Contractor Doctors Can Sue Under 1973 Rehab Act

By Jonathan R. Tung, Esq. on February 03, 2016 | Last updated on March 21, 2019

Further complicating the growing conflict over employees and contractors, the Fifth Circuit recently declared that independent contractors can sue "any program or activity receiving Federal financial assistance" on discrimination suits.

According to this circuit, Section 504 (The Rehabilitation Act of 1973) does not adopt the definition of who is covered under Title I even though it may be influenced by that law.

The Discrimination Suit

In this discrimination suit, Rochelle Flynn, the plaintiff, was a contract doctor who provided medical services with the USAF. During her time at the Air Force base, she was diagnosed with a mild form of Autism Spectrum Disorder. This diagnoses presented a rational explanation for her allegedly erratic behavior in front of patients. Complaints were made about her.

Finally, an officer charged with the duty of overseeing her contract with the base recommended that it was "in the best interest of the government if Dr. Flynn was removed from providing services." She was let go. When she asked to be reinstated with accommodations, the government denied her request.

The Rehabilitation Act

At issue before the district court was whether Flynn could rightly bring a complaint under the Rehab Act of 1973. That court concluded that independent contractors had no standing to bring a claim under the Act. But the circuit eventually reversed this finding.

504(b) vs. Title I

The reasoning went something like this. There is a bit of a parallel between The Rehabilitation Act and federal aid payments made to the "employers" as defined under Title I under the Americans with Disabilities Act. Congress eventually saw to it that Section 504(d) was added to the Rehab Act to incorporate more language of the ADA, but it unfortunately left open the question as to whether or not 504(d) incorporated the Title I expressed prohibition of discrimination suits by independent contractors.

Title I's scope is limited to employers, but Section 504(a) is, by express language, far broader in its scope. The scope of Section 504(a) allows suits "any program or activity receiving Federal financial assistance," -- not just "employers" as classed under Title I.

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