Stanley Oral Argument at the Supreme Court

As promised, here is a blog entry on the Stanley oral argument. This blog entry will discuss the question that the various Justices asked to each of the attorneys presenting arguments to the Court. In the last section, I will give my thoughts on what transpired. The blog entry is a quick read, and so the reader will probably want to read the whole thing.

I

Questions Asked by the Justices to Stanley’s Attorney

1. Justice Thomas and Justice Jackson started off by wondering whether the narrow way to resolve the case had been properly preserved. That is, the facts of this case are such that you could decide that the plaintiff was a qualified person with a disability while she was still working for her employer. She had developed Parkinson’s but worked for a while before having to retire. Plaintiff’s attorney and the Solicitor Gen. argued that this argument had been properly preserved below.
2. Justice Jackson wanted to know if the plaintiff had made out a prima facie case of discrimination while she was still employed by her employer. If so, she wondered whether that would be post-employment discrimination not subject to the ADA arguably.
3. Justice Alito wondered if the qualified requirement even applied to the situation where compensation and benefits were involved.
4. Chief Justice Roberts sought clarification as to what qualified means with respect to Title I of the ADA.
5. Justice Sotomayor wondered if Stanley’s argument would not open a big trapdoor expanding the reach of the ADA in a way that could be worrisome. She also wondered whether Stanley’s attorney agreed with the Solicitor General view that an employer discriminates against a retiree with respect to benefits she earned while she was a qualified individual.
6. Justice Alito wondered quite a bit how courts would go about looking at cases like this since this case does not involve reasonable accommodations, which is the kind of case most courts are familiar with. In the discussion of this question, whether the ADA covers disparate treatment and the safe harbor for insurance making decisions came up.
7. Justice Sotomayor wondered if not allowing people to pursue a claim with respect to retirement benefits they previously earned would not discourage people with disabilities from going into the workplace.
8. Justice Sotomayor asked whether there were other laws that might serve as a remedy besides the ADA.
9. Justice Jackson wondered if the facts of this case were such that the case didn’t necessarily involve just post-employment discrimination.

II

Questions Asked by the Justices to Solicitor Gen.

1. Justice Thomas asked whether the narrow argument that the case could be decided upon was properly preserved below.
2. Justice Alito wanted to know if the Lilly Ledbetter pay act was an alternative.
3. Justice Alito wanted to know how a case like this would be decided by the courts since reasonable accommodations were not involved.
4. Justice Kagan wanted to know if other discrimination laws might be applicable.
5. Justice Alito wanted to know how this case gets considered in light of the fact that the Civil Rights Act and the ADA are fundamentally different in that the ADA is insisting on something different from equal treatment, at least with respect to reasonable accommodations.
6. Justice Sotomayor wanted to know whether this case could be resolved under a disparate treatment theory. She also wanted to know if other laws might serve as a remedy.
7. Justice Kagan wanted to know if the question they granted cert. on was really the right question, and whether they have the authority to decide the case in a different way. Justice Kavanaugh also expressed this concern as well.
8. Justice Jackson wondered whether it was enough to move the case forward that Stanley was discriminated against during the period of her employment.

III

Questions Asked by the Justices to City of Sanford, Florida, Attorney

1. Justice Thomas wanted to hear the City of Sanford’s view on just what was presented to the Court to decide and what was covered by the courts below. Justice Kagan had a similar question and wondered whether there were sufficient facts in the record and in the question presented below and how they were covered, so as to be able to decide the case on a narrower ground than what was presented for cert.
2. Justice Jackson wanted to know if there was any dispute whether Stanley was disabled before she retired.
3. Justice Jackson wanted to know if there was ever a remedy for a person disputing disparate treatment with respect to retirement benefits because they would not be eligible for the retirement benefits while they are working and would no longer be qualified once they stop.
4. Justice Jackson wanted to know why the qualified individual even applied when compensation and benefits were involved when the ADA specifically says it covers discriminatory treatment and compensation and benefits. Also, as Justice Alito also noted, this is not a reasonable accommodation situation.
5. Justice Jackson wanted to know why the ADA could not be handled the same way as civil rights cases are with respect to disparate treatment. The City pushed the argument here that everything revolves around “qualified,” as the critical factor.
6. Justice Sotomayor wondered whether the City’s position meant that a retiree could never proceed under the ADA. She and Justice Jackson also wanted to know whether Stanley was qualified per the ADA at the time she got Parkinson’s.
7. Justice Kagan wanted to confirm that Stanley was a qualified individual when the City adopted its policy and whether that was a critical question with respect to retirement benefits being taken away later in an allegedly discriminatory manner.
8. Justice Alito wanted to know if a person’s would have standing to pursue an ADA claim if they develop a disability while employed and then decide to contest an allegedly discriminatory structure of retirement benefits.
9. Chief Justice Roberts wanted to know if a breach of contract claim was viable.
10. Justice Kavanaugh wanted to know if Medicare might play some role in the analysis of this case and what role that might be. Justice Sotomayor also wondered about that as well and whether it even made sense to have Medicare be a factor in how the case is decided.
11. Justice Jackson wanted to confirm that a person is no longer subject to Title I of the ADA if they are no longer employed by the employer.
12. Justice Kagan wondered whether the City’s position meant that there was no such thing as being able to sue in the time when a person was still working about a retirement benefit that is going to kick in when that person is no longer working.

IV

My Thoughts on the Oral Argument

1. I have learned over the course of doing this blog that predicting decision based on oral arguments at the Supreme Court is a fools errand. That said, it would seem that persons with disabilities would have a right to be cautiously optimistic about this case turning out favorably.
2. I am really surprised that nobody raised the question of whether Title II or Title III would also apply. It will be interesting to see whether this question will be discussed in the actual opinions by one of the Justices.
3. A critical fact in this particular case may be that the policy was in effect while Stanley was still working. Another critical fact is that Stanley was working when she became disabled and worked for a time after that.
4. The Supreme Court really seemed to struggle with the position of the City in the oral arguments. The City’s argument was basically that the retirement benefits having kicked in while she is working but wasn’t eligible for the retirement benefits until she stopped working. Then, once she stopped working she was no longer qualified. That view seemed a bit extreme to many of the Justices.
5. Justice Gorsuch and Justice Barrett did not say anything during the course of the oral argument, so impossible to know what they might be thinking.
6. I do not focus on the Lilly Ledbetter Pay Act in my law or consulting practice. So, it will be interesting to see how the Justices discuss the applicability of that law and whether that law is even applicable. It also won’t be surprising if the decision that comes down talks about the applicability of other laws (again, very curious about whether the other titles of the ADA will come into that discussion).
7. Entirely possible that the decision that comes down will reiterate that when it comes to the ADA, three avenues exist: disparate impact; disparate treatment; and reasonable accommodations.
8. As mentioned on Monday, i.e. the last blog entry before this one, it is pretty clear to me that Titles II or III could apply when it comes to retirement benefits being decided based upon a disability rather than through actuarial means. Accordingly, regardless of how this case comes down, employers would be wise as a matter of preventive law, to focus on the safe harbor and not on disability based decision-making when it comes to the structure of retirement benefits.