1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-22-1998

Ford v. Schering Plough Corp

Precedential or Non-Precedential:

Docket 96-5674

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Recommended Citation

"Ford v. Schering Plough Corp" (1998). 1998 Decisions. Paper 118.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/118
Filed 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. Ford 
 Robert 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 

 2 
 Shanley & 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 whether 

a disparity between disability benefits for mental and 

physical disabilities violates the Americans with Disabilities 

Act of 1990 (ADA), 42 U.S.C. S 12101 et seq. (1994). The 

plaintiff-appellant, Colleen Ford, sued her employer, 

Schering-Plough Corporation (Schering), and the carrier of 

 3 
Schering's group insurance policy, Metropolitan Life 

Insurance Company (MetLife), alleging that the two-year 

cap applicable to benefits for mental disabilities, but not for 

physical disabilities, violates the ADA. On September 12, 

1996, the District Court for the District of New Jersey 

granted the defendants' motion to dismiss Ford's complaint 

under Federal Rule of Civil Procedure 12(b)(6). Ford 

appealed. We will affirm the order of the district court 

dismissing Ford's complaint even though we differ with the 

district court by finding Ford eligible to file suit 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 became 

disabled by virtue of a mental disorder and was unable to 

continue her employment. While she served as an 

employee, Ford enrolled in the employee welfare benefits 

plan offered by Schering through MetLife. The plan 

provided that benefits for physical disabilities would 

continue until the disabled employee reached age sixty-five 

so long as the physical disability persisted. Regarding 

mental disabilities, however, the plan mandated that 

benefits cease after two years if the disabled employee was 

not hospitalized. Ford found herself in this latter category, 

suffering from a mental disorder yet not hospitalized and 

thus ineligible for a continuation of her benefits past the 

two-year limit. Her benefits expired on Nov. 23, 1994. 

Ford filed a charge of discrimination with the Equal 

Employment Opportunity Commission (EEOC). The EEOC 

issued her a "right-to-sue" letter on January 31, 1996. 

Subsequently, Ford filed a three-count complaint against 

Schering and MetLife alleging discrimination in violation of 

the ADA. The defendants filed motions to dismiss the 

complaint pursuant to Rule 12(b)(6) and, in the alternative, 

for summary judgment. The district court granted the 

defendants' Rule 12(b)(6) motion, dismissing the complaint 

for failure to state a claim. This appeal followed.

 4 
II. 

We have jurisdiction under 28 U.S.C. S 1291 (1994), and 

our review over the district court's order is plenary. When 

considering a Rule 12(b)(6) motion, we accept as true 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). Dismissal 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. Gibson, 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 the 

disparity between mental and physical disability benefits 

violates the ADA and, as a preliminary issue, whether Ford 

is even eligible to sue under the ADA. We will address 

Ford's claims under Titles I and III seriatim. 

A. 

Ford's first claim alleges that the defendants' group 

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 discrimination 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 because of the 

 disability of such individual in regard to job application 

 procedures, the hiring, advancement, or discharge of 

 employees, employee compensation, job training, and 

 other terms, conditions, and privileges of employment. 

 (b) Construction 

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

 "discriminate" includes-- 

 5 
 . . . . 

 (2) participating in a contractual or other 

 arrangement or relationship that has the effect of 

 subjecting a covered entity's qualified applicant or 

 employee with a disability to the discrimination 

 prohibited by this subchapter (such relationship 

 includes a relationship with . . . an organization 

 providing fringe benefits to an employee of the covered 

 entity[)] . . . . 

42 U.S.C. S 12112(a)-(b) (emphasis added). As the plaintiff 

correctly observes, the defendants' group insurance plan is 

a fringe benefit of employment at Schering. Ford claims 

that the defendants violated Title I of the ADA because the 

mental-physical disparity constitutes discrimination against 

her on the basis of her disability. 

i. 

Before addressing the merits of Ford's Title I claim, we 

must first ascertain whether Ford is eligible tofile suit 

under Title I. While the district court held that Ford lacked 

"standing[,]" Dist. Ct. Op. at 7, the question of standing is 

not at issue in this case. Indeed, Ford has been"injured in 

fact" by the denial of her benefits, which is"an injury to 

[herself] that is likely to be redressed by a favorable 

decision." Simon v. Eastern Ky. Welfare Rights Org., 426 

U.S. 26, 38, 96 S. Ct. 1917, 1924 (1976). Furthermore, 

Ford's interest is arguably within the zone of interests 

regulated by the ADA. See id. at 39 n.19, 96 S. Ct. at 1925 

n.19. Instead of ascertaining Ford's standing, we must 

assess Ford's eligibility under the ADA's requirements to file 

suit. 

Title I of the ADA restricts the ability to sue under its 

provisions to a "qualified individual with a disability[,]" 

whose characteristics are defined as follows: 

 The term "qualified individual with a disability" 

 means an individual with a disability who, with or 

 without reasonable accommodation, can perform the 

 essential functions of the employment position that 

 such individual holds or desires. For the purposes of 

 6 
 this subchapter, consideration shall be given 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 interviewing applicants 

 for the job, this description shall be considered 

 evidence of the essential functions of the job. 

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 reasonable 

accommodation by the employer. Ford, however, admits 

that she is currently unable to work even with a reasonable 

accommodation. Indeed, her disabled status is the reason 

for her desire to receive the disability benefits at 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 statement 

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 represented 

to governmental agencies that he was completely disabled. 

In McNemar, an HIV-positive man represented to 

government agencies that he was completely disabled for 

the purpose of receiving disability benefits. At the same 

time, he asserted that he was a "qualified individual with a 

disability[,]" meaning that he could work with or without a 

reasonable accommodation, in his suit against his former 

employer under the ADA for wrongful discharge. As a

result, we concluded that the district court was within its 

discretion in finding that McNemar's representations to 

government agencies estopped him from claiming that he 

was a "qualified individual with a disability" under 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 asserting she is a 

"qualified individual with a disability" for purposes of her 

ADA suit. However, despite its apparent relevance, 

McNemar is distinguishable. In McNemar, the plaintiff's 

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

possibility that, for reasons intrinsic to the ADA, there was 

an ambiguity in the definition of "qualified individual with 

a disability[.]" The essence of McNemar's suit was that he 

could still work despite his disability (meaning that he was 

wrongfully discharged), yet he simultaneously received 

benefits for being unable to work due to his disability. 

McNemar's situation did not unearth an internal 

contradiction in the ADA; instead, the contradiction in 

McNemar's position arose between McNemar's various 

representations, namely his claim of wrongful discharge 

and his assertion to government agencies that he was 

completely disabled. 

In the instant case, Ford is also attempting to qualify 

under Title I's eligibility requirement, but the factual 

predicate of her claim (that she is disabled and deserving of 

disability benefits) matches the representation she made to 

qualify for the benefits she already received. Unlike the 

McNemar plaintiff, Ford illuminates an internal 

contradiction in the ADA itself, namely the disjunction 

between the ADA's definition of "qualified individual with a 

disability" and the rights that the ADA confers. Title 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 Ford and the 

EEOC as amicus argue, restricting eligibility to sue under 

Title I to individuals who can currently work with or without 

a reasonable accommodation prevents disabled former

employees from suing regarding discrimination in disability 

benefits. Once an individual becomes disabled and thus 

eligible for disability benefits, that individual loses the 

ability to sue under a strict reading of Title I's definition of 

"qualified individual with a disability" because that 

individual can no longer work with or without a reasonable 

accommodation. In order for the rights guaranteed by Title 

I to be fully effectuated, the definition of "qualified 

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. 

 8 
This disjunction between the explicit rights created by 

Title I of the ADA and the ostensible eligibility standards for 

filing suit under Title I causes us to view the contents of 

those requirements as ambiguous rather than as having an 

unassailable plain meaning. "The plainness or ambiguity of 

statutory language is determined by reference to the 

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 Drilling 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 "qualified 

individual with a disability[.]" If the putative plaintiff must, 

at the time of the suit, be employable with or without a 

reasonable accommodation, then a disabled former 

employee loses his ability to sue to challenge discriminatory 

disability benefits. Alternatively, the term "qualified 

individual with a disability" may include former employees 

who were once employed with or without reasonable 

accommodations yet who, at the time of suit, are completely 

disabled. 

The Supreme Court's recent decision in Robinson, which 

concerned the scope of Title VII of the Civil Rights 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 benefits. 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. 101-485, 

pt. 3, at 48 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 471. 

Furthermore, the ADA incorporates by reference several 

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 former 

employees are allowed to bring suits against their previous 

 9 
employers under Title VII for post-termination retaliation 

such as negative job references. The Court found that the 

term "employees" as used in S 704(a) of Title VII was 

ambiguous regarding its temporal reach, i.e., whether it 

covered only current employees or encompassed former 

employees as well. See ___ U.S. at ___, 117 S. Ct. at 846- 

48. Resolving this ambiguity, the Court held that the term 

encompassed former employees in order to provide former 

employees with a legal recourse against post-termination 

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 there is no 

temporal qualifier for that definition. Congress could have 

restricted the eligibility for plaintiffs under the ADA to 

current employees or could have explicitly broadened the 

eligibility to include former employees. Since Congress did 

neither but still created rights regarding disability benefits, 

we are left with an ambiguity in the text of the statute 

regarding eligibility to sue under Title I. 

We resolve this ambiguity by interpreting Title I of 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 individuals with 

disabilities . . . [and] to provide clear, strong, consistent, 

enforceable standards addressing [such] discrimination 

. . . ." 42 U.S.C. S 12101(b)(1)-(2) (emphasis added). Our 

decision is also in keeping with the Supreme Court's 

Robinson decision, which found that the temporal reach of 

Title VII encompasses former employees, and our preRobinson 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 tendered 

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 eligible to sue under 

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

Circuit rejected the suit of an individual in a position 

similar to Ford's. Litigating on behalf of the former 

employee, the EEOC argued that the individual was eligible 

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 Seventh 

Circuit rejected this argument by noting that no 

discrimination against the plaintiff occurred during her 

employment, while, in the Title VII retaliation situation, 

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 working 

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 1045. 

However, the Seventh Circuit's brief analysis conflates two 

issues, the first being whether the individual could sue 

regarding fringe benefits while completely disabled, and the 

second being whether the individual's suit had merit and 

was based upon actual discrimination. The Seventh Circuit 

essentially declined to find the individual eligible to sue 

because her suit lacked merit. Therefore, we do notfind the 

Seventh Circuit's reasoning persuasive regarding whether 

Ford is eligible to sue in the instant case as opposed 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 because 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 person was in the 

"employment position" of "disability benefit recipient." Id. at 1043 

(internal quotation marks omitted). According to the Seventh Circuit, the 

EEOC claimed that, "[b]ecause CNA imposes no job-related duties on any 

of the beneficiaries of its long-term disability plan, [the plaintiff] by 

definition can perform the essential functions of her position: there are 

none . . . ." Id. at 1043-44. The Seventh Circuit rejected 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 this argument in the 

instant litigation. 

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

Gonzales v. Garner Food Services, Inc., 89 F.3d 1523 (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 benefits. The 

Eleventh Circuit recognized the possible analogy between 

the Title VII retaliation context and the ADA situation, but 

it refused to adopt this analogy and to grant the plaintiff 

permission to sue. Instead, the Eleventh Circuit argued 

that, "[a]bsent clearly expressed legislative intent to the 

contrary, the plain language of the statute should be 

conclusive." Id. at 1528. The Eleventh Circuit concentrated 

on what it believed to be the plain meaning of the ADA, that 

only currently employable individuals could sue. However, 

it failed to address the possibility that the disparity between 

the rights created by the ADA and the apparent legal 

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 former 

employers regarding their disability benefits. We reach this 

conclusion because the ADA's proscription of 

discrimination in fringe benefits generates the need for 

disabled individuals to have legal recourse against such 

discrimination and exposes the temporal ambiguity in the 

ADA's definition of "qualified individual with a disability[.]" 

We resolve this ambiguity in favor of a broad temporal 

interpretation of "qualified individual with a disability[,]" 

that disabled former employees, no longer able to work with 

or without reasonable accommodations, can sue their

former employers concerning alleged discrimination in their 

package of disability benefits. Our impetus for this 

conclusion also comes from the Supreme Court's Robinson 

decision allowing former employees to sue under Title 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 that 

survives the defendants' Rule 12(b)(6) motion. Ford

 12 
essentially claims that the disparity between benefits for 

mental and physical disabilities violates Title I of 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 from a specific 

disabled employee facing differential treatment due to her 

disability. Every Schering employee had the opportunity to 

join the same plan with the same schedule of coverage, 

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 occurred even 

if the plan offers different coverage for various disabilities. 

The ADA does not require equal coverage for every type of 

disability; such a requirement, if it existed, would 

destabilize the insurance industry in a manner definitely 

not intended by Congress when passing the ADA. 

This analysis is supported by Supreme Court and Third 

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. Lucent 

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 Medicaid 

program's reduction in the number of inpatient hospital 

days for which it would pay. The plaintiffs claimed that the 

reduction would have a disproportionate effect on 

handicapped individuals since they would require longer 

inpatient care than non-handicapped individuals. However, 

the Supreme Court held that the limit on inpatient hospital 

care was "neutral on its face[ ]" and did not "distinguish 

between those whose coverage will be reduced and those 

whose coverage will not on the basis of any test, judgment, 

or trait that the handicapped as a class are less capable 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. 

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

Turnage, 485 U.S. 535, 108 S. Ct. 1372 (1988), dismissed 

a challenge to a federal statute precluding the Veterans 

Administration from granting extensions to a ten-year 

delimiting period for veterans to claim their benefits if the 

veterans' disabilities arose from their own willful

misconduct, defined by regulations as including alcoholism. 

The Supreme Court rejected the argument that the statute 

discriminated against one type of disability, namely 

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 assistance statute 

need not treat every disability equally. In Doe v. Colautti, 

592 F.2d 704 (3d Cir. 1979), we dismissed a challenge to a 

Pennsylvania statute that provided unlimited 

hospitalization for physical illness in a private hospital but 

restricted hospitalization for mental illness in private 

mental hospitals. We rejected the argument that the

differential level of benefits violated the Rehabilitation Act 

by noting that, "[i]n the treatment of their physical 

illnesses, the mentally ill receive the same benefits 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. Cir. 

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 Rehabilitation Act 

based upon the plan's lower level of benefits for mental 

illness as compared to physical illness. 

Aside from Supreme Court and Third Circuit precedent in 

the Rehabilitation Act context, claims under the ADA 

similar to Ford's have been rejected by three courts of 

appeals in published opinions. While we disagree with the 

Seventh Circuit's reasoning in CNA regarding the plaintiff's 

 14 
eligibility to sue, we agree with its discussion regarding the 

merits of the plaintiff's claim. In rejecting the plaintiff's 

challenge to the disparity between benefits for mental and 

physical illnesses, the Seventh Circuit stated: 

 One of those terms, conditions, or privileges of 

 employment may be a pension plan, but there is no 

 claim here that CNA discriminated on the basis of 

 disability in offering its pension plan to anyone. It did 

 not charge higher prices to disabled people, on the 

 theory that they might require more in benefits. Nor 

 did it vary the terms of its plan depending on whether 

 or not the employee was disabled. All employees--the 

 perfectly healthy, the physically disabled, and the 

 mentally disabled--had a plan that promised them 

 long-term benefits from the onset of disability until age 

 65 if their problem was physical, and long-term 

 benefits for two years if the problem was mental or 

 nervous. . . . 

 [The plaintiff] raises a different kind of discrimination 

 claim, more grist for the ERISA mill or the national 

 health care debate than for the ADA. She claims that 

 the plan discriminates against employees who in the 

 future will become disabled due to mental conditions 

 rather than physical conditions; their present dollars 

 (unbeknownst to them) are buying only 24 months of 

 benefits, instead of benefits lasting much longer. 

 However this is dressed up, it is really a claim that 

 benefit plans themselves may not treat mental health 

 conditions less favorably than they treat physical 

 health conditions. Without far stronger language 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 several years. 

 Few, if any, mental health advocates have thought that 

 the result they would like to see has been there 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 (8th Cir. 

1996), the Eighth Circuit rejected a challenge under the 

ADA to an insurance plan that denied coverage for 

infertility. Analogizing the infertility exclusion to differential 

 15 
benefits for mental and physical illnesses, the Eighth 

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 678. Finally, 

the Sixth Circuit in Parker rejected a claim similar to Ford's 

made against the same defendants as in the instant case. 

As the Sixth Circuit held, "Because all the employees at 

Schering-Plough, whether disabled or not, received the 

same access to the long-term disability plan, neither the 

defendants nor the plan discriminated between the disabled 

and the able bodied." 121 F.3d at 1015-16; cf . Brennen v. 

Comptroller of the State of N.Y., 100 F.3d 942, 1996 WL 

19057 (2d Cir. 1996) (unpublished table decision) (benefits 

extended to one category of disabled persons need not be 

extended to all other categories). 

The cases finding no violation of the ADA by a disparity 

in benefits between mental and physical disabilities 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 individual based 

 on the person's diagnosis or disability. For example, 

 while it is permissible for an employer to offer 

 insurance policies that limit coverage for certain 

 procedures or treatments, e.g., only a specified amount 

 per year for mental health coverage, a person who has 

 a mental health condition may not be denied coverage 

 for other conditions such as for a broken leg or for 

 heart surgery because of the existence of the 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 the 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 with disabilities 

 must have equal access to the health insurance 

 coverage that is provided by the employer to all 

 employees. 

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

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

passage evinces that Congress did not believe that the ADA 

mandated parity between mental and physical disability 

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) (codified 

primarily in Titles 18, 26 and 42 of the U.S. Code), which 

would have mandated parity in insurance coverage for 

mental and physical illnesses. Such an amendment would 

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 also CNA, 

96 F.3d at 1044. Furthermore, Congress then passed the 

Mental Health Parity Act of 1996, Pub. L. No. 104-204, 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 alia, that 

a health insurance plan containing no annual or lifetime 

limit for medical benefits cannot have such limits on 

mental health. Such congressional action reveals both that 

the ADA does not contain parity requirements and that no 

parity requirements for mental and physical disability 

benefits have been enacted subsequent to the ADA. 

iii. 

Ford attempts to buttress her challenge to the disparity 

between benefits for mental and physical disabilities by 

pointing to section 501(c) of the ADA, which contains the 

"safe harbor" provision covering the insurance industry. 

This section, codified at 42 U.S.C. S 12201(c), reads as 

follows: 

 (c) Insurance 

 Subchapters I through III of this chapter and title IV 

 of this Act shall not be construed to prohibit or restrict 

 -- 

 (1) an insurer, hospital or medical service 

 company, health maintenance organization, or any 

 agent, or entity that administers benefit plans, or 

 similar organizations from underwriting risks, 

 classifying risks, or administering such risks that 

 are based on or not inconsistent with State law; or 

 17 
 (2) a person or organization covered by this

 chapter from establishing, sponsoring, observing or 

 administering the terms of a bona fide benefit plan 

 that are based on underwriting risks, classifying 

 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, observing or 

 administering the terms of a bona fide benefit plan 

 that is not subject to State laws that regulate 

 insurance. 

 Paragraphs (1), (2), and (3) shall not be used as a 

 subterfuge to evade the purposes of subchapter [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 present 

actuarial data demonstrating that their plan is not a 

"subterfuge[.]" Hence, according to Ford, the district court 

erred in granting the defendants' Rule 12(b)(6) motion 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 statutory 

duty regarding insurance regulation and distorts the role of 

this court. First, Ford's argument that Schering and MetLife 

must justify their insurance plan contradicts the Supreme 

Court's interpretation of a provision similar to section 

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" from 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 ineligible 

 18 
for disability retirement once they reached age sixty. 

Relying on its decision in United Air Lines, Inc. v. McMann, 

434 U.S. 192, 98 S. Ct. 444 (1977), the Supreme Court 

concluded that the term "subterfuge" must be given its 

ordinary meaning of " `a scheme, plan, stratagem, or artifice 

of evasion.' " Betts, 492 U.S. at 167, 109 S. Ct. at 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 had 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 enacted 

section 501(c) of the ADA in 1990, see Pub. L. No. 101-336, 

104 Stat. 369 (1990), while the Supreme Court decided 

Betts in 1989. Congress therefore is presumed to have 

adopted the Supreme Court's interpretation of "subterfuge" 

in the ADEA context when Congress enacted the ADA. 

"[W]here, as here, Congress adopts a new law incorporating 

sections of a prior law, Congress normally can be presumed 

to have had knowledge of the interpretation given to the 

incorporated law, at least insofar as it affects the 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 wellknown meaning at common law or in the law of this 

country, they are presumed to have been used in that 

sense unless the context compels to the contrary."). "Had 

Congress intended to reject the Betts interpretation of 

subterfuge when it enacted the ADA, it could have done so 

expressly by incorporating language for that purpose into 

the bill that Congress voted on and the President signed." 

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 after 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-Ferguson 

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

Act of Congress shall be construed to invalidate, impair, or 

supersede any law enacted by any State for the purpose of 

regulating the business of insurance . . . unless such Act 

specifically relates to the business of insurance . . . ." 15 

U.S.C. S 1012(b) (1994). The ADA does not "specifically 

relate[ ] to the business of insurance[,]" id., and does not 

mention the term "insurance" in its introductory section 

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 requiring 

insurers to justify their coverage plans in court after a mere 

allegation by a plaintiff. This second reason is integrally 

related to the third reason Ford's argument regarding 

section 501(c) fails, namely that requiring insurers to justify 

their coverage plans elevates this court to the position of 

super-actuary. This court is clearly not equipped to become 

the watchdog of the insurance business, and it is unclear 

exactly what actuarial analysis the defendants would have 

to produce to disprove the charge of "subterfuge[.]" See 

Modderno, 82 F.3d at 1062-63 (noting confusion as to 

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 disabilities 

violates Title III of the ADA. Title III reads in relevant part 

as follows: "No individual shall be discriminated against on 

the basis of disability in the full and equal enjoyment 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 operates 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 words 

redundant, see United States v. Alaska, ___ U.S. ___, ___, 

117 S. Ct. 1888, 1918 (1997), Ford and the U.S. Dept. of 

Justice as amicus essentially argue that the phrase

"services, . . . privileges, [and] advantages" covers 

discrimination in realms different than physical access to 

facilities or else these words would be superfluous. Ford 

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

"insurance office[ ]" is a public accommodation under Title 

III. 42 U.S.C. S 12181(7)(F) (listing examples of public 

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 covered by 

Title III. In the instant case, Schering and MetLife offered 

disability benefits to Ford in the context of her employment 

at Schering, meaning that the disability benefits constituted 

part of the terms and conditions of Ford's employment. 

Terms and conditions of employment are covered under 

Title I, not Title III. "Title III is not intended to govern any 

terms or conditions of employment by providers of public 

accommodations or potential places of employment; 

employment practices are governed by title I of this 

legislation." S. Rep. No. 101-116, at 58 (1989); see 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 III. 

See Parker, 121 F.3d at 1015. 

Regarding MetLife, the disability benefits that Ford 

challenges do not qualify as a public accommodation and 

thus do not fall within the rubric of Title III. The plain 

meaning of Title III is that a public accommodation is a 

place, leading to the conclusion that " `[i]t is all of the 

services which the public accommodation offers, not all 

services which the lessor of the public accommodation 

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 broadcast is 

not covered by Title III)). This is in keeping with the host of 

examples of public accommodations provided by the ADA, 

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 public 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 contains not more than five 

 21 
Ford received her disability benefits via her employment at 

Schering, she had no nexus to MetLife's "insurance office" 

and thus was not discriminated against in connection with 

a public accommodation. Furthermore, the "goods, services, 

facilities, privileges, advantages, or accommodations" 

concerning which a disabled person cannot suffer 

discrimination are not free-standing concepts but rather all 

refer to the statutory term "public accommodation" and 

thus to what these places of public accommodation provide. 

Ford cannot point to these terms as providing protection 

from discrimination unrelated to places. 

_________________________________________________________________ 

rooms for rent or hire and that is actually occupied by the proprietor of 

such establishment as the residence of such proprietor; 

(B) a restaurant, bar, or other establishment serving 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, hardware store, shopping 

center, or other sales or rental establishment; 

(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel 

service, shoe repair service, funeral parlor, gas station, office of an 

accountant or lawyer, pharmacy, insurance office, professional office of 

a health care provider, hospital, or other service establishment; 

(G) a terminal, depot, or other station used for specified public 

transportation; 

(H) a museum, library, gallery, or other place of public 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, homeless shelter, food 

bank, adoption agency, or other social service center establishment; and 

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

of exercise or recreation. 

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

 22 
Restricting "public accommodation" to places is in 

keeping with jurisprudence concerning Title II of the Civil 

Rights Act of 1964, 42 U.S.C. S 2000a (1994). Title II 

proscribes racial and religious discrimination in"the goods, 

services, facilities, privileges, advantages, and 

accommodations of any place of public accommodation

. . . ." 42 U.S.C. S 2000a(a). This proscription has 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 unconnected 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 accommodations 

 requirements is to ensure accessibility to the goods 

 offered by a public accommodation, not to alter the 

 nature or mix of goods that the public accommodation 

 has typically provided. In other words, a bookstore, for 

 example, must make its facilities and sales operations 

 accessible to individuals with disabilities, but is not 

 required to stock Brailled or large print books. 

 Similarly, a video store must make its facilities and 

 rental operations accessible, but is not required 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 treat the 

disabled equally in terms of books the store stocks, likewise 

an insurance office must be physically accessible to the 

disabled but need not provide insurance that treats the 

disabled equally with the non-disabled. While the Dept. of 

Justice has issued other documents stating that Title III 

does cover the substance of insurance contracts, see Dept. 

of Justice, Title III Technical Assistance Manual: Covering 

Public Accommodations and Commercial Facilities S III3.11000, at 19 (Nov. 1993) ("Insurance offices are places of 

public accommodation and, as such, may not discriminate 

on the basis of disability in the sale of insurance contracts 

or in the terms or conditions of the insurance contracts 

they offer."), such an interpretation is "manifestly contrary" 

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

binding on this court. Chevron U.S.A., Inc. v. Natural 

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 "public 

accommodation" and 42 U.S.C. S 12182(a) to be clear, we 

have no need to analyze the ADA's legislative history. 

We also note that, by aligning ourselves with the Sixth 

Circuit's Parker decision regarding the definition of "public 

accommodation[,]" we part company with the First Circuit 

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 that Title III 

is not limited to physical structures. The First Circuit 

pointed to the inclusion of "travel service" in the list of 

public accommodations and noted: 

 Many travel services conduct business by telephone or 

 correspondence without requiring their customers to 

 enter an office in order to obtain their services. 

 Likewise, one can easily imagine the existence of other 

 service establishments conducting business by mail 

 and phone without providing facilities for their 

 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 services over 

 the telephone or by mail are not. Congress could 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 1014, the 

First Circuit failed to read the examples of public

accommodations that piqued the First Circuit's interest in 

the context of the other examples of public 

accommodations. The litany of terms, including 

"auditorium," "bakery," "laundromat," "museum," "park," 

"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 doctrine 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 giving of 

 24 
unintended breadth to the Acts of Congress." Jarecki v. 

G.D. Searle & Co., 367 U.S. 303, 307, 81 S. Ct. 1579, 1582 

(1961). Accordingly, we do not find the term "public 

accommodation" or the terms in 42 U.S.C. S 12181(7) to 

refer to non-physical access or even to be ambiguous 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 MetLife 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 Title 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 coverage 

plans after a plaintiff's prima facie allegation. 

 25 
ALITO, 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). However, 

I reach this conclusion based solely on the insurance "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 the ADA 

"shall not be construed to prohibit or restrict" the terms of 

a bona fide insurance plan. 42 U.S.C. S 12201(c). This 

exemption applies so long as it is not "used as a subterfuge 

to evade the purposes of" the ADA. Id. As the majority 

recognizes, the term "subterfuge" must be construed in 

accordance with the Supreme Court's decision in Public 

Employees Retirement Sys. of Ohio v. Betts, 492 U.S. 158 

(1989). See Maj. Op. at 18-19. Betts concerned a "safe 

harbor" provision that exempted fringe benefit plans from 

coverage by the Age Discrimination in Employment Act 

(ADEA). See 29 U.S.C. S 623(f)(2) (1988).1 Like section 

501(c), the ADEA exemption provided that it would not 

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 prior 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 Air Lines, 

Inc. v. McMann, 434 U.S. 192, 203 (1977)). Under the same 

reasoning, the insurance plan challenged by Ford cannot be 

considered a subterfuge to evade the purposes of the ADA 

since the plan was adopted prior to the enactment of the 

ADA.2 See Modderno v. King, 82 F.3d 1059, 1063-1065

_________________________________________________________________ 

1. Following Betts, section 623(f)(2) was amended by 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 effect 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 conclusion that a 

plan adopted prior to the enactment of the ADEA could not be a 

subterfuge to avoid the purposes of that Act. See 434 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 enacted 

prior to the importation of ADA standards into the 

Rehabilitation Act could not be considered a subterfuge 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 framed 

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 benefit plan 

 provision as a subterfuge to evade the purposes of the 

 Act, the employee bears the burden of proving that the 

 discriminatory plan provision actually was intended 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 "subterfuge," 

Ford could not successfully challenge the defendants' 

insurance plan unless she could show that it was intended 

to serve the purpose of discriminating in some noninsurance-benefit aspect of her relationship with the 

defendants. Ford's complaint contains no such allegation 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 conclude that 

distinguishing between people with different disabilities for 

insurance purposes is not discrimination based on 

disability. See Maj. Op. at 12-13. In fact, it would seem that 

making such distinctions does constitute discrimination in 

the most basic sense of the word. See Webster's Third New 

International Dictionary at 648 (defining discrimination 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 due 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) with 42 U.S.C. 

S 1201(c) ("shall not be used as a subterfuge to evade the purposes of" 

the ADA) (emphasis added). However, I do not believe that this change is 

sufficient to avoid the mandate of McMann and Betts. 

 27 
"the making or perceiving of a distinction or difference"). 

However, we need not wrestle with the question of what 

might or might not constitute unlawful insurance 

discrimination under the ADA had Congress not addressed 

the issue; Congress did address the issue and provided an 

explicit answer in section 501(c). 

In light of the ease with which Ford's claims can be 

resolved under section 501(c), I would not reach the more 

difficult issues of: 1) whether a former employee who can 

no longer work can meet Title I's "qualified individual with 

a disability" requirement; and 2) whether Title III's public 

accommodation provision guarantees anything more than 

physical access. These issues have divided the circuits, and 

I would reserve judgment until we are confronted with a 

case in which the unique considerations of insurance plans 

are not at stake. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 28