Fleming v. Yuma Regional Medica ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LESTER FLEMING, 
Plaintiff-Appellant, No. 07-16427
v. D.C. No.
YUMA REGIONAL MEDICAL CENTER;  CV-05-03906-PHX-
YUMA ANESTHESIA MEDICAL ROS
SERVICES, OPINION
Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Argued and Submitted
February 12, 2009—San Francisco, California
Filed November 19, 2009
Before: Ronald M. Gould and Jay S. Bybee, Circuit Judges,
and Timothy Tymkovich,* Circuit Judge.
Opinion by Judge Bybee
*The Honorable Timothy Tymkovich, United States Circuit Judge for
the Tenth Circuit, sitting by designation.
15323
15326 FLEMING v. YUMA REGIONAL MEDICAL CENTER
COUNSEL
Stanley Lubin (argued), Lubin & Enoch, P.C., Phoenix, Ari-
zona; Stephanie M. Marnin, Outten & Golden, L.L.P., Stam-
ford, Connecticut, for the plaintiff-appellant.
Sandra J. Creta, Quarles & Brady L.L.P., Phoenix, Arizona,
for the defendants-appellees.
OPINION
BYBEE, Circuit Judge:
This case presents a question of first impression in our
court: Does § 504 of the Rehabilitation Act, 29 U.S.C. § 794,
extend to a claim of discrimination brought by an independent
contractor? In order to answer that question, we must decide
whether § 504(d), which refers to “the standards applied
under title I of the Americans with Disabilities Act . . . as such
sections relate to employment,” incorporates Title I literally
or selectively. If Title I is incorporated literally, then the
Rehabilitation Act is limited by the ADA and only covers
employer-employee relationships in the workplace; if selec-
tively, then the Rehabilitation Act covers all individuals “sub-
ject to discrimination under any program or activity receiving
Federal financial assistance,” who may bring an employment
discrimination claim based on the standards found in the
ADA. 29 U.S.C. § 504(a). The Sixth and Eighth Circuits have
concluded that Title I is incorporated literally, Wojewski v.
Rapid City Reg’l Hosp., 450 F.3d 338 (8th Cir. 2006); Hiler
v. Brown, 177 F.3d 542 (6th Cir. 1999), while the Tenth Cir-
cuit has concluded that Title I is incorporated selectively.
Schrader v. Ray, 296 F.3d 968 (10th Cir. 2002). We agree
with the Tenth Circuit, and conclude that § 504 incorporates
the “standards” of Title I of the ADA for proving when dis-
crimination in the workplace is actionable, but not Title I in
FLEMING v. YUMA REGIONAL MEDICAL CENTER 15327
toto, and therefore the Rehabilitation Act covers discrimina-
tion claims by an independent contractor. Accordingly, we
reverse the judgment of the district court.
I
For purposes of this appeal, the facts of this case are simple
and not contested. Dr. Lester Fleming is an anesthesiologist
who suffers from sickle cell anemia. In 2005, Fleming applied
for a position as an anesthesiologist at the Yuma Regional
Medical Center (“Yuma”). Upon learning of Fleming’s sickle
cell anemia, Yuma told him that it would not be able to
accommodate his operating room and call schedules. Fleming
declined to accept this condition of employment, effectively
cancelling the contract.
Fleming brought suit against Yuma1 for breach of his
employment contract and employment discrimination in vio-
lation of § 504 of the Rehabilitation Act. The district court
granted summary judgment in Yuma’s favor, ruling that (1)
Fleming was an independent contractor, and that (2) indepen-
dent contractors are not protected by the Rehabilitation Act.
Fleming appeals the ruling that the Rehabilitation Act does
not apply to independent contractors; he does not, however,
appeal the district court’s finding that he is an independent con-
tractor.2
II
[1] The Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq.,
was the “first major federal statute designed to protect the
1
Fleming also brought suit against Yuma Anesthesia Medical Services
(“YAMS”). The distinction between Yuma and YAMS is not relevant for
the purposes of this appeal. We therefore will refer to the defendants col-
lectively as “Yuma.”
2
We review a district court’s grant of summary judgment de novo.
United States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir. 2003).
15328 FLEMING v. YUMA REGIONAL MEDICAL CENTER
rights of . . . the handicapped people of this country.” Smith
v. Barton, 914 F.2d 1330, 1338 (9th Cir. 1990); see also Con-
sol. Rail Corp. v. Darrone, 465 U.S. 624, 626 (1984)
(describing the Act as “a comprehensive federal program
aimed at improving the lot of the handicapped”). Section 504
creates a private right of action for individuals subjected to
disability discrimination by any program or activity receiving
federal financial assistance, Kling v. Los Angeles County, 633
F.2d 876, 878 (9th Cir. 1980), including employment discrim-
ination in such programs, Consol. Rail, 465 U.S. at 632; Boyd
v. U.S. Postal Serv., 752 F.2d 410, 413 (9th Cir. 1985). It pro-
vides that “[n]o otherwise qualified individual with a disabil-
ity . . . 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 activ-
ity receiving Federal financial assistance.” 29 U.S.C.
§ 794(a). The Rehabilitation Act broadly defines “program or
activity” to include “all of the operations of— . . . an entire
corporation, partnership, or other private organization, or an
entire sole proprietorship” if the entity as a whole receives
federal assistance or if the entity “is principally engaged in the
business of providing education, health care, housing, social
services, or parks and recreation,” and various other services.
29 U.S.C. § 794(b)(3)(A).
[2] The Rehabilitation Act, as amended, incorporates vari-
ous standards and remedies from other civil rights laws. Most
important for our case, § 504(d) provides that “[t]he standards
used to determine whether this section has been violated in a
complaint alleging employment discrimination under this sec-
tion shall be the standards applied under title I of the Ameri-
cans with Disabilities Act . . . as such sections relate to
employment.” 29 U.S.C. § 794(d). See 42 U.S.C. §§ 12111-
17, 12201-04, 12210. Title I of the ADA defines key terms in
the act, § 12111, defines discrimination in the workplace,
§ 12112, provides for defenses and limitations for employees
using illegal drugs or alcohol, §§ 12113-14, 12210, and com-
mits enforcement to the Equal Opportunity Employment
FLEMING v. YUMA REGIONAL MEDICAL CENTER 15329
Commission and the Attorney General, § 12117. Although we
have not addressed the question, other circuits have held that
independent contractors are not covered by Title I. Aberman
v. J. Abouchor & Sons, Inc., 160 F.3d 1148, 1150 (7th Cir.
1998); Johnson v. City of Saline, 151 F.3d 564, 567-69 (6th
Cir. 1998); Birchem v. Knights of Columbus, 116 F.3d 310,
312-13 (8th Cir. 1997).
[3] The issue before us is whether Dr. Fleming, as an inde-
pendent contractor, may maintain suit against Yuma based on
§ 504 of the Rehabilitation Act. Fleming urges us to read
§ 504(d) to mean that “[t]he standards“ of Title I of the ADA
—and not Title I itself—should be “used to determine
whether this section has been violated in a complaint alleging
employment discrimination.” 29 U.S.C. § 794(d) (emphasis
added). Relying on the Tenth Circuit’s opinion in Schrader,
Dr. Fleming would have us hold that § 504 does not literally
incorporate Title I of the ADA and, therefore, Ҥ 504(d)
addresses only the substantive standards for determining what
conduct violates the Rehabilitation Act, not the definition of
who is covered.” Schrader, 296 F.3d at 972.
Yuma, not surprisingly, offers a different view. It would
have us hold that § 504(d) incorporates Title I of the ADA in
toto, including any limitations found in those provisions.
Relying on decisions from the Sixth and Eighth Circuits,
Yuma argues that “the focus of the Rehabilitation Act is upon
providing remedies for individuals who are employees” and
therefore the Rehabilitation Act, like Title I of the ADA, “re-
quires an employee-employer relationship.” Wojewski, 450
F.3d at 345. The district court agreed with Yuma and found
that Fleming was not an employee, but an independent con-
tractor. It then held, citing PGA Tour, Inc. v. Martin, 532 U.S.
661, 692 (2001) (Scalia, J., dissenting), that “[e]mployment
actions under the Rehabilitation Act may only be brought by
employees and cannot be brought by independent contrac-
tors.” Thus, Yuma and the district court would have us read
15330 FLEMING v. YUMA REGIONAL MEDICAL CENTER
Title I of the ADA into § 504(d) as though Title I had been
incorporated on a jot-for-jot basis.
III
Although the matter is not entirely free from doubt, we
agree with Dr. Fleming that he is covered by the Rehabilita-
tion Act even though he is an independent contractor. We
reach this conclusion for several reasons.
A
[4] First, the scope of the Rehabilitation Act is broader than
the ADA.3 The Rehabilitation Act covers any “otherwise
qualified individual” who has been “excluded from the partic-
ipation in, or denied the benefits of, or . . . subjected to dis-
crimination under any program or activity receiving Federal
financial assistance.” 29 U.S.C. § 794(a). The Rehabilitation
Act covers any program receiving federal funds. The Act
carefully defines “program or activity” as “all of the opera-
tions of” state instrumentalities, colleges and universities,
local education agencies, and “an entire corporation, partner-
ship, or other private organization, or an entire sole propri-
3
We note that the Rehabilitation Act and the ADA appear to rely on dif-
ferent constitutional footings, which may explain the difference in scope.
The Rehabilitation Act, at least insofar as it applies to private entities,
draws on Congress’s conditional spending power. U.S. CONST. art. I, § 8,
cl. 1. See 29 U.S.C. § 794(a) (regulating “any program or activity receiv-
ing Federal financial assistance”); Constantine v. Rectors and Visitors of
George Mason Univ., 411 F.3d 474, 491 (4th Cir. 2005) (explaining that
§ 504 of the Rehabilitation Act “ ‘invokes Congress’ power under the
Spending Clause to place conditions on the grant of federal funds.’ ”
(quoting Barnes v. Gorman, 536 U.S. 181, 186 (2002))) (citation omitted);
see also Barnes, 536 U.S. at 189-90 & n.3. The ADA derives from Con-
gress’s power under the Commerce Clause. U.S. CONST. art. I, § 8, cl. 3;
see 42 U.S.C. § 12111(5) (“ ‘employer’ means a person engaged in an
industry affecting commerce”); United States v. Miss. Dep’t of Pub.
Safety, 321 F.3d 495, 500 (5th Cir. 2003) (noting that “the ADA is an
exercise of Commerce Clause power”).
FLEMING v. YUMA REGIONAL MEDICAL CENTER 15331
etorship.” 29 U.S.C. § 794(b) (emphasis added). This
language has led us to interpret “program or activity broadly.”
Sharer v. Oregon, 581 F.3d 1176, 1178 (9th Cir. 2009) (quot-
ing Haybarger v. Lawrence County Adult Prob. & Parole,
551 F.3d 193, 200 (3d Cir. 2008) (internal quotation marks
omitted)). Thus, the Rehabilitation Act covers “all of the
operations” of covered entities, not only those related to
employment.
By contrast, Title I of the ADA prohibits “discriminat[ion]
against a qualified individual . . . 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.” 42 U.S.C. § 12112. Title I covers
all aspects of the employer-employee relationship, but unlike
§ 504 of the Rehabilitation Act, it does not cover other rela-
tionships, which are addressed elsewhere in the ADA. See
Zimmerman v. Or. Dep’t of Justice, 170 F.3d 1169, 1172,
1177-78 (9th Cir. 1999).
B
[5] Second, Congress did not use language of incorporation
when it referred to the ADA in § 504. Instead, Congress
referred to the “standards used to determine whether [§ 504]
has been violated in a complaint alleging employment dis-
crimination.” 29 U.S.C. § 794(d) (emphasis added). We think
the choice of words is significant. The Supreme Court’s deci-
sion in Consolidated Rail Corp. v. Darrone is instructive in
this regard. Section 505 of the Rehabilitation Act provides
that “[t]he remedies, procedures, and rights set forth in title VI
of the Civil Rights Act of 1964 shall be available to any per-
son aggrieved . . . by any recipient of Federal assistance . . .
under section 794 of this title.” 29 U.S.C. § 794a(a)(2). In
Consolidated Rail, Conrail had refused to employ a locomo-
tive engineer who had become disabled, although it did not
find him unfit for employment. The engineer brought suit
15332 FLEMING v. YUMA REGIONAL MEDICAL CENTER
under § 504. Conrail argued that § 604 of Title VI limited
employment discrimination actions to those employers who
received federal financial assistance so long as the “primary
object of the Federal financial assistance is to provide
employment.” 42 U.S.C. § 2000d-3; see 465 U.S. at 628.
Conrail argued that, because § 504 incorporated Title VI,
employment discrimination actions under the Rehabilitation
Act were limited to those programs receiving funds “to pro-
vide employment” and, since the primary objective of the fed-
eral assistance received by Conrail was not to provide
employment, the engineer could not bring suit under § 504.
The Court rejected Conrail’s argument:
It is clear that § 504 itself contains no such limita-
tion. Section 504 neither refers explicitly to § 604
nor contains analogous limiting language; rather,
that section prohibits discrimination against the
handicapped under ‘any program or activity receiv-
ing Federal financial assistance.’ And it is unques-
tionable that the section was intended to reach
employment discrimination.
465 U.S. at 632 (footnote omitted).
[6] The Court in Consolidated Rail pointed to two facts: (1)
§ 504 had a broad definition of covered programs, and (2)
although § 504 referred to Title VI, it did not refer “explicit-
ly” to language in § 604 that would have restricted its scope.
Similarly, we can find no language in § 504(d) that explicitly
adopts those sections of Title I that would restrict the scope
of the Rehabilitation Act. When Congress said that the Reha-
bilitation Act should use the “standards” applicable to
employment discrimination claims brought under Title I, we
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.
FLEMING v. YUMA REGIONAL MEDICAL CENTER 15333
[7] In Zimmerman v. State Department of Justice, 170 F.3d
1169 (9th Cir. 1999), we dealt with a similar issue to that
presented in Consolidated Rail and here: Whether Title II of
the ADA, by referring to the Rehabilitation Act, either
expressly or impliedly incorporated that act into the ADA. See
42 U.S.C. § 12133 (adopting the “remedies, procedures, and
rights set forth in section 794a of Title 29”). We held that
“Congress’ choice to incorporate one section of the Rehabili-
tation Act, which provides certain procedures, does not dem-
onstrate that Congress also intended to incorporate the rest of
the Rehabilitation Act’s substance.” 170 F.3d at 1179. Fol-
lowing Zimmerman’s lead, we decline to hold that because
§ 504(d) refers to Title I of the ADA, the ADA somehow nar-
rows the scope of § 504(a). As we observed there, under the
Rehabilitation Act, “[d]iscrimination is prohibited under any
program or activity that receives such [Federal financial]
assistance. This focus naturally encompasses the entire opera-
tion of the program or activity, for its federal funding may
well flow into compensation for employees,” and, we would
add, for independent contractors as well. Id. at 1181.
C
[8] Third, jot-for-jot incorporation would substantially nar-
row the scope of the Rehabilitation Act in other ways as well.
For example, the ADA’s definition of employer, which
“means a person engaged in an industry affecting commerce
who has 15 or more employees,” 42 U.S.C. § 12111(5),
would, under Yuma’s theory, now govern employment dis-
crimination claims under the Rehabilitation Act. But incorpo-
rating that standard would significantly limit the availability
of employment discrimination claims under the Rehabilitation
Act, a result that seems at odds with Congress’s broad defini-
tion of “program[s] and activit[ies]” covered by the Rehabili-
tation Act. 29 U.S.C. § 794(b). Without additional direction
from Congress, we are hesitant to reduce the express scope of
the Rehabilitation Act by wholesale adoption of definitions
from another act. See Gross v. FBL Fin. Servs., Inc., 129 S.
15334 FLEMING v. YUMA REGIONAL MEDICAL CENTER
Ct. 2343, 2349 (2009) (“When conducting statutory interpre-
tation, we ‘must be careful not to apply rules applicable under
one statute to a different statute without careful and critical
examination.’ ” (quoting Fed. Express Corp. v. Holowecki,
128 S. Ct. 1147, 1153 (2008))). Ironically, if we adopted the
district court’s and Yuma’s position, we would have to con-
clude that Congress narrowed the Rehabilitation Act by
adopting the ADA. That conclusion contradicts the plain
import of those acts, and we decline to go down that road
without a clearer indication that Congress wanted us to.
[9] We find the reasoning of the Tenth Circuit persuasive.
In Schrader v. Ray, the issue was whether § 504(d) of the
Rehabilitation Act incorporated the ADA’s “ ‘fifteen or more
employees’ definition of employer as a limitation on the defi-
nition of entities covered by the Rehabilitation Act.” 296 F.3d
at 971. Deciding that it did not, the court adopted the reason-
ing from Johnson v. N.Y. Hospital, 897 F. Supp. 83 (S.D.N.Y.
1995):
In enacting the 1992 amendment of the Rehabilita-
tion Act, Congress intended that the standard of
“reasonable accommodations” that employers must
make under the ADA would serve as the standard in
actions alleging Rehabilitation Act violations in the
employer-employee context. . . . What the amend-
ment 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
instance.
Schrader, 296 F.3d at 972 (quoting Johnson, 897 F. Supp. at
86). The Tenth Circuit concluded that § 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.” 296 F.3d at 972.
FLEMING v. YUMA REGIONAL MEDICAL CENTER 15335
Latching on to the word “substantive,” Yuma argues that
we are bound by the Supreme Court’s more recent decision in
Arbaugh v. Y & H Corp., 546 U.S. 500 (2006), in which the
Court held that the fifteen-employee qualification in Title
VII’s definition of employer is “substantive.” Yuma contends
that: (1) Section 504(d) incorporates Title I’s substantive
requirements; (2) Arbaugh holds that the definition of “em-
ployer” is substantive; (3) therefore, § 504 incorporates Title
I’s definition of “employer.” Yuma’s argument has two prob-
lems. First, Yuma places undue weight on the term “substan-
tive,” a term that does not appear in § 504(d). It is true that
other circuits have sensibly described the standards referred to
in § 504(d) as “substantive,”4 but that descriptive term tells us
little about the scope of the Rehabilitation Act.
The other problem with Yuma’s argument is that it equivo-
cates two meanings of “substantive”: substantive as opposed
to jurisdictional, and substantive as opposed to procedural. In
Arbaugh, the Supreme Court examined whether Title VII’s
definition of “employer” as an entity that employs fifteen or
more employees is jurisdictional or a “substantive ingredient
of a Title VII claim.” 546 U.S. at 503. The Court concluded
that the fifteen-or-more-employees requirement concerns the
substantive adequacy of the claim and was not a prerequisite
for establishing subject matter jurisdiction. Id. at 504. How-
ever, the Supreme Court’s conclusion that Title VII’s defini-
tion of employer is substantive rather than jurisdictional does
not force the conclusion that the definition is “substantive”
rather than “procedural,” or something else. These are differ-
ent contrast classes.5 That the Supreme Court determined that
4
See McDonald v. Pa. Dep’t of Pub. Welfare, 62 F.3d 92, 95 (3d Cir.
1995) (“Whether suit is filed under the Rehabilitation Act or under the
Disabilities Act, the substantive standards for determining liability are the
same.”); Myers v. Hose, 50 F.3d 278, 281 (4th Cir. 1995) (“[W]hether suit
is filed against a federally-funded entity under the Rehabilitation Act or
against a private employer under the ADA, the substantive standards for
determining liability are the same.”).
5
As a simple example, one must recognize when seeking directions that
right rather than left doesn’t necessarily also mean right rather than wrong.
15336 FLEMING v. YUMA REGIONAL MEDICAL CENTER
the fifteen-employee requirement is a “substantive ingredient”
of a Title VII claim does not tell us whether the ADA’s defi-
nition of employer is part of the ADA’s substantive standard
for determining when discrimination occurs. Arbaugh, there-
fore, did not address, let alone answer the question before us.
D
Fourth, if we adopted Yuma’s reading, there would be sub-
stantial duplication between the Rehabilitation Act and the
ADA—perhaps inconsistent duplication—in the definitions of
key terms. Section 504 refers to 29 U.S.C. § 705(20) for a
definition of the term “individual with a disability.” Section
705(20) defines that term generally and then creates certain
exclusions. It addresses employment in two specific cases. In
§ 705(20)(C)(v), the Rehabilitation Act provides that “[f]or
purposes of [29 U.S.C. §§ 793 and 794] as such sections
relate to employment, the term ‘individual with a disability’
does not include any individual who is an alcoholic” if alco-
holism prevents the individual from performing his duties.
And § 705(20)(D), for purposes of employment, similarly
excludes persons who have a “currently contagious disease or
infection” if the disease or infection would “constitute a direct
threat to the health or safety” of others. 29 U.S.C.
§ 705(20)(D).
Title I of the ADA has its own provisions relating to “infec-
tious and communicable diseases,” 42 U.S.C. § 12113(d), and
illegal use of drugs and alcohol, 42 U.S.C. § 12114. If Yuma
is correct that Title I is incorporated into the Rehabilitation
Act, then either the ADA’s exclusions for communicable dis-
eases and illegal use of drugs and alcohol displace the Reha-
bilitation Act’s own exclusions, or we have to harmonize
parallel sections. We have not undertaken a side-by-side com-
parison of the Rehabilitation Act’s provisions with those of
the ADA in these areas, but the duplication suggests that Con-
gress has established two parallel schemes, which counsels
FLEMING v. YUMA REGIONAL MEDICAL CENTER 15337
against finding that Congress created one scheme and then
displaced it with a second, duplicative scheme.
E
We recognize that our decision puts us in conflict with the
Sixth and Eighth Circuits. With all due respect, we do not find
their analysis of the Rehabilitation Act persuasive. In contrast
to the Tenth Circuit’s decision in Schrader, the Eighth Circuit
held that § 504(d) does incorporate the ADA’s employee-
employer requirement into the Rehabilitation Act. Wojewski
v. Rapid City Reg’l Hosp., Inc., 450 F.3d 338, 345 (8th Cir.
2006). Its brief discussion noted: “Given the similarity
between Title I and the Rehabilitation Act, absent authority to
the contrary, we construe both to apply to an employee-
employer relationship and decline [the] appellant’s invitation
to extend coverage of the Rehabilitation Act to independent
contractors.” Id. In our view, however, there is no need here
to “extend” the Rehabilitation Act; its language is broad
enough to cover employees and independent contractors alike.
In this respect, Title I and § 504 are quite different. Section
504 does not even mention employment, while Title I deals
exclusively with employment. Zimmerman, 170 F.3d at 1176-
77. We thus do not find the Eighth Circuit’s cursory compari-
son of § 504 and Title I to be persuasive evidence that the
Rehabilitation Act excludes independent contractors.6
The Sixth Circuit also incorporated, albeit indirectly, the
6
The district court and Yuma rely on a statement in Justice Scalia’s dis-
sent in PGA Tour that Title I “does not protect independent contractors.”
532 U.S. at 692 (Scalia, J., dissenting). The statement, of course, is
entirely unexceptional. Title I of the ADA is about employment. See Zim-
merman, 170 F.3d at 1176 (“Title I contains detailed and comprehensive
employment provisions”). The question here is whether the Rehabilitation
Act’s reference to Title I binds the Rehabilitation Act to the same mean-
ing. For the reasons we have described above, we do not think Justice
Scalia’s bare observation in his dissent in PGA Tour informs the discus-
sion.
15338 FLEMING v. YUMA REGIONAL MEDICAL CENTER
ADA’s limitation into the Rehabilitation Act, holding that
“individuals who do not otherwise meet the [Title VII] statu-
tory definition of ‘employer’ cannot be held liable under the
Rehabilitation Act’s anti-retaliation provision.” Hiler v.
Brown, 177 F.3d 542, 547 (6th Cir. 1999). As an initial mat-
ter, the Sixth Circuit’s decision in Hiler is of dubious rele-
vance to this case because the claim in Hiler was brought
under § 501 of the Rehabilitation Act—not § 504. See id. at
545. Additionally, at issue in Hiler was whether the Rehabili-
tation Act created a private cause of action against supervisors
in their individual capacities for retaliation. Id. at 543. In con-
cluding that it did not, the Sixth Circuit noted that the ADA
and Rehabilitation Act “borrowed the definition of ‘employer’
from Title VII” and therefore if an individual does not meet
the Title VII definition of employer, he cannot be liable under
the Rehabilitation Act’s anti-retaliation provision. Id. at 546
n.5, 547. Though Hiler states that the Rehabilitation Act bor-
rowed the definition of employer from Title VII, § 504 specif-
ically defines the entities to which it applies, and does not
address employers. See 29 U.S.C. §§ 705(20), 794(a), (b). In
short, Hiler does not speak to the issue in the case before us,
and to the extent it does, we are not moved by its analysis.
Finally, although we have rejected it, we recognize that
there is some force to the position taken by the district court
and Yuma and endorsed by the Eighth and Sixth Circuits.
Section 504(d) plainly refers us to Title I of the ADA “as such
sections relate to employment.” We recognize that such lan-
guage of referral might be read to suggest that Title I was to
be incorporated jot-for-jot into employment discrimination
actions brought under the Rehabilitation Act. We also
acknowledge that jot-for-jot incorporation is in some respects
easier to administer than a selective regime. But our own
administrative convenience is not a factor in determining what
Congress meant, and for the reasons discussed we have con-
cluded that this is not the best reading of the Rehabilitation
Act.
FLEMING v. YUMA REGIONAL MEDICAL CENTER 15339
IV. CONCLUSION
[10] We hold that § 504 of the Rehabilitation Act is not
limited to employers and employees as defined in Title I of
the ADA, but rather applies to independent contractors and
the entities that hire them. Fleming’s disability discrimination
claim under § 504 is proper and his action against Yuma may
proceed.
REVERSED.