In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3859

Hattie M. Morgan, et al.,

Plaintiffs-Appellants,

v.

Joint Administration Board, Retirement Plan
of The Pillsbury Company and American
Federation of Grain Millers, AFL-CIO-CLC,

Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of Indiana, New Albany Division.
No. 00 C 6--David F. Hamilton, Judge.

Argued April 6, 2001--Decided October 11, 2001



  Before Flaum, Chief Judge, and Posner and
Williams, Circuit Judges.

  Posner, Circuit Judge. The plaintiffs
appeal from the dismissal for failure to
state a claim of their suit under the
Americans with Disabilities Act against
the administrator of a retirement plan
negotiated between their former employer
and their union. The plan provides
separately for employees who retire upon
reaching age 55 or 65 ("early" and
"normal" retirees, respectively) and for
those including the plaintiffs who retire
early because they have become totally
disabled from working ("disability"
retirees). In 1999 the plan was amended
to grant a cost of living increase to
early and normal retirees but not to
disability retirees, precipitating this
suit.

  The employment provisions of the ADA
(Title I) grant rights only to employees
who, though they have a disability, are
able to perform the essential functions
of their job even if only with some
accommodation to their disability. 42
U.S.C. sec.sec. 12111(8), 12112(a);
Sutton v. United Airlines, Inc., 527 U.S.
471, 477-78 (1999). The plaintiffs are
disabled, but they are not employees or
prospective employees who want to work
notwithstanding their disability. They
are totally disabled. They cannot work.
Several courts, ours included, have held
that retired and other former workers are
not protected by the employment
provisions of the Act. EEOC v. CNA Ins.
Cos., 96 F.3d 1039, 1041, 1045 (7th Cir.
1996); Weyer v. Twentieth Century Fox
Film Corp., 198 F.3d 1104, 1108-09 (9th
Cir. 2000); Gonzales v. Garner Food
Services, Inc., 89 F.3d 1523, 1526-27
(11th Cir. 1996). How could they be? They
cannot perform the essential functions of
their job, and therefore they have no
rights under the statutory provisions
cited above.

  The plaintiffs ask us to reexamine our
position in the light of a subsequent
decision by the Supreme Court involving
what they claim is a parallel issue under
Title VII of the Civil Rights Act of
1964. Robinson v. Shell Oil Co., 519 U.S.
337, 345-46 (1997), has persuaded two of
our sister circuits that retired
employees are protected by the ADA after
all. Castellano v. City of New York, 142
F.3d 58, 66-70 (2d Cir. 1998); Ford v.
Schering-Plough Corp., 145 F.3d 601,-605-
08 (3d Cir. 1998). Robinson’s employer
fired him, and he filed a charge with the
EEOC, claiming that he had been fired
because of his race. Later his now-former
employer gave him a negative employment
reference, allegedly in retaliation for
his having filed the charge. As the Court
explained, not to let people in
Robinson’s position sue for retaliation
"would undermine the effectiveness of
Title VII by allowing the threat of
postemployment retaliation to deter
victims of discrimination from
complaining to the EEOC, and would
provide a perverse incentive for
employers to fire employees who might
bring Title VII claims." 519 U.S. at 346.

  We anticipated and discussed the
difference between that situation and the
one here in the case the plaintiffs ask
us to overrule. EEOC v. CNA Ins. Cos.,
supra, 96 F.3d at 1044-45. The difference
is stark. Allowing former employees to
complain about postemployment
discrimination that does not involve
retaliation would actually hurt them, in
the same way that denying them protection
against retaliation would hurt them: it
would create perverse incentives. Since
there is no legal requirement that
employers offer disability benefits as
part of their menus of fringe benefits,
compelling employers who do to maintain
them in lockstep with other benefits
would deter their provision. The employer
would tell its employees to buy their own
disability insurance or to rely on social
security disability benefits should they
become disabled. Since workers with a
disability are more likely than other
workers to become totally disabled and
have to retire early, an interpretation
of the Act that discouraged employers
from offering disability benefits would
make the workplace less attractive to
such workers. The purpose of the Act’s
employment provisions is to draw workers
with a disability into the workforce. 42
U.S.C. sec. 12101(a)(8); Tyndall v.
National Education Centers, Inc. of
California, 31 F.3d 209, 215 (4th Cir.
1994); Bonnie Poitras Tucker, Federal
Disability Law in a Nutshell 5-6 (1998).
The interpretation for which the
plaintiffs contend would have the
opposite effect.

  We have been talking practical effects
but the language of the Americans with
Disabilities Act also supports
differentiating retaliation plaintiffs
from discrimination plaintiffs. The
statutory protections against
discrimination are protections of
"[otherwise] qualified individual[s] with
a disability," 42 U.S.C. sec. 12112(a),
but the retaliation provision protects
individuals, period: "No person shall
discriminate against any individual
because such individual has opposed any
act or practice made unlawful by this
chapter or because such individual made a
charge, testified, assisted, or
participated in any manner in an
investigation, proceeding, or hearing
under this chapter." 42 U.S.C. sec.
12203(a). The plaintiffs in our case are
certainly individuals, but they are not
qualified individuals with a disability,
that is, qualified (able) to work with or
without a reasonable accommodation to
their disability; they are totally
disabled and so utterly unable to work.

  The plaintiffs argue that this is a
special case because the disability
retirement provisions are contained in
the same plan as the normal retirement
benefits and are calculated the same way
except for the difference in eligibility
(age 65 in the case of normal benefits,
total disability in the case of
disability benefits). But so what? The
plaintiffs would rightly not concede that
an employer could avoid the rule for
which they contend by the simple
expedient of having separate disability
plans, or different formulas for
computing benefits, for normal and
disability retirees. The logic of the
plaintiffs’ position is that disability
retirees must be treated in all respects
as well as normal retirees are treated
regardless of purely formal, readily
alterable characteristics of the plan.

  "Treated in all respects as well as
normal retirees must be treated. . . ."
But how is that to be determined? On the
one hand, a normal retiree will get a
larger pension than a disability retiree
because he has more years of service. On
the other hand, a worker who becomes
totally disabled can obtain benefits with
only nine and a half years of service. He
gets a smaller pension, but gets it
sooner, maybe much, much sooner, in which
event he may--despite the absence, of
which the plaintiffs complain, of a cost
of living increase--be treated better
than a normal retiree. We doubt that the
framers of the ADA wanted the courts to
attempt such elusive comparisons.

  The plaintiffs have, however, another
string to their bow. They appeal to the
public accommodations provisions of the
Act (Title III), which forbid
discriminating against disabled persons
with respect to access to places of
public accommodation. 42 U.S.C. sec.
12182(a); PGA Tour, Inc. v. Martin, 121
S. Ct. 1879, 1889-90 (2001). The
defendant asks us to interpret "public
accommodation" literally, as denoting a
physical site, such as a store or a
hotel, but we have already rejected that
interpretation. An insurance company can
no more refuse to sell a policy to a
disabled person over the Internet than a
furniture store can refuse to sell furni
ture to a disabled person who enters the
store. Doe v. Mutual of Omaha Ins. Co.,
179 F.3d 557, 558-59 (7th Cir. 1999); to
the same effect, see Carparts
Distribution Center, Inc. v. Automotive
Wholesaler’s Ass’n of New England, Inc.,
37 F.3d 12, 19 (1st Cir. 1994); contra,
Weyer v. Twentieth Century Fox Film
Corp., supra, 198 F.3d at 1114-15; Ford
v. Schering-Plough Corp., supra, 145 F.3d
at 612; Parker v. Metropolitan Life Ins.
Co., 121 F.3d 1006, 1010-11 (6th Cir.
1997) (en banc). The site of the sale is
irrelevant to Congress’s goal of granting
the disabled equal access to sellers of
goods and services. What matters is that
the good or service be offered to the
public. Doe v. Mutual of Omaha Ins. Co.,
supra, 179 F.3d at 559; Carparts
Distribution Center, Inc. v. Automotive
Wholesaler’s Ass’n of New England, Inc.,
supra, 37 F.3d at 19. The retirement
plan was not offered to the public,
however. It was negotiated between the
employer and the representative of its
employees. No one could walk in off the
street and ask to become a plan
participant. The plan was a private deal,
not a public offering, and so the
plaintiffs’ public accommodations claim
fails as well.

Affirmed.
