In a recent decision, the Fifth Circuit cleared up some confusion regarding how to show disability discrimination. In EEOC v. LHC Group, Inc., No. 13-60703 (5th Cir. 12/11/2014), the court noted that Fifth Circuit jurisprudence had three different versions of a prima facie case for showing disability discrimination. All three versions required the plaintiff to show that he 1) has a disability, and 2) he is qualified to do the job he has held. LHC Group, slip opinion, p. 6. But, then the precedent diverges. One line of cases would require the plaintiff to show 3) that he was subject to an adverse employment action on account of his disability. This line of cases started with Zenor v. El Paso Healthcare System, Ltd., 176 F.3d 847 (5th Cir. 1999), which relied on an earlier decision in Chiari v. City of League City, 920 F.3d 311 (5th Cir. 1991).
The second line of cases would require the employee to show 3) he was subject to an adverse employment action, and 4) he was replaced by a non-disabled person or was treated less favorably than non-disabled employees. This line of cases stretched back to Daigle v. Liberty Life Insurance Co., 70 F.3d 394 (5th Cir. 1995). And, a third line of cases would require the plaintiff to show 3) he was subjected to an adverse employment action on account of a disability or the perception of a disability, and 4) he was treated less favorably than non-disabeld employees. The court cited McInnes v. Alamo Community College District, 207 F.3d 276 (5th Cir. 2000). The court noted that the third formulation actually required a plaintiff to show that his adverse action was related to a disability twice.
The court clarified that the court should have been using the first formulation, because that decision came first, after all. Too, the second line of cases was intended for a case in which a disabled person was not hired. While,the first formulation addressed situations regarding continued employment. And, the other circuits have adopted similar versions of the first formulation. So, using the first version of the prima facie case, the court finds the plaintiff must show 1) he has a disability, 2) he was qualified for the job, and 3) he was subject to an adverse employment decision on account of his disability. LHC Group, slip opinion, p. 9. See opinion here.
And, on the merits of the case before it, the Court overruled in part and sustained in part the grant of summary judgment. The lower court erred in a couple of respects. It discounted statements made by managers that the plaintiff was terminated because he had become a liability. The lower court found this statement to be “presumed hearsay.” Yet, as the Fifth Circuit noted, they are statements made by a party opponent. Even though the statements were contained in a charge of discrimination, they would be admissible at summary judgment. The EEOC charge is competent evidence at the summary judgment stage, said the appellate court. It would seem apparent that any charge ought to be admissible. It is a sworn statement, after all.
The court has injected some clarity in disability discrimination law. It has also invested in some sound scholarship. Let us hope the Fifth Circuit continues both trends.