454 CLACKAMAS GASTROENTEROLOGY ASSOCIATES,
P. C. v. WELLS
Ginsburg, J., dissenting
fewer than 15 employees from the Act, was "to spare very small firms from the potentially crushing expense of mastering the intricacies of the antidiscrimination laws, establishing procedures to assure compliance, and defending against suits when efforts at compliance fail." Ante, at 447 (quotation from Papa v. Katy Industries, Inc., 166 F. 3d 937, 940 (CA7 1999)). The inquiry the Court endorses to determine the physician-shareholders' qualification as employees asks whether they "ac[t] independently and participat[e] in managing the organization, or . . . [are] subject to the organization's control." Ante, at 449 (quoting 2 Equal Employment Opportunity Commission, Compliance Manual § 605:0009 (2000)). Under the Court's approach, a firm's coverage by the ADA might sometimes turn on variations in ownership structure unrelated to the magnitude of the company's business or its capacity for complying with federal prescriptions.
This case is illustrative. In 1996, Clackamas had 4 physician-shareholders and at least 14 other employees for 28 full weeks; in 1997, it had 4 physician-shareholders and at least 14 other employees for 37 full weeks. App. 55-62; see 42 U. S. C. § 12111(5) (to be covered by the Act, an employer must have the requisite number of employees "for each working day in each of 20 or more calendar weeks in the current or preceding calendar year"). Beyond question, the corporation would have been covered by the ADA had one of the physician-shareholders sold his stake in the business and become a "mere" employee. Yet such a change in ownership arrangements would not alter the magnitude of Clackamas' operation: In both circumstances, the corporation would have had at least 18 people on site doing the everyday work of the clinic for the requisite number of weeks.
The Equal Employment Opportunity Commission's approach, which the Court endorses, it is true, "excludes from protection those who are most able to control the firm's practices and who, as a consequence, are least vulnerable to the discriminatory treatment prohibited by the Act." Brief for
Page: Index Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 NextLast modified: October 4, 2007