938 F.3d 1305
11th Cir.2019Background:
- Kimberly Lowe, a massage therapist at Massage Envy-South Tampa, was told three days before a planned October 2014 trip to Ghana that she would be fired if she went because the owner feared she might contract Ebola and infect others.
- Lowe was terminated before travel; she went to Ghana, did not contract Ebola, and never returned to work at Massage Envy.
- Lowe filed an EEOC charge; the EEOC sued under the ADA alleging (1) Massage Envy "regarded" Lowe as disabled (would contract Ebola), (2) association discrimination, and (3) unlawful interference; Lowe moved to intervene as an aggrieved employee.
- The district court dismissed the EEOC’s complaint and denied leave to amend the interference claim; it also terminated Lowe’s pending motion to intervene as moot.
- The Eleventh Circuit affirmed: it held the ADA’s "regarded as" prong does not cover an employer’s perception that a presently healthy employee might become disabled in the future, the association claim failed for lack of a known association with a specific disabled person, and the proposed interference claim was futile; the court found the district court’s failure to rule on intervention was error but harmless.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "regarded as having such an impairment" covers an employer's belief that an employee may become ill in the future | EEOC: "regarded as" should include perception that employee will imminently contract a disease (future tense via Dictionary Act) | Massage Envy: "regarded as" requires perception that employee has a current (or past) impairment | Held: Rejected EEOC; "regarded as" requires perception of a current (non‑transitory, non‑minor) impairment at time of adverse action |
| Whether association discrimination covers fear of contact with unknown disabled persons while traveling | EEOC: termination was based on Lowe’s association with people in Ghana whom employer believed had Ebola | Massage Envy: employer only feared possible contact with unknown infected persons; no known associate with a disability | Held: Rejected EEOC; §12112(b)(4) requires known association with a specific person having a disability |
| Whether EEOC could amend to add an unlawful interference claim | EEOC: employer coerced/intimidated Lowe by threatening termination, interfering with ADA rights | Massage Envy: Lowe had no ADA rights at firing (not disabled, no association), so interference claim fails; alternative: failure to exhaust | Held: Denied leave as futile; interference claim fails because Lowe had no ADA rights at the time of discharge |
| Whether district court erred by not ruling on Lowe’s timely motion to intervene | Lowe: had statutory right under §2000e‑5(f) to intervene; court should have ruled on the motion | District court: terminated pending motions as moot after dismissal | Held: Court erred by not ruling, but error was harmless because Lowe’s claims were identical to EEOC’s and would have been dismissed for same reasons |
Key Cases Cited
- Sutton v. United Air Lines, 527 U.S. 471 (defines disability categories under the ADA)
- Mazzeo v. Color Resolutions Int’l, 746 F.3d 1264 (disability assessed at time of adverse action)
- Chevron Phillips Chem. Co., 570 F.3d 606 (time of adverse action is the relevant moment to evaluate disability)
- EEOC v. BNSF Ry. Co., 902 F.3d 916 ("regarded as" requires perception of a current impairment)
- Adair v. City of Muskogee, 823 F.3d 1297 (elements for a §12102(3)(A) regarded‑as claim)
- Morriss v. BNSF Ry. Co., 817 F.3d 1104 (ADA prohibits actions based on perception of existing impairment, not future possibility)
- Freilich v. Upper Chesapeake Health, 313 F.3d 205 (loose or generalized association with disabled persons insufficient for §12112(b)(4))
- EEOC v. Waffle House, 534 U.S. 279 (employees have the right to intervene in EEOC enforcement suits)