No IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ROCHELLE FLYNN,

No. 15-50314 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ROCHELLE FLYNN, v. Plaintiff - Appellant, DISTINCTIVE HOME CARE, INCORPORATED, doing business as Distinctive Healthcare Staffing, Incorporated; SPECTRUM HEALTHCARE RESOURCES, INCORPORATED, Defendants - Appellees. Appeal from Order of March 5, 2015 issued by the Honorable Robert L. Pitman, United States District Court, Western District of Texas, San Antonio Division, in Case No. 5:13-cv-0936-RP BRIEF OF AMICI CURIAE AARP AND DISABILITY RIGHTS TEXAS SUPPORTING PLAINTIFF-APPELLANT, ROCHELLE FLYNN BRIAN EAST DARA S. SMITH* DISABILITY RIGHTS TEXAS DANIEL B. KOHRMAN 2222 W. Braker Ln. AARP FOUNDATION LITIGATION Austin, Texas 78758 601 E Street, NW Tel. (512) 454-4816 Washington, DC 20049 Fax (512) 454-3999 Tel. (202) 434-6280 beast@disabilityrightstx.org Fax (202) 434-6424 dsmith@aarp.org dkohrman@aarp.org Attorneys for Amici Curiae *Counsel of Record

ROCHELLE FLYNN v. DISTINCTIVE HOME CARE, INC., et al. No. 15-50314 CERTIFICATE OF INTERESTED PERSONS CORPORATE DISCLOSURE STATEMENT OF AARP Pursuant to FRAP 26.1 and Fifth Circuit Rule 28.2.1, the undersigned counsel of record verifies that those persons or entities listed below have or may have an interest in the outcome of this case: 1. AARP Amicus Curiae 2. Disability Rights Texas Amicus Curiae 3. Distinctive Home Care, Inc., d/b/a Distinctive Healthcare Staffing, Inc. Appellee 4. East, Brian counsel for Amicus Curiae Disability Rights Texas 5. Flynn, Rochelle Appellant 6. Garber, Katherine T. counsel for Appellee 7. Kimbell, James Michael counsel for Appellee 8. Kohrman, Daniel Counsel for Amicus Curiae AARP 9. McQueen, Michael David counsel for Appellee 10. Pitman, The Honorable Robert L. Judge, United States District Court 11. Pittard, Robert Chris counsel for Appellant 12. Smith, Dara counsel for Amicus Curiae AARP C-1

13. Spectrum Healthcare Resources, Inc. Appellee The Internal Revenue Service has determined that AARP is organized and operated exclusively for the promotion of social welfare pursuant to Section 501(c)(4) (1993) of the Internal Revenue Code and is exempt from income tax. AARP is also organized and operated as a non-profit corporation pursuant to Title 29 of Chapter 6 of the District of Columbia Code 1951. Other legal entities related to AARP include AARP Foundation, AARP Services, Inc., Legal Counsel for the Elderly, and AARP Insurance Plan, also known as the AARP Health Trust. AARP and Disability Rights Texas have no parent corporations, nor have they issued shares or securities. July 15, 2015 Respectfully Submitted, /s/dara S. Smith Dara S. Smith Attorney for Amici Curiae C-2

TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS CORPORATE DISCLOSURE STATEMENT OF AARP... C1-C2 TABLE OF AUTHORITIES... ii STATEMENT OF INTEREST OF AMICUS CURIAE AARP... 1 STATEMENT OF INTEREST OF AMICUS CURIAE DISABILITY RIGHTS TEXAS... 2 INTRODUCTION AND SUMMARY OF THE ARGUMENT... 2 ARGUMENT... 5 I. The Rehabilitation Act s Text Forecloses the Conclusion that Section 504 Does Not Cover Independent Contractors... 5 A. Section 504 Expressly Covers All Qualified Individuals with Disabilities Who Participate in or Benefit from Covered Federally Funded Programs or Activities... 5 B. Section 504 Does Not Incorporate Title I in its Entirety... 8 C. Even If Independent Contractors Discrimination Claims are not Employment Discrimination Claims to which ADA Standards Apply, Contractors are Nonetheless Covered Individuals Participating in Federally Funded Programs... 13 II. Congress Intended the Rehabilitation Act to Have Comprehensive Coverage, and Invoking the ADA Was Not Intended to Limit That Coverage... 15 CONCLUSION... 18 CERTIFICATION OF COMPLIANCE... 19 CERTIFICATE OF SERVICE AND FILING... 20 i

CASES TABLE OF AUTHORITIES Consolidated Rail v. Darrone, 465 U.S. 624 (1984)... passim Fleming v. Yuma Reg l Med. Ctr., 587 F.3d 938 (9th Cir. 2009)... passim Haybarger v. Lawrence Cty. Adult Prob. & Parole, 551 F.3d 193 (3d Cir. 2008)... 6, 15 Johnson v. N.Y. Hosp., 897 F. Supp. 83 (S.D.N.Y. 1995)... 9 Schrader v. Ray, 296 F.3d 968 (10th Cir. 2002)... passim Sharer v. Oregon, 581 F.3d 1176 (9th Cir. 2009)... 6, 15 Soledad v. U.S. Department of Treasury, 304 F.3d 500 (5th Cir. 2002)... 12 Wojewski v. Rapid City Reg l Hosp., 450 F.3d 338 (8th Cir. 2006)... 13 Zimmerman v. Oregon, 170 F.3d 1169 (9th Cir. 1999)... 15 STATUTES, FEDERAL RULES Americans with Disabilities Act ( ADA ) 42 U.S.C. 12111(5)(A)... 10 42 U.S.C. 12101-213 (2012)... 1 ii

Developmental Disabilities Assistance and Bill of Rights Act of 2000 42 U.S.C. 15041 et seq.... 2 Protection and Advocacy for Mentally Ill Individuals Act of 1986 42 U.S.C. 10801 et seq.... 2 Rehabilitation Act of 1973, as amended, 29 U.S.C. 701 et seq. (2012)... 1 29 U.S.C. 794(a)... passim 29 U.S.C. 794a(a)(2)(1982)... 7 29 U.S.C. 794(b)... 6, 7, 11 29 U.S.C. 794(b)(1)... 4, 14 29 U.S.C. 794(b)(1)(A)... 15 29 U.S.C. 794(d)... 3, 6, 7, 9 29 U.S.C. 794e... 2 Title VI of the Civil Rights Acts of 1964 42 U.S.C. 2000d-3 (2012)... 7 LEGISLATIVE HISTORY 138 Cong. Rec. S 16608 (1992)... 15 138 Cong. Rec. S 16611... 3, 17 S. Rep. No. 93-318 (1973), as reprinted in U.S.C.C.A.N. 2076... 3 S. Rep. No. 102-357 (1992), U.S.C.C.A.N. 3712... 3 S. Rep. No. 102-357 (1992), reprinted in 1992 U.S.C.C.A.N. 2712... 16 iii

STATEMENT OF INTEREST OF AMICUS CURIAE AARP 1 AARP is a nonpartisan, nonprofit organization with a membership that helps people turn their dreams into real possibilities, strengthens communities and fights for issues that matter most to families, such as employment, healthcare, income security, retirement planning, affordable utilities and protection from financial abuse. AARP is dedicated to addressing the needs and interests of older workers, and strives through legal and legislative advocacy to preserve the means to enforce their rights. Approximately one-third of AARP s members are employed full-time or part-time, and still others are seeking employment. A disproportionate number of older workers have one or more actual disabilities, a record thereof, and/or are perceived as having a disability, and are therefore protected by the Americans with Disabilities Act ( ADA ), 42 U.S.C. 12101-213 (2012), and, for those working in the federal sector or for entities receiving federal financial assistance, the Rehabilitation Act of 1973, 29 U.S.C. 701 et seq. (2012). AARP is committed to these statutes vigorous enforcement, including ensuring that the Rehabilitation Act continues to cover all individuals who 1 Pursuant to F.R.A.P. 29(5), Amici Curiae state that no counsel for any party authored this brief in whole or in part and that no party or entity other than amici curiae, their members, or counsel made any monetary contribution to the preparation or submission of this brief. 1

participate in federally funded programs. AARP believes the district court erred in holding that the Rehabilitation Act does not cover independent contractors, thereby excluding an entire category of workers from the statute s invaluable protections. STATEMENT OF INTEREST OF AMICUS CURIAE DISABILITY RIGHTS TEXAS Disability Rights Texas is the agency designated by the Governor of Texas to protect and advocate for the rights of individuals with disabilities in the State of Texas, pursuant to the Developmental Disabilities Assistance and Bill of Rights Act of 2000, 42 U.S.C. 15041 et seq., the Protection and Advocacy for Mentally Ill Individuals Act of 1986, 42 U.S.C. 10801 et seq., and the Protection and Advocacy of Individuals Rights program, 29 U.S.C. 794e. As the P&A agency, Disability Rights Texas is interested in the enforcement of civil rights laws, including 504 of the Rehabilitation Act of 1973, that ensure the economic self-sufficiency of individuals with disabilities, and that protect the rights of individuals to be free of discrimination based on disability. INTRODUCTION AND SUMMARY OF THE ARGUMENT In 1973, Congress enacted the Rehabilitation Act to provide a comprehensive solution to the lack of action in areas related to rehabilitation which limit a handicapped individual s ability to function in society, e.g., employment discrimination, lack of housing and transportation services and architectural and 2

transportation barriers. S. Rep. No. 93-318 (1973), as reprinted in U.S.C.C.A.N. 2076, 2078. Congress recognized that a productive and financially independent life is of primary importance and sought to ensure that no individual would be excluded from the program merely because his handicap appeared to be too severe. Id. at 2079. In the following years, Congress consistently amended the Act to maintain and extend the breadth of its reach, including the 1992 amendments that were calculated to forge a comprehensive Act to ensure that any individual who wants to work can do so, regardless of his or her disabilities. S. Rep. No. 102-357, at 6 (1992), U.S.C.C.A.N. 3712, 3717. At the same time, Congress added to 504 a reference to the standards of Title I of the ADA to assure that there will be consistent, equitable treatment for both individuals with disabilities under the two laws. 138 Cong. Rec. S16611 (statement of Senator Harkin). Accordingly, the statute provides that no otherwise qualified individual with a disability may be subject to discrimination in federally funded programs, and it also explains that the standards of Title I of the ADA apply in employment discrimination cases. 29 U.S.C. 794(a), (d). The district court misconstrued this language in concluding that because Title I of the ADA applies only to employer-employee relationships, 504 s reference to 3

the ADA s standards somehow excludes independent contractors from the Act s coverage. This interpretation ignores the statute s express coverage of all qualified individual[s] and all of the operations of covered entities, neither of which is limited or qualified in any way. 29 U.S.C. 794(a), (b)(1). The better view is that the statute s invocation of Title I s standards addresses only the substantive standards for determining what conduct violates the Rehabilitation Act, not the definition of who is covered under the Rehabilitation Act. Schrader v. Ray, 296 F.3d 968, 972 (10th Cir. 2002). Indeed, not only did Congress choose to invoke the standards of Title I rather than using the language of incorporation, but in addition, total incorporation would create needless conflict and duplication between the various provisions of the two statutory schemes, which are meaningfully different in purpose and scope. See id.; Fleming v. Yuma Reg l Med. Ctr., 587 F.3d 938, 943-45 (9th Cir. 2009). Applying only Title I s standards for what conduct violates the Act affords meaning to the statutory language and achieves Congress dual goals of comprehensive coverage and substantive consistency between the two statutes. In any event, even if the Act does incorporate Title I in its entirety, that certainly does not suggest that independent contractors are excluded from 504 s coverage. Rather, even if independent contractors discrimination suits are not employment discrimination claims, the contractors are nonetheless covered 4

individuals participating in the operations of federally funded programs, and they therefore fall within the statute s broad ambit. Indeed, the legislative history of the Rehabilitation Act confirms that Congress sought to preserve the statute s broad coverage, and it contains no suggestion that Congress intended its reference to Title I of the ADA to restrict the statute s reach. Accordingly, this Court should not adopt a narrowing construction that lacks any support in either the statute s text or its history. ARGUMENT I. The Rehabilitation Act s Text Forecloses the Conclusion that Section 504 Does Not Cover Independent Contractors. A. Section 504 Expressly Covers All Qualified Individuals with Disabilities Who Participate in or Benefit from Covered Federally Funded Programs or Activities. Section 504 of the Rehabilitation Act, entitled Nondiscrimination under Federal grants and programs, provides, in pertinent part: No otherwise qualified individual with a disability in the United States... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.... 29 U.S.C. 794(a) (emphasis added). The Act defines any program or activity as all of the operations of state instrumentalities, postsecondary 5

institutions, or an entire corporation, partnership, or other private organization, or an entire sole proprietorship.... 29 U.S.C. 794(b). This broad language denotes broad coverage. 2 See, e.g., Sharer v. Oregon, 581 F.3d 1176, 1178 (9th Cir. 2009) (citing Haybarger v. Lawrence Cty. Adult Prob. & Parole, 551 F.3d 193, 200 (3d Cir. 2008) ( To honor Congress intent, we interpret[] program or activity broadly. )). Section 504 s language is not only expansive; it is unqualified. It does not suggest that the Act s coverage provisions are subject to any exceptions at all specifically, it does not expressly single out and exclude contractors or contracting operations. Nor does it reference any coverage limitations found elsewhere in the statute. Most relevantly, the coverage provisions include no references to 794(d), the subsection that mentions the standards applied under Title I of the ADA, that would suggest that 794(d) limits the statute s reach. Nowhere does the text state, 2 The district court and the parties frame this issue as one of standing, but it is properly treated as a question of statutory coverage. It does not appear to be disputed that Flynn suffered an injury-in-fact when Defendants terminated her contract, nor can it reasonably be disputed that any independent contractor alleging that his or her contract was terminated for discriminatory reasons has experienced such an injury. Rather, the question is whether the injury is a cognizable claim under 504. This distinction would be crucial in a case where a defendant failed to raise the issue before the trial court because standing is a jurisdictional question that can be raised for the first time on appeal (or sua sponte), whereas statutory coverage is not. However, because Defendants raised the issue before the district court in this case, it is properly before this court despite the district court s error in characterizing it as a question of standing. 6

for example, that no otherwise qualified individual with a disability may be subject to discrimination except as provided in 794(d), or that all of the operations of a covered entity must follow this proscription other than those excluded by 794(d), as might be expected if the reference to the ADA were intended to limit the statute s reach. 29 U.S.C. 794(a), (b), (d). In the absence of any express statement to the contrary, this Court should not read the statute s reference to the ADA s standards as limiting 504 s intentionally broad coverage. The Supreme Court rejected a similar attempt to narrow the Rehabilitation Act s scope in Consolidated Rail v. Darrone, 465 U.S. 624, 631-35 (1984) (hereinafter Conrail) (superseded in part by statute with regard to another issue). Conrail dealt with 505(a)(2) of the Act, the enforcement provision that made available the remedies, procedures, and rights set forth in Title VI of the Civil Rights Acts of 1964 to victims of discrimination in violation of 504. 465 U.S. at 626 (quoting 29 U.S.C. 794a(a)(2) (1982)). A subsection of Title VI limits Title VI s applicability to programs that receive federal financial assistance of which a primary objective is to provide employment. 42 U.S.C. 2000d-3 (2012). Conrail argued, much like the defendants in this case, that by applying Title VI s enforcement provisions, 504 of the Rehabilitation Act expressly incorporated Title VI s primary objective coverage limitation as well. Conrail, 465 U.S. at 632-7

33. The Court rejected this argument, focusing both on the Act s broad remedial purpose in employment discrimination cases and on the statutory language. Id. The Court reasoned that 504 of the Rehabilitation Act expressly covers any program or activity receiving Federal financial assistance, emphasizing that although the Act makes available the enforcement mechanisms of Title VI, it does not explicitly reference the primary purpose limitation or contain analogous limiting language. Id. at 632. Likewise, here, 504(d) s invocation of the ADA s standards cannot reasonably be read to narrow 504 s coverage in the absence of any explicit reference to the ADA s coverage limitations or any analogous limitations in 504 s text. See Fleming v. Yuma Reg l Med. Servs., 587 F.3d 938, 943 (9th Cir. 2009) ( [W]e can find no language in 504(d) that explicitly adopts those sections of Title I that would restrict the scope of the Rehabilitation Act. ). B. Section 504 Does Not Incorporate Title I in its Entirety. As the Ninth and Tenth Circuits have held, the more soundly reasoned view is that rather than incorporating Title I of the ADA in its entirety (including its coverage limitations), 504(d) addresses only the substantive standards for determining what conduct violates the Rehabilitation Act, not the definition of who is covered under the Rehabilitation Act. Schrader v. Ray, 296 F.3d 968, 972 (10th Cir. 2002); Fleming, 587 F.3d at 943. This construction is rooted in the statutory 8

language, which is contained in a section entitled standards used in determining violation of section and states that [t]he standards used to determine whether this section has been violated in a complaint alleging employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act.... 29 U.S.C. 794(d). As the Ninth Circuit explained, this reference to Title I s standards is not the language of incorporation, and Congress choice of words is significant. Fleming, 587 F.3d at 942. The Tenth Circuit similarly reasoned that 504(d) s language states that the ADA s standards are to be used only to determine whether [the Rehabilitation Act] has been violated... What the [statute] does not state is that the standards of the ADA are to be used to determine whether an employer is even subject to the Rehabilitation Act in the first place. Schrader, 296 F.3d at 972 (quoting Johnson v. N.Y. Hosp., 897 F. Supp. 83, 86 (S.D.N.Y. 1995)). Moreover, construing 504(d) to apply only Title I s substantive standards makes more sense in context than wholesale incorporation, given the substantial duplication and inconsistency between the two statutory schemes. See Fleming, 587 F.3d at 945. One particularly salient example of the unnecessary conflict that total incorporation would create is the situation addressed by the Tenth Circuit in Schrader v. Ray, 296 F.3d 968 (2002): whether, by virtue of 504(d), the ADA s 9

definition of a covered employer as a person engaged in an industry affecting commerce who has 15 or more employees limited 504 s scope. Id. at 971 (citing 42 U.S.C. 12111(5)(A)). The court concluded that 504(d) did not impose this limitation on the Rehabilitation Act, in part because the Act specifically refers to regulations describing covered small providers as those employing fewer than fifteen people, and because the Act s definition of a program or activity covered under certain circumstances includes a sole proprietorship. Id. at 973. The court found no reason to believe that 504(d) s reference to the ADA s standards should cause the ADA s coverage provisions to supplant the Act s own definitional provisions. Id. Instead, the court explained that the Rehabilitation Act and the ADA encompass different scopes (while using the same standards for liability) because the two statutes strike different balances between prohibiting discrimination and protecting small entities. Id. at 974. The ADA, the court reasoned, has blanket involuntary coverage, so small employers need more protection, whereas entities covered by the Rehabilitation Act have chosen to receive financial benefits in exchange for prohibitions on their ability to discriminate. Id. (citing Conrail, 465 U.S. at 633 n.13 ( Congress apparently determined that it would require contractors and grantees to bear the costs of providing employment for the handicapped as a 10

quid pro quo for the receipt of federal funds. )). This key distinction between the two statutes militates against replacing the Rehabilitation Act s provisions regarding which entities are covered with the ADA s employer definition in employment discrimination cases. See id. The issue in the case at bar presents another instance of the unnecessary conflict that would be created by wholesale incorporation of Title I i.e., the conflict between the ADA s coverage of employer-employee relationships and the Rehabilitation Act s coverage of all qualified individuals with disabilities experiencing discrimination in any federally funded program. Construing 504(d) to apply only Title I s standards for assessing whether a violation of the Act has occurred preserves the balance struck by Congress in 504, requiring entities that accept federal funds to refrain from discrimination in all of the[ir] operations, not only in employment. See 29 U.S.C. 794(b). Indeed, the Ninth Circuit alluded to this reasoning in Fleming v. Yuma Regional Medical Center, 587 F.3d 938 (2009), in addressing the issue that is now before this Court. Rejecting the defendant s argument that 504(d) incorporated Title I in its entirety, the Ninth Circuit explained that the scope of the two statutes may differ in part because they have different constitutional bases: the ADA was enacted pursuant to the Commerce Clause, and its definition of a covered employer simultaneously creates its nexus 11

to commerce and limits its reach, whereas 504 of the Rehabilitation Act was enacted pursuant to the Spending Clause, which has broader application because it only places restrictions on entities that choose to accept federal funds. Id. at 941 n.3. Both the Ninth and Tenth Circuits have taken care to preserve the differing scopes of the two statutes while affording appropriate meaning to the Rehabilitation Act s invocation of the standards in Title I. Finally, this Court has already implicitly rejected total incorporation of Title I. In Soledad v. U.S. Department of Treasury, 304 F.3d 500 (5th Cir. 2002), the Court held that although 504 adopts the ADA s standards for employment discrimination claims, the ADA s more lenient causation standard (i.e., that discrimination was a factor in the adverse employment action) did not apply in cases brought under 504 because the ADA s standard directly conflicted with 504 s express requirement that plaintiffs prove the decision was made solely because of discrimination. Id. at 505. In context, the Court explained, the more specific solely by reason of language in 504 controlled. Id. Like the Ninth and Tenth Circuits, the Court recognized that 504(d) s reference to Title I of the ADA does not supplant the Rehabilitation Act s more specific textual provisions when the two conflict. See id. The result should be the same here: the statute s reference to 12

the ADA s standards does not replace the Act s more specific language providing that all qualified individuals with disabilities fall within 504 s coverage. C. Even If Independent Contractors Discrimination Claims are not Employment Discrimination Claims to which ADA Standards Apply, Contractors are Nonetheless Covered Individuals Participating in Federally Funded Programs. Even if the Court determines that 504(d) wholly incorporates Title I, it makes no sense to conclude that independent contractors are therefore excluded entirely from 504 s broad reach. Rather, if independent contractors cannot bring employment discrimination claims because they are not employees, they are instead covered as other individuals who are participating in an operation of a federally funded program other than employment. Under this analysis, the standards of Title I of the ADA would not apply to independent contractors claims; those claims would instead be assessed like the claims of any student, customer, or other participant in a covered program. This reasoning makes clear why the Eighth Circuit was wrong to conclude that the Rehabilitation Act must be extend[ed] in order to cover independent contractors: the statute already covers them. See Wojewski v. Rapid City Reg l Hosp., 450 F.3d 338, 345 (8th Cir. 2006). Indeed, the Court would need to carve out an extra-statutory exception to hold that contractors are the only people who cannot be 13

qualified individual[s] with [] disabilt[ies], thus categorically excluding them from 504 s broad coverage without Congress permission. See 29 U.S.C. 794(a). Of course, the substantive standards governing what conduct constitutes discrimination under Title I of the ADA may nonetheless provide the best means of assessing whether a covered entity has violated the Rehabilitation Act by discriminating against an independent contractor, making the distinction between this approach and selective incorporation of Title I an academic one. But that conclusion only underscores the absurdity of the notion that 504 s adoption of Title I s standards for employment discrimination claims somehow limits the statute s coverage as a whole. Regardless of whether contractors claims fall within the subset described in 504(d) as employment discrimination claims, courts must ultimately assess whether independent contractors are qualified individuals with disabilities that have been discriminated against or excluded from participation in a covered federally funded program or activity. If they must take a more laborious route to navigate this analysis, it should make no difference, because the destination should be the same: 504 covers independent contractors. 14

II. Congress Intended the Rehabilitation Act to Have Comprehensive Coverage, and Invoking the ADA Was Not Intended to Limit That Coverage. In addition to 504 s text, its legislative history makes unequivocally clear that Congress did not intend to limit the Act s coverage by incorporating the standards of Title I of the ADA. Congress deliberately crafted the Rehabilitation Act to have broad coverage, both in terms of who could bring a discrimination claim and against whom such a claim could be brought. See, e.g., Conrail, 465 U.S. at 632-33 (emphasizing Congress intent to enact a statute with a broad remedial purpose and scope); Sharer, 582 F.3d at 1178 (citing Haybarger, 551 F.3d at 200); Zimmerman v. Oregon, 170 F.3d 1169, 1181-1182 (9th Cir. 1999) (discussing breadth of statutory coverage). According to Senator Jeffords, a co-sponsor of the 1992 Amendments, the Rehabilitation Act was developed to apply to every phase of American life. 138 Cong. Rec. S 16608 (1992). And, since the statute s enactment, Congress has consistently demonstrated its dedication to preserving that comprehensive coverage. In 1987, for instance, Congress rejected a narrowing judicial construction of the statute s coverage provisions by amending the definition of program or activity to include all the operations of... a department, agency, special purpose district, or other instrumentality of a State or of a local government. Sharer, 581 F.3d at 1178 (citing 29 U.S.C. 794(b)(1)(A)). 15

The 1992 amendments to the Rehabilitation Act, which, inter alia, added 504(d) s reference to Title I of the ADA, were designed to preserve and even broaden 504 s coverage, not to narrow it. Congress emphasized that the amendments were intended to revise and extend the Rehabilitation Act of 1978.... the purpose of the Act is to develop and implement... comprehensive and coordinated programs of vocational rehabilitation and independent living for individuals with disabilities in order to maximize their employment, independence, and integration into the workplace and the community. S. Rep. No. 102-357, at 2 (1992), reprinted in 1992 U.S.C.C.A.N. 2712, 2714 (emphasis added). Congress particularly emphasized broad worker coverage, without suggesting any distinction between employees and contractors: As the period for reauthorization of the Rehabilitation Act draws near, we need our most creative thinking to forge a comprehensive Act that will enable us to respond to the work preparation needs of any individual who wants to work, regardless of the severity of his or her disability. Id. at 6, reprinted in 1992 U.S.C.C.A.N. at 3717 (emphasis added) (quoting Justin Dart, Chair of the President s Committee on the Employment of People with Disabilities) see also Schrader, 296 F.3d at 973. Moreover, the legislative record reflects no indication that Congress intended to narrow 504 s coverage by invoking Title I s standards, much less that it had in mind a scheme that would exclude contractors. Rather, the enactment history of 16

504 assumes that the issue of coverage has been resolved separately before the remedial purpose of the legislation takes effect : Now those who are covered by Title V of the Rehabilitation Act will know that these are the definitions of reasonable accommodation and discrimination that apply. They will also know that the standards governing preemployment inquiries and examinations, and inquiries of current employees apply. Incorporating the ADA standards into the Rehabilitation Act will assure that there will be consistent, equitable treatment for both individuals with disabilities and businesses under the two laws. Schrader, 296 F.3d at 973-74 (quoting 138 Cong. Rec. S16611 (statement of Senator Harkin)) (emphasis added). Rather than limiting 504 s coverage, Congress adopted Title I s standards as a basis for assessing violations of the Act. Fleming v. Yuma Reg'l Med. Ctr., 587 F.3d 938, 943 (9th Cir. 2009) ( [W]e think Congress meant for us to refer to Title I for guidance in determining whether the Rehabilitation Act was violated, but we do not think that Congress meant to restrict the coverage of the Rehabilitation Act. ). There is no indication that Congress intended to exclude independent contractors from the Act s broad coverage. Had that been Congress intention, it surely would have said so expressly. See Conrail, 465 U.S. at 635 ( [I]t would be anomalous to conclude that [a] section designed to enhance the ability of handicapped individuals to assure compliance with [ 504]... silently adopted a drastic limitation on the handicapped individual s right to sue federal grant 17

recipients for employment discrimination. ). Consequently, construing 504(d) to tacitly carve out an exception to the Act s coverage specifically for independent contractors, when all other qualified individuals with disabilities fall under its broad umbrella, would thwart Congress consistently expressed intent to maintain the statute s comprehensive prohibition on disability discrimination in federally funded programs. CONCLUSION For these reasons, the Court should reverse the district court s decision. Respectfully submitted, /s/ Dara S. Smith Brian East Dara S. Smith* Disability Rights Texas Daniel B. Kohrman 2222 W. Braker Ln. AARP Foundation Litigation Austin, Texas 78758 601 E Street, NW Tel. (512) 454-4816 Washington, DC 20049 Fax (512) 454-3999 Tel. (202) 434-6280 beast@disabilityrightstx.org Fax (202) 434-6424 (f) dsmith@aarp.org dkohrman@aarp.org Attorneys for Amici Curiae *Counsel of Record July 15, 2015 18

CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitation of Fed. R. App. P. 28.1(e)(2) or 32(a)(7)(B) because this brief contains 4022 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced 14-point typeface using Microsoft Word 2010. Dated: July 15, 2015 /s/ Dara S. Smith Dara S. Smith Attorney for Amici Curiae 19

CERTIFICATE OF SERVICE AND FILING I hereby certify that on July 15, 2015, the foregoing BRIEF OF AMICI CURIAE AARP AND DISABILITY RIGHTS TEXAS SUPPORTING PLAINTIFF- APPELLANT, ROCHELLE FLYNN was electronically filed with the Clerk of the Court for the United States Court of Appeals of the Fifth Circuit using the appellate CM/ECF system which will send notice of such filing to the following registered CM/ECF users: Robert Chris Pittard Counsel for Plaintiff-Appellant, Rochelle Flynn Forte & Pittard, P.L.L.C. 1777 N.E. Loop 410, Suite 600 San Antonio, TX 78217 (210) 678-3075 (p); (210) 820-2609 (f) chrisp@forteandpittardlawfirm.com Michael David McQueen Counsel for Defendant-Appellee, Distinctive Home Care, Inc., d/b/a Distinctive Healthcare Staffing, Inc. Kemp Smith, L.L.P. 221 N. Kansas Street, Suite 1700 El Paso, TX 79901 (915) 533-4424 (p); (915) 546-5360 (f) mmcq@kempsmith.com James Michael Kimbell, Esq. Counsel for Spectrum Healthcare Resources, Inc. Strasburger & Price, L.L.P. 909 Fannin Street, Suite 2300 Houston, TX 77010 (713) 951-5632 (p); (713) 951-5660 (f) james.kimbell@strasburger.com 20

Katherine T. Garber, Esq. Counsel for Spectrum Healthcare Resources, Inc. Strasburger & Price, L.L.P. 909 Fannin Street, Suite 2300 Houston, TX 77010 (713) 951-5665 (p); (713) 951-5660 (f) kathy.garber@strasburger.com Dated: July 15, 2015 /s/ Dara S. Smith Dara S. Smith Attorney for Amici Curiae 21