The Anthony decision provides welcome support for employers who find that a discrimination plaintiff has concealed a lack of basic credentials to hold a job.
In April 2020, the Ninth Circuit Court of Appeals ruled that an employer can defeat an Americans with Disabilities Act (ADA) claim with after-acquired evidence that the ex-employee lacked a required college degree. Anthony v. Trax International Corp., 955 F.3d 1123 (9th Cir. April 17, 2020).
In 1995, the United States Supreme Court limited employers’ use of evidence of misconduct acquired after a plaintiff was terminated from a job. In an age discrimination case, McKennon v. Nashville Banner, 513 U.S. 852, 115 S. Ct. 879 (1995), the Court said that employers could not use after-acquired evidence to eliminate the employer’s liability to a discrimination plaintiff. The most that employers could do with after-acquired evidence was cut off an employee’s damage recovery as of the date of discovery of the misconduct.
McKennon did not address an employer’s ability to defeat an employee’s entire claim when the after-acquired evidence showed that the employee lacked the basic qualifications for the job, such as a degree or license.
The Facts of the Anthony Case
Anthony’s facts are simple. Trax employed Anthony as a technical writer. Trax required technical writers to have a bachelor’s degree from a four-year college. Anthony misrepresented that she had this degree in her job application. She later asked to work from home because of a disability. Trax refused the request and terminated Anthony.
Anthony sued, claiming discrimination under the ADA because the employer failed to offer her a reasonable accommodation for her disabilities. During the litigation, the employer became aware that Anthony had no degree. The degree was not just a prerequisite for Anthony’s job; the employer had billed the government a contract rate that assumed that Anthony had a degree.
The employer moved for summary judgment on the ground that Anthony was not a qualified individual entitled to the ADA’s protection against employment discrimination. The ADA prohibits discrimination against individuals who are “qualified to perform the essential functions of the job”.
In 2018, the Arizona United States District Court granted summary judgment to the employer and dismissed Anthony’s case. Anthony appealed to the Ninth Circuit.
The Ninth Circuit panel unanimously upheld the lower court’s ruling in favor of the employer.. The Ninth Circuit noted that the plaintiff had the burden of showing that she was a “qualified individual” as part of her prima facie disability case. Since the plaintiff could not show that she had the basic qualifications for the job, her case failed.
What does the ADA define as a “qualified individual”?
The ADA defines a “qualified individual” as someone who “with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” The Court said that the Equal Employment Opportunity Commission (EEOC) had established a two-step inquiry on an individual’s qualifications. The first step was to ascertain whether the individual satisfies the prerequisites for the job- i.e., the “requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desired.” The second step was the inquiry into the individual’s ability to perform the essential functions of the position, with or without reasonable accommodation.
The Court then held, “At no time did Anthony satisfy the prerequisites of the qualified individual element of an ADA prima facie case: it is undisputed that she never possessed the requisite bachelor’s degree and …[under] Trax’s government contract, the bachelor’s degree was an actual requirement of the … position that could not be satisfied by any functional equivalent.” The Court dismissed the EEOC’s contention that the employer could not use after-acquired evidence, discovered during the suit, to defeat Anthony’s prima facie case.
The Court also dismissed Anthony’s contention that McKennon v. Nashville Banner precluded the use of after-acquired evidence. The Court distinguished between the ADA, which protects only qualified individuals, and the Age Discrimination in Employment Act in McKennon, whose protections extend to any individual employee subjected to age discrimination.
Further, in McKennon, the employer sought to use the after-acquired evidence to show a legitimate non-discriminatory reason for the employee’s discharge. In Trax, the after-acquired evidence defeated the plaintiff’s claim at an earlier stage in the case- the stage where plaintiff had to show that she had the minimum qualifications for the job. The Court held that employers could look to the employee’s ability to satisfy the basic job prerequisites before addressing whether reasonable accommodation could enable the employee to perform essential job functions.
The Ninth Circuit’s decision in Anthony v. Trax allows employers to look into an ex-employee’s ability to meet threshold job qualifications after the ex-employee makes an ADA discrimination claim. The decision is consistent with the relatively few decisions from other circuits on this issue. The decision is also consistent with logic. An employee lacking the basic credentials for a job cannot, by definition, have the qualifications to perform the job.
It is still open to question whether an employer can use after-acquired evidence to challenge an ex-employee’s qualifications where a statute does not state that an employee must be qualified to perform a job. But the requirement of qualification for a job position is not unique to the ADA; the requirement is one element of the test that an employee must satisfy to go forward with a prima facie case of discrimination. So the ability to use after-acquired evidence in this threshold area may arise again.