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. e du/thir dc ir c uit_1998/118Filed May 22, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-5674

COLLEEN V. FORD, Appellant

v.

SCHERING-PLOUGH CORPORATION;
SCHERING CORPORATION;

METROPOLITAN LIFE INSURANCE COMPANY

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 96-cv-01991)

Argued January 28, 1998

BEFORE: MANSMANN, COWEN and ALITO, Circuit Judges

(Filed May 22, 1998)

Maureen S. Binetti, Esq. (Argued) Wilentz, Goldman & Spitzer 90 Woodbridge Center Drive

P.O. Box 10 Woodbridge, NJ 07095

Counsel for Appellant

Colleen V. FordRobert J. Gregory, Esq.

(Argued)

Room 7032 Equal Employment Opportunity

Commission 1801 L Street, N.W. Washington, DC 20507

Counsel for Amicus-Appellant Equal Employment Opportunity

Commission

Corrie L. Fischel, Esq.

McGuiness & Williams 1015 15th Street, N.W.

Suite 1200 Washington, DC 20005

Counsel for Amicus-Appellee Equal Employment Advisory

Council

Patricia A. Dunn, Esq. Jones, Day, Reavis & Pogue 1450 G Street, N.W.

Suite 700 Washington, DC 20005-2088

Counsel for Amicus-Appellee

American Council Life Insurance

Ronald S. Cooper, Esq. Steptoe & Johnson 1330 Connecticut Avenue, N.W. Washington, DC 20036

Counsel for Amicus-Appellee

Association of Private Pension

And Welfare Plans

Blue Cross and Blue Shield

Association

Thomas F. Campion, Esq. (Argued)

Lee E. Miller

2Shanley & Fisher

131 Madison Avenue Morristown, NJ 07962-1979

Counsel for Appellee Schering Plough Corporation

Allen I. Fagin

Aaron J. Schindel Ronald S. Rauchberg Proskauer, Rose, Goetz &

Mendelsohn 1585 Broadway New York, NY 10036

Allan M. Marcus, Esq. (Argued) Metropolitan Life Insurance Company Law Department

One Madison Avenue New York, NY 10010-3690

Sondra M. Hirsch, Esq. Metropolitan Life Insurance Company

One Meadowlands Plaza

1st Floor East Rutherford, NJ 07073

Counsel for Appellee Metropolitan Life Insurance Company

OPINION OF THE COURT

COWEN, Circuit Judge.

This appeal presents the purely legal question of w hether a disparity between disability benefits for mental and physical disabilities violates the Americans with D isabilities Act of 1990 (ADA), 42 U.S.C. S 12101 et seq. (1994 ). The plaintiff-appellant, Colleen Ford, sued her employe r, Schering-Plough Corporation (Schering), and the car rier of

3Schering's group insurance policy, Metropolitan Lif e

Insurance Company (MetLife), alleging that the two- year cap applicable to benefits for mental disabilities, but not for physical disabilities, violates the ADA. On Septemb er 12, 1996, the District Court for the District of New Je rsey granted the defendants' motion to dismiss Ford's co mplaint under Federal Rule of Civil Procedure 12(b)(6). For d appealed. We will affirm the order of the district court dismissing Ford's complaint even though we differ w ith the district court by finding Ford eligible to file sui t under Title

I of the ADA.

I.

The facts concerning the plaintiff's employment and her disability are not in dispute. Ford was an employee of Schering from 1975 until May of 1992, when she beca me disabled by virtue of a mental disorder and was una ble to continue her employment. While she served as an employee, Ford enrolled in the employee welfare ben efits plan offered by Schering through MetLife. The plan provided that benefits for physical disabilities wo uld continue until the disabled employee reached age si xty-five so long as the physical disability persisted. Regar ding mental disabilities, however, the plan mandated tha t benefits cease after two years if the disabled empl oyee was not hospitalized. Ford found herself in this latter category, suffering from a mental disorder yet not hospitaliz ed and thus ineligible for a continuation of her benefits past the two-year limit. Her benefits expired on Nov. 23, 19 94.

Ford filed a charge of discrimination with the Equa l Employment Opportunity Commission (EEOC). The EEOC issued her a "right-to-sue" letter on January 31, 1 996. Subsequently, Ford filed a three-count complaint ag ainst Schering and MetLife alleging discrimination in vio lation of

the ADA. The defendants filed motions to dismiss th e complaint pursuant to Rule 12(b)(6) and, in the alt ernative, for summary judgment. The district court granted th e defendants' Rule 12(b)(6) motion, dismissing the co mplaint for failure to state a claim. This appeal followed.

4II.

We have jurisdiction under 28 U.S.C. S 1291 (1994), and our review over the district court's order is plena ry. When considering a Rule 12(b)(6) motion, we accept as tr ue all the allegations set forth in the complaint, and we must draw all reasonable inferences in the plaintiff's favor. See Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991). Dism issal of a plaintiff's claim under Rule 12(b)(6) occurs only if the plaintiff "can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibso n, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102 (1957).

III.

Because the facts of this case are not in dispute, our analysis focuses on the legal question of whether t he disparity between mental and physical disability be nefits violates the ADA and, as a preliminary issue, wheth er Ford is even eligible to sue under the ADA. We will addr ess Ford's claims under Titles I and III seriatim.

A.

Ford's first claim alleges that the defendants' gro up insurance plan violates Title I of the ADA because of the disparity in benefits between mental and physical disabilities. Title I of the ADA proscribes discrim ination in the terms and conditions of employment and mandates in relevant part:

(a) General rule

No covered entity shall discriminate against a qualified individual with a disability becau se of the disability of such individual in regard to j ob application procedures, the hiring, advancement, or disc harge of employees, employee compensation, job traini ng, and other terms, conditions, and privileges of e mployment.

(b) Construction

As used in subsection (a) of this section, t he term

"discriminate" includes--

5. . . .

(2) participating in a contractual or other arrangement or relationship that has the eff ect of subjecting a covered entity's qualified appl icant or employee with a disability to the discrimina tion prohibited by this subchapter (such relation ship includes a relationship with . . . an organi zation providing fringe benefits to an employee of the covered entity[)] . . . .

42 U.S.C. S 12112(a)-(b) (emphasis added). As the p laintiff correctly observes, the defendants' group insurance plan is a fringe benefit of employment at Schering. Ford cl aims

that the defendants violated Title I of the ADA bec ause the mental-physical disparity constitutes discriminatio n against her on the basis of her disability.

i.

Before addressing the merits of Ford's Title I clai m, we must first ascertain whether Ford is eligible tofil e suit

under Title I. While the district court held that F ord lacked "standing[,]" Dist. Ct. Op. at 7, the question of s tanding is not at issue in this case. Indeed, Ford has been"in jured in fact" by the denial of her benefits, which is"an in jury to [herself] that is likely to be redressed by a favor able decision." Simon v. Eastern Ky. Welfare Rights Org. , 426 U.S. 26, 38, 96 S. Ct. 1917, 1924 (1976). Furthermo re, Ford's interest is arguably within the zone of inte rests regulated by the ADA. See id. at 39 n.19, 96 S. Ct. at 1925 n.19. Instead of ascertaining Ford's standing, we m ust assess Ford's eligibility under the ADA's requireme nts to file

suit.

Title I of the ADA restricts the ability to sue und er its provisions to a "qualified individual with a disabi lity[,]"

whose characteristics are defined as follows:

The term "qualified individual with a disabi lity" means an individual with a disability who, w ith or without reasonable accommodation, can perfor m the essential functions of the employment positi on that such individual holds or desires. For the pu rposes of

6this subchapter, consideration shall be give n to the

employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewi ng applicants for the job, this description shall be consi dered evidence of the essential functions of the j ob.

42 U.S.C. S 12111(8). Thus, an individual eligible to sue

under Title I of the ADA must be disabled but still able to perform his or her job duties with or without a rea sonable accommodation by the employer. Ford, however, admit s that she is currently unable to work even with a re asonable accommodation. Indeed, her disabled status is the r eason for her desire to receive the disability benefits a t issue here.

The defendants-appellees argue that Ford is clearly ineligible to sue under Title I of the ADA because she is currently disabled, and they point to our recent st atement that "a person unable to work is not intended to be , and is not, covered by the ADA." McNemar v. Disney Store, Inc., 91 F.3d 610, 618 (3d Cir. 1996), cert. denied, ___ U.S . ___, 117 S. Ct. 958 (1997). McNemar focused on whether an individual is judicially estopped from claiming to be a "qualified individual with a disability" when he re presented to governmental agencies that he was completely dis abled. In McNemar, an HIV-positive man represented to government agencies that he was completely disabled for the purpose of receiving disability benefits. At th e same time, he asserted that he was a "qualified individu al with a disability[,]" meaning that he could work with or w ithout a reasonable accommodation, in his suit against his f ormer employer under the ADA for wrongful discharge. As a result, we concluded that the district court was wi thin its discretion in finding that McNemar's representation s to government agencies estopped him from claiming that he was a "qualified individual with a disability" unde r Title I.

See id. at 617-18.

At first glance, McNemar seems to cover the instant case since Ford has asserted she is completely disabled for purposes of disability benefits yet is now assertin g she is a "qualified individual with a disability" for purpos es of her ADA suit. However, despite its apparent relevance, McNemar is distinguishable. In McNemar, the plainti ff's

7situation vis-a-vis the ADA did not give rise to th e

possibility that, for reasons intrinsic to the ADA, there was an ambiguity in the definition of "qualified indivi dual with a disability[.]" The essence of McNemar's suit was that he could still work despite his disability (meaning th at he was wrongfully discharged), yet he simultaneously recei ved benefits for being unable to work due to his disabi lity.

McNemar's situation did not unearth an internal contradiction in the ADA; instead, the contradictio n in McNemar's position arose between McNemar's various representations, namely his claim of wrongful disch arge and his assertion to government agencies that he wa s completely disabled.

In the instant case, Ford is also attempting to qua lify under Title I's eligibility requirement, but the fa ctual predicate of her claim (that she is disabled and de serving of disability benefits) matches the representation she made to qualify for the benefits she already received. Unli ke the McNemar plaintiff, Ford illuminates an internal contradiction in the ADA itself, namely the disjunc tion between the ADA's definition of "qualified individu al with a disability" and the rights that the ADA confers. Ti tle I of the ADA prohibits discrimination by employers regarding the "terms, conditions, and privileges" of employment, 42 U.S.C. S 12112(a), including "fringe benefits" such as disability benefits. Id. S 12112(b)(2). Yet, as For d and the EEOC as amicus argue, restricting eligibility to su e under Title I to individuals who can currently work with or without a reasonable accommodation prevents disabled former employees from suing regarding discrimination in di sability

benefits. Once an individual becomes disabled and t hus eligible for disability benefits, that individual l oses the ability to sue under a strict reading of Title I's definition of "qualified individual with a disability" because th at individual can no longer work with or without a rea sonable accommodation. In order for the rights guaranteed b y Title I to be fully effectuated, the definition of "quali fied individual with a disability" would have to permit suits under Title I by more than just individuals who are currently able to work with or without reasonable

accommodations.

8This disjunction between the explicit rights create d by

Title I of the ADA and the ostensible eligibility s tandards for filing suit under Title I causes us to view the con tents of those requirements as ambiguous rather than as havi ng an unassailable plain meaning. "The plainness or ambig uity of statutory language is determined by reference to th e language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Robinson v. Shell Oil Co., ___ U.S. ___, ___, 117 S . Ct. 843, 846 (1997) (citing Estate of Cowart v. Nicklos Dril ling Co., 505 U.S. 469, 477, 112 S. Ct. 2589, 2594-95 (1992), and McCarthy v. Bronson, 500 U.S. 136, 139, 111 S. Ct. 1737, 1740 (1991)). The locus of the ambiguity is whether the ADA contains a temporal qualifier of the term "qual ified individual with a disability[.]" If the putative pl aintiff must, at the time of the suit, be employable with or with out a reasonable accommodation, then a disabled former employee loses his ability to sue to challenge disc riminatory disability benefits. Alternatively, the term "quali fied individual with a disability" may include former em ployees who were once employed with or without reasonable accommodations yet who, at the time of suit, are co mpletely

disabled.

The Supreme Court's recent decision in Robinson, wh ich concerned the scope of Title VII of the Civil Right s Act of 1964, 42 U.S.C. S 2000e et seq. (1994), contributes to this ambiguity by lending support for interpreting Title I of the ADA to permit suits by disabled individuals against their former employers concerning their disability benefi ts. Cases interpreting Title VII are relevant to our analysis of the ADA because the ADA is essentially a sibling statute of Title VII. Indeed, the ADA's accompanying House report states that the purpose of the ADA is "to provide civil rights protections for persons with disabilities that are parallel to those available to minorities and women." H.R. Rep. No. 1 01-485, pt. 3, at 48 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 471. Furthermore, the ADA incorporates by reference seve ral terms defined in Title VII. See 42 U.S.C. S 12111(7 ) (incorporating Title VII's definitions of "person", "labor organization", etc.).

In Robinson, the Supreme Court analyzed whether for mer employees are allowed to bring suits against their previous

9employers under Title VII for post-termination reta liation

such as negative job references. The Court found th at the term "employees" as used in S 704(a) of Title VII w as ambiguous regarding its temporal reach, i.e., wheth er it covered only current employees or encompassed forme r employees as well. See ___ U.S. at ___, 117 S. Ct. at 846- 48. Resolving this ambiguity, the Court held that t he term encompassed former employees in order to provide fo rmer employees with a legal recourse against post-termin ation retaliation. See id. at ___, 117 S. Ct. at 848-49; see also Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 200 (3d Cir. 1994) (former employee may file a retaliation claim against a former employer under Title VII).

As with the term "employees" in Title VII, the ADA contains an ambiguity concerning the definition of "qualified individual with a disability" because th ere is no temporal qualifier for that definition. Congress co uld have restricted the eligibility for plaintiffs under the ADA to current employees or could have explicitly broadene d the eligibility to include former employees. Since Cong ress did neither but still created rights regarding disabili ty benefits, we are left with an ambiguity in the text of the st atute regarding eligibility to sue under Title I.

We resolve this ambiguity by interpreting Title I o f the ADA to allow disabled former employees to sue their former employers regarding their disability benefits so as to effectuate the full panoply of rights guaranteed by the ADA. This is in keeping with the ADA's rationale, namely "to provide a clear and comprehensive national mandate for the elimination of discrimination against individua ls with disabilities . . . [and] to provide clear, strong, consistent, enforceable standards addressing [such] discriminat ion . . . ." 42 U.S.C. S 12101(b)(1)-(2) (emphasis adde d). Our decision is also in keeping with the Supreme Court' s Robinson decision, which found that the temporal re ach of Title VII encompasses former employees, and our pre Robinson decision to that effect in Charlton, 25 F. 3d at 200.

By adopting this interpretation, we part ways with the Seventh and Eleventh Circuits, both of which tender ed decisions prior to Robinson.1 In EEOC v. CNA Ins.

___________________________________________________ ______________

1. The Sixth Circuit in Parker v. Metropolitan Life Ins. Co., 99 F.3d 181 (6th Cir. 1996), analyzed whether a plaintiff was e ligible to sue under

10Companies, 96 F.3d 1039 (7th Cir. 1996), the Sevent h

Circuit rejected the suit of an individual in a pos ition similar to Ford's. Litigating on behalf of the form er employee, the EEOC argued that the individual was e ligible to sue under Title I by arguing that an analogy may be drawn to decisions allowing former employees to sue employers for retaliation under Title VII. The Seve nth Circuit rejected this argument by noting that no discrimination against the plaintiff occurred durin g her employment, while, in the Title VII retaliation sit uation, actual harm occurred by virtue of the retaliation. As the Seventh Circuit wrote, "[N]othing happened that discriminated against her during the time she was w orking at CNA. The only thing that occurred was CNA's 1985 decision to reduce the long-term benefits available to all of its employees for mental health problems." Id. at 1 045. However, the Seventh Circuit's brief analysis confl ates two issues, the first being whether the individual coul d sue regarding fringe benefits while completely disabled , and the second being whether the individual's suit had meri t and was based upon actual discrimination. The Seventh C ircuit essentially declined to find the individual eligibl e to sue because her suit lacked merit. Therefore, we do not find the Seventh Circuit's reasoning persuasive regarding wh ether Ford is eligible to sue in the instant case as oppo sed to

whether her suit has merit.2

___________________________________________________ ______________

Title I. However, that decision was vacated by the granting of the plaintiff's petition for rehearing en banc. See 6th Cir. R. 14(a). The en

banc decision did not address the Title I issue bec ause it was not raised by the plaintiff's petition for rehearing en banc. See Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1009 n.2 (6th Cir. 1997) (en banc), cert. denied, ___ U.S. ___, 118 S. Ct. 871 ( 1998).

2. The EEOC also argued in CNA that the disabled pe rson was in the "employment position" of "disability benefit recipi ent." Id. at 1043 (internal quotation marks omitted). According to th e Seventh Circuit, the EEOC claimed that, "[b]ecause CNA imposes no job-re lated duties on any of the beneficiaries of its long-term disability pl an, [the plaintiff] by definition can perform the essential functions of h er position: there are

none . . . ." Id. at 1043-44. The Seventh Circuit r ejected that argument because, in its words, "[a]n `employment position' is a job[,]" id. at 1044, meaning that receiving disability benefits did not qualify as an employment position. However, Ford does not offer t his argument in the instant litigation.

11We also disagree with the Eleventh Circuit's ruling in

Gonzales v. Garner Food Services, Inc., 89 F.3d 152 3 (11th Cir. 1996). In Gonzales, as in the instant case, a disabled former employee sued his former employer under the ADA regarding alleged discrimination in disability bene fits. The Eleventh Circuit recognized the possible analogy be tween

the Title VII retaliation context and the ADA situa tion, but it refused to adopt this analogy and to grant the p laintiff permission to sue. Instead, the Eleventh Circuit ar gued that, "[a]bsent clearly expressed legislative inten t to the contrary, the plain language of the statute should be

conclusive." Id. at 1528. The Eleventh Circuit conc entrated on what it believed to be the plain meaning of the ADA, that only currently employable individuals could sue. Ho wever, it failed to address the possibility that the dispa rity between the rights created by the ADA and the apparent lega l remedy fashioned by the ADA creates an ambiguity in the eligibility requirements for obtaining a remedy.

In sum, we respectfully disagree with the district court and sister courts of appeals. We find that Title I of the ADA does permit disabled individuals to sue their forme r employers regarding their disability benefits. We r each this conclusion because the ADA's proscription of discrimination in fringe benefits generates the nee d for disabled individuals to have legal recourse against such discrimination and exposes the temporal ambiguity i n the ADA's definition of "qualified individual with a di sability[.]" We resolve this ambiguity in favor of a broad tempo ral interpretation of "qualified individual with a disa bility[,]" that disabled former employees, no longer able to w ork with or without reasonable accommodations, can sue their former employers concerning alleged discrimination in their package of disability benefits. Our impetus for thi s conclusion also comes from the Supreme Court's Robi nson decision allowing former employees to sue under Tit le VII of the Civil Rights Act of 1964.

ii.

Having established Ford's eligibility to sue under Title I,

we must now ascertain whether she states a claim th at survives the defendants' Rule 12(b)(6) motion. Ford

12essentially claims that the disparity between benef its for

mental and physical disabilities violates Title I o f the ADA. However, Ford's argument does not support a finding of

discrimination under Title I.

While the defendants' insurance plan differentiated between types of disabilities, this is a far cry fr om a specific disabled employee facing differential treatment due to her disability. Every Schering employee had the opportu nity to join the same plan with the same schedule of covera ge, meaning that every Schering employee received equal treatment. So long as every employee is offered the same plan regardless of that employee's contemporary or future disability status, then no discrimination has occur red even if the plan offers different coverage for various d isabilities. The ADA does not require equal coverage for every t ype of disability; such a requirement, if it existed, woul d destabilize the insurance industry in a manner defi nitely not intended by Congress when passing the ADA.

This analysis is supported by Supreme Court and Thi rd Circuit precedent concerning the Rehabilitation Act of 1973, 29 U.S.C. S 794 (1994), to which we may look for guidance in interpreting the ADA. See Gaul v. Lucen t Technologies, Inc., 134 F.3d 576, 580 (3d Cir. 1998 ). In Alexander v. Choate, 469 U.S. 287, 105 S. Ct. 712 ( 1985), plaintiffs sued in response to the Tennessee Medica id program's reduction in the number of inpatient hosp ital days for which it would pay. The plaintiffs claimed that the reduction would have a disproportionate effect on handicapped individuals since they would require lo nger inpatient care than non-handicapped individuals. Ho wever, the Supreme Court held that the limit on inpatient hospital care was "neutral on its face[ ]" and did not "dist inguish between those whose coverage will be reduced and th ose whose coverage will not on the basis of any test, j udgment, or trait that the handicapped as a class are less c apable of meeting or less likely of having." Id. at 302, 105 S. Ct. at 720-21. According to the Supreme Court, handicapped

citizens did not suffer from discrimination because both handicapped and non-handicapped individuals were "subject to the same durational limitation." Id. at 302, 105

S. Ct. at 721.

13Building on Alexander, the Supreme Court in Traynor v.

Turnage, 485 U.S. 535, 108 S. Ct. 1372 (1988), dism issed a challenge to a federal statute precluding the Vet erans Administration from granting extensions to a ten-ye ar delimiting period for veterans to claim their benef its if the

veterans' disabilities arose from their own willful misconduct, defined by regulations as including alc oholism. The Supreme Court rejected the argument that the st atute discriminated against one type of disability, namel y alcoholism. "There is nothing in the Rehabilitation Act that requires that any benefit extended to one category of handicapped persons also be extended to all other categories of handicapped persons." Id. at 549, 108 S. Ct.

at 1382.

We have likewise held, in the context of the Rehabilitation Act, that a state's medical assistan ce statute need not treat every disability equally. In Doe v. Colautti, 592 F.2d 704 (3d Cir. 1979), we dismissed a challen ge to a Pennsylvania statute that provided unlimited hospitalization for physical illness in a private h ospital but restricted hospitalization for mental illness in pr ivate mental hospitals. We rejected the argument that the

differential level of benefits violated the Rehabil itation Act by noting that, "[i]n the treatment of their physic al illnesses, the mentally ill receive the same benefi ts as everyone else. A mental patient with heart disease, for instance, is as entitled to benefits for treatment of the heart disease as would be a person not mentally ill." Id. at 708. Our holding in Doe is supported by the D.C. Circuit 's decision in Modderno v. King, 82 F.3d 1059 (D.C. Ci r. 1996), cert. denied, ___ U.S. ___, 117 S. Ct. 772 ( 1997), in which the D.C. Circuit rejected a challenge brought by a former spouse of a foreign service officer against the Foreign Service Benefit Plan under the Rehabilitati on Act based upon the plan's lower level of benefits for m ental illness as compared to physical illness.

Aside from Supreme Court and Third Circuit preceden t in the Rehabilitation Act context, claims under the AD A similar to Ford's have been rejected by three court s of appeals in published opinions. While we disagree wi th the Seventh Circuit's reasoning in CNA regarding the pl aintiff's

14eligibility to sue, we agree with its discussion re garding the

merits of the plaintiff's claim. In rejecting the p laintiff's challenge to the disparity between benefits for men tal and physical illnesses, the Seventh Circuit stated:

One of those terms, conditions, or privilege s of employment may be a pension plan, but there is no

claim here that CNA discriminated on the bas is of disability in offering its pension plan to a nyone. It did not charge higher prices to disabled people, on the theory that they might require more in benef its. Nor did it vary the terms of its plan depending on whether or not the employee was disabled. All employ ees--the perfectly healthy, the physically disabled, and the mentally disabled--had a plan that promised them long-term benefits from the onset of disabil ity until age 65 if their problem was physical, and long-t erm benefits for two years if the problem was me ntal or

nervous. . . .

[The plaintiff] raises a different kind of d iscrimination claim, more grist for the ERISA mill or the national

health care debate than for the ADA. She cla ims that the plan discriminates against employees who in the

future will become disabled due to mental co nditions rather than physical conditions; their prese nt dollars (unbeknownst to them) are buying only 24 mon ths of benefits, instead of benefits lasting much l onger. However this is dressed up, it is really a c laim that benefit plans themselves may not treat menta l health conditions less favorably than they treat ph ysical health conditions. Without far stronger lang uage in the ADA supporting this result, we are loath to read into it a rule that has been the subject of vigorous , sometimes contentious, national debate for the last se veral years. Few, if any, mental health advocates have th ought that the result they would like to see has been t here all along in the ADA.

CNA, 96 F.3d at 1044 (citations omitted). Likewise, in Krauel v. Iowa Methodist Med. Ctr., 95 F.3d 674 (8t h Cir. 1996), the Eighth Circuit rejected a challenge unde r the ADA to an insurance plan that denied coverage for infertility. Analogizing the infertility exclusion to differential

15benefits for mental and physical illnesses, the Eig hth

Circuit stated, "Insurance distinctions that apply equally to all insured employees, that is, to individuals with disabilities and to those who are not disabled, do not discriminate on the basis of disability." Id. at 67 8. Finally, the Sixth Circuit in Parker rejected a claim simila r to Ford's made against the same defendants as in the instant case. As the Sixth Circuit held, "Because all the employe es at Schering-Plough, whether disabled or not, received the same access to the long-term disability plan, neith er the defendants nor the plan discriminated between the d isabled and the able bodied." 121 F.3d at 1015-16; cf . Bre nnen v. Comptroller of the State of N.Y., 100 F.3d 942, 199 6 WL 19057 (2d Cir. 1996) (unpublished table decision) ( benefits extended to one category of disabled persons need n ot be extended to all other categories).

The cases finding no violation of the ADA by a disp arity in benefits between mental and physical disabilitie s are supported by the ADA's legislative history. As the Senate Labor and Human Resources Committee report states:

In addition, employers may not deny health insurance coverage completely to an individu al based on the person's diagnosis or disability. For example, while it is permissible for an employer to o ffer insurance policies that limit coverage for c ertain procedures or treatments, e.g., only a speci fied amount per year for mental health coverage, a perso n who has a mental health condition may not be denied coverage for other conditions such as for a broken le g or for heart surgery because of the existence of th e mental health condition. A limitation may be placed on reimbursements for a procedure or the types of drugs or procedures covered[,] e.g., a limit on th e number of x-rays or non-coverage of experimental drugs or procedures; but, that limitation must apply to persons with or without disabilities. All people wit h disabilities must have equal access to the health insuran ce coverage that is provided by the employer to all employees.

S. Rep. No. 101-116, at 29 (1989).

16In addition, legislative history subsequent to the ADA's

passage evinces that Congress did not believe that the ADA mandated parity between mental and physical disabil ity benefits. In 1996, the Senate defeated an amendment to the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936 (1996) (c odified primarily in Titles 18, 26 and 42 of the U.S. Code) , which would have mandated parity in insurance coverage fo r mental and physical illnesses. Such an amendment wo uld have been unnecessary altogether if the ADA already required such parity. See 142 Cong. Rec. S9477-02 ( daily ed. Aug. 2, 1996) (statement of Sen. Heflin); see a lso CNA, 96 F.3d at 1044. Furthermore, Congress then passed the Mental Health Parity Act of 1996, Pub. L. No. 104-2 04, Title VII, 110 Stat. 2944 (1996) (codified at 29 U.S.C.S 1185a and 42 U.S.C. S 300gg-5), which mandates, inter ali a, that a health insurance plan containing no annual or lif etime

limit for medical benefits cannot have such limits on mental health. Such congressional action reveals bo th that the ADA does not contain parity requirements and th at no parity requirements for mental and physical disabil ity benefits have been enacted subsequent to the ADA.

iii.

Ford attempts to buttress her challenge to the disp arity between benefits for mental and physical disabiliti es by pointing to section 501(c) of the ADA, which contai ns the "safe harbor" provision covering the insurance indu stry. This section, codified at 42 U.S.C. S 12201(c), rea ds as

follows:

(c) Insurance

Subchapters I through III of this chapter an d title IV of this Act shall not be construed to prohib it or restrict

--

(1) an insurer, hospital or medical service company, health maintenance organization, or any agent, or entity that administers benefit pl ans, or similar organizations from underwriting risk s, classifying risks, or administering such ris ks that

are based on or not inconsistent with State law; or

17(2) a person or organization covered by this

chapter from establishing, sponsoring, obser ving or administering the terms of a bona fide benef it plan that are based on underwriting risks, classi fying risks, or administering such risks that are based on or not inconsistent with State law; or

(3) a person or organization covered by this chapter from establishing, sponsoring, obser ving or administering the terms of a bona fide benef it plan that is not subject to State laws that regul ate

insurance.

Paragraphs (1), (2), and (3) shall not be us ed as a subterfuge to evade the purposes of subchapt er [sic] I and III of this chapter.

42 U.S.C. S 12201(c). Ford essentially claims that, once she presents a prima facie case alleging discrimination in disability benefits, Schering and MetLife must pres ent actuarial data demonstrating that their plan is not a "subterfuge[.]" Hence, according to Ford, the distr ict court erred in granting the defendants' Rule 12(b)(6) mot ion since the defendants had not offered data justifying the actuarial basis for the disparity in benefits.

Ford's argument must fail, however, since it runs contrary to Supreme Court precedent, ignores our st atutory duty regarding insurance regulation and distorts th e role of this court. First, Ford's argument that Schering an d MetLife must justify their insurance plan contradicts the S upreme Court's interpretation of a provision similar to se ction 501(c) in the context of the Age Discrimination in Employment Act (ADEA), Pub. L. No. 90-202, 81 Stat. 602 (1967) (codified at 29 U.S.C. S 621 et seq. (1994) ). Prior to Congress's elimination of the term "subterfuge" fro m the ADEA in 1990, see Older Workers Benefit Protection Act of 1990, Pub. L. No. 101-433, 104 Stat. 978, the ADEA granted an exemption from the ADEA's prohibition of age discrimination to an employee benefit plan that was not "a subterfuge[.]" 29 U.S.C. S 623(f) (1988). In Public Employees Retirement Sys. of Ohio v. Betts, 492 U.S. 158, 109 S. Ct. 2854 (1989), the Supreme Court rejected a challenge to an insurance plan that rendered covered employees inel igible

18for disability retirement once they reached age six ty.

Relying on its decision in United Air Lines, Inc. v . McMann, 434 U.S. 192, 98 S. Ct. 444 (1977), the Supreme Cou rt concluded that the term "subterfuge" must be given its ordinary meaning of " `a scheme, plan, stratagem, o r artifice of evasion.' " Betts, 492 U.S. at 167, 109 S. Ct. a t 2861 (quoting McMann, 434 U.S. at 203, 98 S. Ct. at 450) . In addition, the Supreme Court found that requiring an insurance company to justify its coverage scheme ha d no basis in the statutory language. See id. at 170-71, 109 S. Ct. at 2863; see also McMann, 434 U.S. at 203, 98 S . Ct.

at 450.

The Supreme Court's definition and analysis of the ADEA's use of the term "subterfuge" are applicable to the ADA's use of the term "subterfuge[.]" Congress enac ted section 501(c) of the ADA in 1990, see Pub. L. No. 101-336, 104 Stat. 369 (1990), while the Supreme Court decid ed Betts in 1989. Congress therefore is presumed to ha ve adopted the Supreme Court's interpretation of "subt erfuge" in the ADEA context when Congress enacted the ADA. "[W]here, as here, Congress adopts a new law incorp orating sections of a prior law, Congress normally can be p resumed to have had knowledge of the interpretation given t o the incorporated law, at least insofar as it affects th e new statute." Lorillard v. Pons, 434 U.S. 575, 581, 98 S. Ct. 866, 870 (1978); see Standard Oil Co. of N.J. v. United States, 221 U.S. 1, 59, 31 S. Ct. 502, 515 (1911) ("[W]here words are employed in a statute which had at the time a w ellknown meaning at common law or in the law of this country, they are presumed to have been used in tha t sense unless the context compels to the contrary.") . "Had Congress intended to reject the Betts interpretatio n of subterfuge when it enacted the ADA, it could have d one so expressly by incorporating language for that purpos e into the bill that Congress voted on and the President s igned." Krauel, 95 F.3d at 679; accord Modderno, 82 F.3d at 1064. Accordingly, as the Supreme Court held in the ADEA context, the term "subterfuge" does not require an insurance company to justify its policy coverage af ter a plaintiff's mere prima facie allegation.

The second reason that Ford's argument must fail is that it ignores our statutory duty under the McCarran-Fe rguson

19Act regarding insurance cases. Pursuant to that Act , "No

Act of Congress shall be construed to invalidate, i mpair, or supersede any law enacted by any State for the purp ose of regulating the business of insurance . . . unless s uch Act specifically relates to the business of insurance . . . ." 15 U.S.C. S 1012(b) (1994). The ADA does not "specific ally relate[ ] to the business of insurance[,]" id., and does not mention the term "insurance" in its introductory se ction entitled "Findings and purpose[.]" See 42 U.S.C. S 12101. Accordingly, we will not construe section 501(c) to require a seismic shift in the insurance business, namely r equiring insurers to justify their coverage plans in court a fter a mere allegation by a plaintiff. This second reason is in tegrally related to the third reason Ford's argument regardi ng section 501(c) fails, namely that requiring insurer s to justify their coverage plans elevates this court to the pos ition of super-actuary. This court is clearly not equipped t o become the watchdog of the insurance business, and it is u nclear exactly what actuarial analysis the defendants woul d have to produce to disprove the charge of "subterfuge[.] " See Modderno, 82 F.3d at 1062-63 (noting confusion as t o exactly what actuarial data would be sufficient).

B.

Ford's second claim against Schering and MetLife is that the disparity in benefits for mental and physical d isabilities

violates Title III of the ADA. Title III reads in r elevant part

as follows: "No individual shall be discriminated a gainst on the basis of disability in the full and equal enjoy ment of the goods, services, facilities, privileges, advantages , or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or oper ates a place of public accommodation." 42 U.S.C. S 12182(a ). Relying on the principle that courts should avoid interpreting statutes in a manner rendering some wo rds redundant, see United States v. Alaska, ___ U.S. __

_, ___, 117 S. Ct. 1888, 1918 (1997), Ford and the U.S. Dep t. of Justice as amicus essentially argue that the phrase "services, . . . privileges, [and] advantages" cove rs discrimination in realms different than physical ac cess to facilities or else these words would be superfluous . Ford

20can also cite to the ADA itself for the proposition that an

"insurance office[ ]" is a public accommodation und er Title III. 42 U.S.C. S 12181(7)(F) (listing examples of p ublic accommodations including "insurance office[]").

The fact that an insurance office is a public accommodation, however, does not mean that the insurance policies offered at that location are cov ered by Title III. In the instant case, Schering and MetLif e offered disability benefits to Ford in the context of her e mployment at Schering, meaning that the disability benefits c onstituted part of the terms and conditions of Ford's employme nt. Terms and conditions of employment are covered unde r Title I, not Title III. "Title III is not intended to govern any terms or conditions of employment by providers of p ublic accommodations or potential places of employment; employment practices are governed by title I of thi s legislation." S. Rep. No. 101-116, at 58 (1989); se e H.R. Rep. No. 101-485, pt. 2, at 99 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 382. Therefore, Ford cannot state a claim against her employer, Schering, pursuant to Title I II. See Parker, 121 F.3d at 1015.

Regarding MetLife, the disability benefits that For d challenges do not qualify as a public accommodation and

thus do not fall within the rubric of Title III. Th e plain meaning of Title III is that a public accommodation is a place, leading to the conclusion that " `[i]t is al l of the services which the public accommodation offers, not all services which the lessor of the public accommodati on offers[,] which fall within the scope of Title III. ' " Id. at 1011 (quoting Stoutenborough v. National Football League , Inc., 59 F.3d 580, 583 (6th Cir. 1995) (a television broa dcast is not covered by Title III)). This is in keeping with the host of examples of public accommodations provided by the A DA, all of which refer to places. See 42 U.S.C. S 12181 (7).3 Since

___________________________________________________ ______________

3. Section 12181(7) reads as follows:

The following private entities are considered publi c accommodations for purposes of this subchapter, if the operations of such entities affect

commerce--

(A) an inn, hotel, motel, or other place of lodging , except for an establishment located within a building that contai ns not more than five

21Ford received her disability benefits via her emplo yment at

Schering, she had no nexus to MetLife's "insurance office" and thus was not discriminated against in connectio n with a public accommodation. Furthermore, the "goods, se rvices, facilities, privileges, advantages, or accommodatio ns" concerning which a disabled person cannot suffer discrimination are not free-standing concepts but r ather all refer to the statutory term "public accommodation" and thus to what these places of public accommodation p rovide. Ford cannot point to these terms as providing prote ction from discrimination unrelated to places.

___________________________________________________ ______________

rooms for rent or hire and that is actually occupie d by the proprietor of such establishment as the residence of such proprie tor;

(B) a restaurant, bar, or other establishment servi ng food or drink;

(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;

(D) an auditorium, convention center, lecture hall, or other place of public gathering;

(E) a bakery, grocery store, clothing store, hardwa re store, shopping center, or other sales or rental establishment;

(F) a laundromat, dry-cleaner, bank, barber shop, b eauty shop, travel service, shoe repair service, funeral parlor, gas s tation, office of an accountant or lawyer, pharmacy, insurance office, p rofessional office of a health care provider, hospital, or other service establishment;

(G) a terminal, depot, or other station used for sp ecified public transportation;

(H) a museum, library, gallery, or other place of p ublic display or collection;

(I) a park, zoo, amusement park, or other place of recreation;

(J) a nursery, elementary, secondary, undergraduate , or postgraduate private school, or other place of education;

(K) a day care center, senior citizen center, homel ess shelter, food bank, adoption agency, or other social service cent er establishment; and

(L) a gymnasium, health spa, bowling alley, golf co urse, or other place

of exercise or recreation.

42 U.S.C. S 12181(7).

22Restricting "public accommodation" to places is in

keeping with jurisprudence concerning Title II of t he Civil Rights Act of 1964, 42 U.S.C. S 2000a (1994). Title II proscribes racial and religious discrimination in"t he goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation . . . ." 42 U.S.C. S 2000a(a). This proscription ha s been limited to places rather than including membership in an organization, see Welsh v. Boy Scouts of Am., 993 F .2d 1267, 1269-75 (7th Cir. 1993), and rather than encompassing an organization's operations unconnect ed to any physical facility. See Clegg v. Cult Awareness Network, 18 F.3d 752, 755-56 (9th Cir. 1994).

Confining "public accommodation" to places is also in keeping with the Dept. of Justice's regulations to this effect:

The purpose of the ADA's public accommodatio ns requirements is to ensure accessibility to t he goods offered by a public accommodation, not to al ter the nature or mix of goods that the public accom modation has typically provided. In other words, a bo okstore, for example, must make its facilities and sales operations accessible to individuals with disabilities, but is not required to stock Brailled or large print bo oks. Similarly, a video store must make its facil ities and rental operations accessible, but is not req uired to stock closed-captioned video tapes.

28 C.F.R. pt. 36, app. B, at 640 (1997). Just as a bookstore

must be accessible to the disabled but need not tre at the disabled equally in terms of books the store stocks , likewise an insurance office must be physically accessible t o the disabled but need not provide insurance that treats the disabled equally with the non-disabled. While the D ept. of Justice has issued other documents stating that Tit le III does cover the substance of insurance contracts, se e Dept. of Justice, Title III Technical Assistance Manual: Covering

Public Accommodations and Commercial Facilities S I II3.11000, at 19 (Nov. 1993) ("Insurance offices are places of public accommodation and, as such, may not discrimi nate on the basis of disability in the sale of insurance contracts

or in the terms or conditions of the insurance cont racts they offer."), such an interpretation is "manifestl y contrary"

23to the plain meaning of Title III and, accordingly, is not

binding on this court. Chevron U.S.A., Inc. v. Natu ral Resources Defense Council, 467 U.S. 837, 844, 104 S . Ct. 2778, 2782 (1984); see Parker, 121 F.3d at 1012 n.5

. Furthermore, since we find the plain meaning of "pu blic accommodation" and 42 U.S.C. S 12182(a) to be clear , we have no need to analyze the ADA's legislative histo ry.

We also note that, by aligning ourselves with the S ixth Circuit's Parker decision regarding the definition of "public accommodation[,]" we part company with the First Ci rcuit in this regard. In Carparts Distribution Ctr., Inc. v. Automotive Wholesaler's Ass'n of New England, Inc., 37 F.3d 12 (1st Cir. 1994), the First Circuit held tha t Title III is not limited to physical structures. The First Ci rcuit pointed to the inclusion of "travel service" in the list of public accommodations and noted:

Many travel services conduct business by tel ephone or correspondence without requiring their custo mers to

enter an office in order to obtain their ser vices. Likewise, one can easily imagine the existen ce of other service establishments conducting business b y mail and phone without providing facilities for t heir

customers to enter in order to utilize their services. It would be irrational to conclude that persons who enter an office to purchase services are protected by the ADA, but persons who purchase the same servi ces over the telephone or by mail are not. Congress c ould not

have intended such an absurd result.

Id. at 19 (citing 42 U.S.C. S 12181(7)(F)). However , as the Sixth Circuit pointed out in Parker, 121 F.3d at 10 14, the First Circuit failed to read the examples of public accommodations that piqued the First Circuit's inte rest in the context of the other examples of public accommodations. The litany of terms, including "auditorium," "bakery," "laundromat," "museum," "pa rk," "nursery," "food bank," and "gymnasium[ ]" refer to places with resources utilized by physical access. 42 U.S. C. S 12181(7)(D)-(F), (H)-(L). Pursuant to the doctrin e of noscitur a sociis, the terms that the First Circuit finds ambiguous should be interpreted by reference to the accompanying words of the statute "to avoid the giv ing of

24unintended breadth to the Acts of Congress." Jareck i v.

G.D. Searle & Co., 367 U.S. 303, 307, 81 S. Ct. 157 9, 1582 (1961). Accordingly, we do not find the term "publi c accommodation" or the terms in 42 U.S.C. S 12181(7) to refer to non-physical access or even to be ambiguou s as to their meaning.

In sum, Ford fails to state a claim under Title III of the ADA since the provision of disability benefits by M etLife to Schering's employees does not qualify as a public

accommodation.

IV.

For the above reasons, we will affirm the September 12, 1996, order of the district court dismissing Ford's complaint for failure to state a claim. Unlike the district court, we find that Ford is eligible to sue under T itle I. However, Ford fails to state a claim under Titles I or III and errs in asserting that the "safe harbor" provision of Title V requires insurance companies to justify their cover age plans after a plaintiff's prima facie allegation.

25ALITO, Circuit Judge, concurring in the judgment:

I agree with the majority that Ford fails to state a claim under the Americans with Disabilities Act (ADA). Ho wever, I reach this conclusion based solely on the insuran ce "safe harbor" provision located in section 501(c) of the ADA. See 42 U.S.C. S 12201(c).

Section 501(c) provides that Titles I and III of th e ADA "shall not be construed to prohibit or restrict" th e terms of a bona fide insurance plan. 42 U.S.C. S 12201(c). T his exemption applies so long as it is not "used as a s ubterfuge to evade the purposes of" the ADA. Id. As the major ity recognizes, the term "subterfuge" must be construed in accordance with the Supreme Court's decision in Pub lic Employees Retirement Sys. of Ohio v. Betts, 492 U.S . 158 (1989). See Maj. Op. at 18-19. Betts concerned a "s afe harbor" provision that exempted fringe benefit plan s from coverage by the Age Discrimination in Employment Ac t (ADEA). See 29 U.S.C. S 623(f)(2) (1988).1 Like sec tion 501(c), the ADEA exemption provided that it would n ot protect a plan that was "a subterfuge to evade the purposes of" the Act. Id. In interpreting this language, the Court concluded that an employee benefit plan adopted pri or to

the enactment of the ADEA could not be considered a subterfuge to evade the purposes of the ADEA. Betts , 492 U.S. at 166-69 (reaffirming the holding of United A ir Lines, Inc. v. McMann, 434 U.S. 192, 203 (1977)). Under th e same reasoning, the insurance plan challenged by Ford ca nnot be considered a subterfuge to evade the purposes of th e ADA since the plan was adopted prior to the enactment o f the ADA.2 See Modderno v. King, 82 F.3d 1059, 1063-1065

___________________________________________________ ______________

1. Following Betts, section 623(f)(2) was amended b y the Older Workers Benefit Protection Act of 1990, Pub. L. No. 101-433 , S 103(1), 104 Stat.

978.

2. The disputed portions of the plan have been in e ffect since at least 1985. App. at 69, 87. The ADA was enacted in 1990. See 42 U.S.C.

S 12101.

Three justices in McMann rejected the majority's co nclusion that a plan adopted prior to the enactment of the ADEA cou ld not be a subterfuge to avoid the purposes of that Act. See 4 34 U.S. at 204-05 (White, J., concurring); id. at 219 n.13 (Marshall, J., joined by Brennan,

26(D.C. Cir. 1996) (holding that an insurance plan en acted

prior to the importation of ADA standards into the

Rehabilitation Act could not be considered a subter fuge to evade those standards). Accordingly, the defendants ' plan is insulated from attack by section 501(c).

I further note that Ford's complaint as currently f ramed fails to allege that the defendants ever developed a"specific intent" to evade the purposes of the ADA. See Betts , 492 U.S. at 171. In Betts, the Court wrote:

[W]hen an employee seeks to challenge a bene fit plan provision as a subterfuge to evade the purpo ses of the Act, the employee bears the burden of provin g that the discriminatory plan provision actually was i ntended to serve the purpose of discriminating in some non-fringe- benefit aspect of the employment relation.

Betts, 492 U.S. at 181. Under this reading of "subt erfuge," Ford could not successfully challenge the defendant s' insurance plan unless she could show that it was in tendedto serve the purpose of discriminating in some noninsurance-benefit aspect of her relationship with t he defendants. Ford's complaint contains no such alleg ation of

intent.

Given the effect of section 501(c) on Ford's claims , I do not think that it is necessary for the court to con clude that distinguishing between people with different disabi lities for insurance purposes is not discrimination based on disability. See Maj. Op. at 12-13. In fact, it woul d seem that making such distinctions does constitute discrimina tion in

the most basic sense of the word. See Webster's Thi rd New International Dictionary at 648 (defining discrimin ation as

___________________________________________________ ______________

J., dissenting). According to these justices, a pre -Act plan could become a subterfuge if it was maintained after the passage of the ADEA in order to evade the purposes of that Act. One could argue that this position is stronger under the ADA's "safe harbor" provision du e to difference in the statutory language. Compare 29 U.S.C. S 623(f) ("is not a subterfuge to evade the purposes of" the ADEA) (emphasis added) w ith 42 U.S.C. S 1201(c) ("shall not be used as a subterfuge to ev ade the purposes of" the ADA) (emphasis added). However, I do not believ e that this change is

sufficient to avoid the mandate of McMann and Betts

.

27"the making or perceiving of a distinction or diffe rence").

However, we need not wrestle with the question of w hat might or might not constitute unlawful insurance discrimination under the ADA had Congress not addre ssed the issue; Congress did address the issue and provi ded an explicit answer in section 501(c).

In light of the ease with which Ford's claims can b e resolved under section 501(c), I would not reach th e more difficult issues of: 1) whether a former employee w ho can no longer work can meet Title I's "qualified indivi dual with a disability" requirement; and 2) whether Title III 's public accommodation provision guarantees anything more th an physical access. These issues have divided the circ uits, and I would reserve judgment until we are confronted wi th a case in which the unique considerations of insuranc e plans

are not at stake.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

28