. § 12182(b)(l)(A)(ii) provides that it is âdiscriminatory to afford an individual or class of individuals, on the basis of a disability ... with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals ...â 42 U.S.C. § 12182(b)(l)(a)(ii). To the extent that subsections (i), (ii), and (iii) do not explicitly state that they apply only to public accommodations, subsection (iv) expressly provides that â... the term âindividual or class of individualsâ refers to the clients or customers of the covered public accommodation ...â 42 U.S.C. § 12182(b)(l)(a)(iv).
While we agree that an insurance office is a public accommodation as expressly set forth in § 12181(7), plaintiff did not seek the goods and services of an insurance office. Rather, Parker accessed a benefit plan provided by her private employer and issued by MetLife. A benefit plan offered by an employer is not a good offered by a place of public accommodation. As is evident by § 12187(7), a public accommodation is a physical place and this Court has previously
Similarly, the good that plaintiff seeks is not offered by a place of public accommodation. The public cannot enter the office of MetLife or Schering-Plough and obtain the long-term disability policy that plaintiff obtained. Parker did not access her policy from MetLifeâs insurance office. Rather, she obtained her benefits through her employer. There is, thus, no nexus between the disparity in benefits and the services which MetLife offers to the public from its insurance office.
The Department of Justiceâs explanation of whether wholesale establishments are places of public accommodation supports our conclusion that MetLifeâs offering of a disability plan to Schering-Plough is not a service offered by a place of public accommodation. As the Department explains:
... The Department intends for wholesale establishments to be covered ... as places of public accommodation except in cases where they sell exclusively to other busi*1012 nesses and not to individuals ... [However], [i]f th[e wholesale company] operates a road side stand where its crops are sold to the public, the road side stand would be a sales establishment covered by the ADA
Of course, a company that operates a place of public accommodation is subject to this part only in the operation of that place of public accommodation. In the example given above, the wholesale produce company that operates a road side stand would be a public accommodation only for the purposes of the operation of that stand. The company would be prohibited from discriminating on the basis of disability in the operation of the road side stand, and it would be required to remove barriers to physical access ...
28 C.F.R. pt. 36, app. B at 604 (1996). Thus, the offering of disability policies on a discounted rate solely to a business is not a service or good offered by a place of public accommodation.
Furthermore, Title III does not govern the content of a long-term disability policy offered by an employer. The applicable regulations clearly set forth that Title III regulates the availability of the goods and services the place of public accommodation offers as opposed to the contents of goods and services offered by the public accommodation.
â The purpose of the ADAâs public accommodations requirements is to ensure accessibility to the goods offered by a public accommodation, not to alter the nature or mix of goods that the public accommodation has typically provided. In other words, a bookstore, for example, must make its facilities and sales operations accessible to individuals with disabilities, but is not required to stock Brailled or large print books. Similarly, a video store must make its facilities and rental operations accessible, but is not required to stock closed-captioned video tapes.5
28 C.F.R. pt. 36, app. B at 630; see also 28 C.F.R. § 36.212 (1996).
In arriving at this conclusion, the First Circuit disregarded the statutory canon of construction, noscitur a sociis. See Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 701-03, 115 S.Ct. 2407, 2415, 132 L.Ed.2d 597 (1995). The doctrine of noscitur a sociis instructs that âa ... term is interpreted within the context of the accompanying words âto avoid the giving of unintended breadth to the Acts of Congress.ââ Kurinsky v. United States, 33 F.3d 594, 597 (6th Cir.1994)(quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 1582, 6 L.Ed.2d 859 (1961)), cert. denied, 514 U.S. 1082, 115 S.Ct. 1793, 131 L.Ed.2d 721 (1995); see also Owen of Georgia, Inc. v. Shelby County, 648 F.2d 1084, 1092 (6th Cir.1981). Blackâs Law Dictionary defines the term as:
It is known from its associates. The meaning of a word is or may be known for the accompanying words. Under the doctrine of ânoscitur a sociisâ, the meaning of questionableâ or doubtful words or phrases in a statute may be ascertained by reference to the meaning of other words or phrases associated with it.
BLACKâS LAW DICTIONARY 1060 (6th ed.1990).
The clear connotation of the words in § 12181(7) is that a public accommodation is a physical place. Every term listed in § 12181(7) and subsection (F) is a physical place open to public access. The terms travel service, shoe repair service, office of an accountant or lawyer, insurance office, and professional office of a healthcare provider do not suggest otherwise. Rather than suggesting that Title III includes within its purview entities other than physical places, it is likely that Congress simply had no better term than âserviceâ to describe an office where travel agents provide travel services and a place where - shoes are repaired. Office of an accountant or lawyer, insurance office, and professional office of a healthcare provider, in the context of the other terms listed, suggest a physical place where services may â˘be obtained and nothing more. To interpret these terms as permitting a place of accommodation to constitute something other than a physical place is to ignore the text of the statute and the principle of noscitur a sociis.
Accordingly, we conclude that the provision of a long-term disability plan by an employer and administered by an insurance company does not fall within the purview of Title III.
B. Title I of the ADA Governs Employment Practices
Because the statutory framework of the ADA expressly limits discrimination in employment practices to Title I of the ADA, the District Court properly dismissed Schering-Plough, Parkerâs employer, from this action. As set out by the statute, Title I provides:
No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual 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.
42 U.S.C. § 12112(a). The regulations governing the ADA specifically provide that it is unlawful for an employer to discriminate on the basis of disability against a qualified individual with a disability in regard to â[f]ringe benefits available by virtue of employment, whether or not administered by the [employer].â 29 C.F.R. § 1630.4(f)(1996). As noted by the Equal Employment Opportunity Commission (âEEOCâ), the agency charged with administering and enforcing Title I of the
It is, thus, clear that Schering-Plough is not a proper defendant under Title III, except to the extent that it is alleged to be a plan fiduciary; discrimination in the provision of fringe benefits during employment is governed strictly by Title I and the provision of a long-term disability plan is a fringe benefit of employment. See, e.g., Equal Employment Opportunity Commân v. CNA Ins. Cos., 96 F.3d 1039, 1044 (7th Cir.1996)(âOne of th[e] terms, conditions, or privileges of employment may be a pension planâ).
Because the provision of a long-term disability plan by an employer and administered by an insurance company does not fall within the purview of Title III and because the statutory framework of the ADA expressly limits discrimination in employment practices to Title I of the ADA, the District Court properly granted summary judgment on behalf of the defendants.
C. The ADA Prohibits Only Discrimination Between the Disabled and Non-Disabled
The disparity in benefits provided in the policy at issue is also not prohibited by the ADA because the ADA does not mandate equality between individuals with different disabilities. Rather, the ADA prohibits discrimination between the disabled and the non-disabled; specifically, the ADA mandates that the owners, lessors, and operators of public accommodations provide equal access to the disabled and non-disabled. Because all employees at Schering-Plough, whether disabled or not, received the same access to the long-term disability plan, neither the defendants nor the plan diserimi
In Traynor v. Turnage, 485 U.S. 535, 108 S.Ct. 1372, 99 L.Ed.2d 618 (1988), the Supreme Court considered whether a benefit given to a certain class of disabled persons and not to others violated the Rehabilitation Act, 29 U.S.C. § 794.
The petitionersâ contention that the âwillful misconductâ provision of the GI Bill violated the Rehabilitation Act was rejected by the Court. Id. at 548-49, 108 S.Ct. at 1382. In rejecting the petitionersâ argument, the Court noted that the central purpose of the Rehabilitation Act is âto assure that handicapped individuals receive âevenhanded treatmentâ in relation to nonhandicapped individuals.â Id. at 548, 108 S.Ct. at 1382 (citations omitted). The Court clarified that â[t]his litigation does not involve a program or activity that is alleged to treat handicapped persons less favorably than nonhandieapped persons.â Id. Rather, the âwillful misconductâ provision âprovides a special benefit to disabled veterans who bear no responsibility for their disabilities that is not provided to other disabled veterans or to any able-bodied veterans.â Id. at 549, 108 S.Ct. at 1382. The benefits provided to a particular class did not violate the Act, in the Courtâs view, because â[t]here is nothing in the Rehabilitation Act that requires that any benefit extended to one category of handicapped persons also be extended to all other categories of handicapped persons.â Id. Thus, the Court held it is ânot inconsistent with the Rehabilitation Act for only those veterans whose disabilities are not attributable to their own âwillful misconductâ to be granted extensions of the 10-year delimiting period applicable to all other veterans.â Id.; see also Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985)(Tennesseeâs generalized limitations on Medicaid payments, which fell disproportionally on disabled individuals because of their greater medical needs, did not violate the Rehabilitation Act).
Following the Supreme Courtâs decision in Traynor, the United States Court of Appeals for the District of Columbia held in Modderno v. King, 82 F.3d 1059 (D.C.Cir.1996), cert. denied, â U.S. -, 117 S.Ct. 772, 136 L.Ed.2d 717 (1997), that the Foreign Service Benefit Plan provided to foreign service officers and their spouses, which limited lifetime coverage for mental health benefits to $75,-000 while placing no similar restriction on benefits for physical illnesses, did not violate the Rehabilitation Act. The D.C. Circuit found that, if across-the-board limits were permissible in Alexander v. Choate, then an insurance provider could cap the benefits for all illnesses. Id. at 1062. When an insurance provider, instead, places a limit on only one type of illness, such as mental illness, the disabled, as a class, benefit; if the cap were Additional Information