Ninth Circuit Benchslaps EEOC’s Perplexing ADA Position Shift

By John Doran

The Ninth Circuit Court of Appeals recently held that an employer may use after-acquired evidence to demonstrate that an employee is not qualified and therefore is not entitled to ADA protection. Anthony v. TRAX International Corporation, No. 18-15662 (9th Cir. April 17, 2020). In reaching this holding, the Court flatly rejected the EEOC’s attempt to disregard its own regulations in support of the plaintiff’s claims.

TRAX hired Anthony as a Technical Writer I. TRAX is a government contractor, and under the terms of the contract, the position required a bachelor’s degree. Anthony suffered from PTSD. When she ran out of FMLA time (which had already been extended), TRAX discharged her. Anthony sued under the ADA claiming discrimination and failure of the interactive process. During the litigation, TRAX learned that Anthony lied on her application and did not have a bachelor’s degree. The trial court awarded summary judgment to TRAX based on this after-acquired evidence because Anthony was never qualified for the position in the first place.

On appeal, the EEOC filed an amicus brief supporting Anthony. The EEOC argued that, although its regulations clearly augured against Anthony’s claims because she was not actually qualified for the position, the Court should ignore the regulations and reject the use of after-acquired evidence when evaluating whether an employee is qualified for a position under the ADA. The EEOC essentially took the position that an employer cannot use after-acquired evidence to prove that a plaintiff was not qualified for the job under the ADA unless the employer discharged the plaintiff due to a lack of qualifications in the first place. 

But the Ninth Circuit would have none of this. Describing the EEOC’s argument against its own regulations as perplexing, the Court held that an ADA plaintiff must prove that she is “qualified” under the Act, and an employer may rely on after-acquired evidence to show otherwise. The Court found that Anthony was not qualified under the ADA because she did not have a bachelor’s degree, even if TRAX did not know this at the time it fired her. Because Anthony was not qualified for her position, she was not entitled to a reasonable accommodation, and TRAX was not required to engage in the interactive process before discharging her. 

While this is a logical result despite the EEOC’s illogical argument, it is not a complete win for employers. The case is unique because the bachelor’s degree requirement was absolute and the employer had no way to waive it.  Where a particular qualification is more malleable, or where the supposed qualification is actually a concocted proxy for disability discrimination, an employer may not fare as well.