                                                                           [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                                                                               FILED
                                      _______________                 U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                                                        NOVEMBER 21, 2001
                                        No. 99-14563                     THOMAS K. KAHN
                                      _______________                         CLERK

                          D.C. Docket No. 98-02383-CV-T-25E


JAMES JOHNSON,

                                                                    Plaintiff-Appellant,

                                             versus



K MART CORPORATION,

                                                                    Defendant-Appellee.

                                      _______________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                                  _______________

                                    (November 21, 2001)

Before CARNES and BARKETT, Circuit Judges, and POLLAK*, District Judge.
__________________________________________________________________
*Honorable. Louis H. Pollak, U.S. District Judge for the Eastern District of   Pennsylvania,
sitting by designation.
POLLAK, District Judge:

      This case presents two questions regarding the interpretation of Title I of the

Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., in

the context of the District Court’s grant of a motion to dismiss. In Part I, we

consider the question whether a former employee—as against a current employee

or an applicant—is eligible to file suit under 42 U.S.C. § 12112(a), which makes it

unlawful to “discriminate [with respect to employment] against a qualified

individual with a disability because of the disability of such individual . . . .” This

court has previously—over strong dissent—answered the question in the negative.

See Gonzales v. Garner Food Services, Inc., 89 F.3d 1523 (11th Cir. 1996), reh’g

denied, 104 F.3d 373 (11th Cir. 1996), cert. denied, 520 U.S. 1229 (1997). Herein

we revisit this question in light of the principles set forth in a subsequent Supreme

Court opinion, Robinson v. Shell Oil Co., 519 U.S. 337 (1997), which addressed

the same question as it arose under a cognate statute, Title VII of the Civil Rights

Act of 1964, answering the question in the affirmative. In our judgment, Robinson

mandates the conclusion that Gonzales is no longer good law and must be deemed

overruled. Accordingly, appellant is eligible to file suit under Title I. In Part II,

we proceed to the substantive question whether an employee can state a claim for a

violation of the ADA against a private employer when the employer has offered as


                                           2
a fringe benefit a long-term disability (“LTD”) insurance plan that provides less

generous benefits for those employees who become unable to work as a result of a

mental disability than for those rendered unable to work due to a physical

disability.

       We begin with a brief description of the factual basis of appellant’s claim.

Because the judgment under review granted the defendant’s motion to dismiss, our

factual recital assumes the truth of the facts alleged in the complaint.

       Appellant James Johnson worked for K Mart Corporation (“K Mart”) for

thirty years beginning in 1967. In 1996, appellant, who was then the manager of a

K Mart store in Tampa, Florida, sought medical treatment for severe depression

and emotional illness. Appellant continued his employment with K Mart until

October, 1997, when his physician advised him to stop working due to his mental

illness. At that time, Johnson applied for and received long-term disability benefits

from K Mart. Under K Mart’s LTD plan, employees who are disabled due to a

mental illness may receive salary-replacement benefits for two years, whereas

employees disabled due to a physical illness may receive such benefits until age

65.

       Johnson filed a charge of discrimination with the Equal Employment

Opportunity Commission (“EEOC”) on July 10, 1998, claiming that the cap on


                                           3
mental health-related disability benefits violated the ADA. After being issued a

Right to Sue letter by the EEOC, appellant brought this action in the United States

District Court for the Middle District of Florida on November 23, 1998. Appellant

amended his complaint in February, 1999, after which K Mart responded by filing

a motion to dismiss on two grounds: (1) that appellant was not within the

protective ambit of § 12112(a) because, as a former employee, he was not a

“qualified individual with a disability” as that phrase is defined, for ADA

purposes, in 42 U.S.C. § 12111(8);1 and (2) that providing different levels of long-

term disability benefits to individuals with mental and physical disabilities did not

constitute discrimination within the meaning of the ADA. The District Court

granted K Mart’s motion to dismiss without reaching the question whether

Johnson, as a former employee, was eligible to bring this action, basing its

dismissal solely on the finding that K Mart’s differential treatment of mental and

physical illnesses was not a violation of the ADA. The District Court voiced

agreement with circuits that have rejected the argument that an employer violates

the ADA by providing differential levels of long-term disability benefits to

       1
              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.

42 U.S.C. § 12111(8).

                                               4
employees with physical and mental disabilities.

       Johnson filed a timely appeal. The EEOC, as amicus curiae, filed a brief

supporting plaintiff-appellant on both grounds raised by K Mart in its motion to

dismiss.

                                     DISCUSSION

       This court reviews de novo a district court’s order dismissing an action for

failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). We may affirm the

District Court’s dismissal of Johnson’s complaint only if it is clear that Johnson

has not alleged a set of facts that would, if established at trial, entitle him to relief.

Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Harper v. Blockbuster

Entertainment Corp., 139 F.3d 1385, 1387 (11th Cir. 1998).

I      Whether Former Employees are Eligible to File Suit Under Title I of the
       ADA

       We start with the question whether a former employee who is no longer able

to work because of a disability is eligible to challenge a limitation on post-

employment benefits under the ADA. We commence with an examination of the

parties’ arguments with respect to the coverage of former employees because this

question is logically antecedent to a consideration of the merits of appellant’s




                                             5
claim.2 Having answered the question whether Title I covers former employees in

the negative in Gonzales, we agree with the EEOC that it is appropriate in the

context of this case to reexamine the vitality of the Gonzales decision in light of

the Supreme Court’s recent analysis in Robinson (holding that § 704(a) of Title VII

of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-3(a), allows suit by former

employees). See Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir.), cert. denied,

523 U.S. 1080 (1998) (“[O]nly the Supreme Court or this court sitting en banc can

judicially overrule a prior panel decision”).

       Johnson’s entitlement to bring this action turns on the construction of a

number of related sub-sections of the ADA. Our basic task is to construe 42

U.S.C. § 12112(a), which contains the general rule under Title I: “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.” For help with this

task, we look to the statutory definitions of the key terms “employee” and

“qualified individual with a disability.” “The term ‘employee’ means an individual

       2
         Although logically antecedent, the question was not addressed by appellant in his
opening brief on appeal. After K Mart raised the question in its brief on appeal, appellant
undertook to respond in his reply brief. The EEOC has given the question considerable attention
in its amicus brief.

                                               6
employed by an employer.” § 12111(4). The term “qualified individual with a

disability” (“QID”) 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.

42 U.S.C. § 12111(8). The general rule under Title I is further illuminated by the

statutory definition of the term “discriminate” in § 12112(b), which reads in part:

      As used in subsection (a) of this section, the term “discriminate”
      includes—

      (1) limiting, segregating, or classifying a job applicant or employee in
      a way that adversely affects the opportunities or status of such
      applicant or employee because of the disability of such applicant or
      employee;
      (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
      employment or referral agency, labor union, an organization providing
      fringe benefits to an employee of the covered entity, or an
      organization providing training and apprenticeship programs);
      (3) utilizing standards, criteria, or methods of administration—
             (A) that have the effect of discrimination on the basis of disability; or
             (B) that perpetuate the discrimination of others who are subject to
      common administrative control[.]3


      3
       The remainder of § 12112(b) states:

      (4) excluding or otherwise denying equal jobs or benefits to a qualified individual
      because of the known disability of an individual with whom the qualified
      individual is known to have a relationship or association;
      (5)(A) not making reasonable accommodations to the known physical or mental
      limitations of an otherwise qualified individual with a disability who is an

                                               7
       Before engaging in the statutory analysis required, we summarize the two

cases—Gonzales and Robinson—that will guide our assessment of the cumulative

force of these sections, and, thus, of the scope of the protection provided by §

12112(a).

       Gonzales was the first in a fractured series of decisions rendered by courts of

appeals addressing former employees’ eligibility to bring claims under the ADA.4

       applicant or employee, unless such covered entity can demonstrate that the
       accommodation would impose an undue hardship on the operation of the business
       of such covered entity; or
          (B) denying employment opportunities to a job applicant or employee who is
       an otherwise qualified individual with a disability, if such denial is based on the
       need of such covered entity to make reasonable accommodation to the physical or
       mental impairments of the employee or applicant;
       (6) using qualification standards, employment tests or other selection criteria that
       screen out or tend to screen out an individual with a disability or a class of
       individuals with disabilities unless the standard, test or other selection criteria, as
       used by the covered entity, is shown to be job-related for the position in question
       and is consistent with business necessity; and
       (7) failing to select and administer tests concerning employment in the most effective
       manner to ensure that, when such test is administered to a job applicant or employee who
       has a disability that impairs sensory, manual, or speaking skills, such test results
       accurately reflect the skills, aptitude, or whatever other factor of such applicant or
       employee that such test purports to measure, rather than reflecting the impaired sensory,
       manual, or speaking skills of such employee or applicant (except where such skills are
       the factors that the test purports to measure).
       4
         For decisions holding that former employees are eligible to bring claims under the ADA
based on limitations placed on post-employment fringe benefits, see Ford v. Schering-Plough
Corp., 145 F.3d 601 (3d Cir. 1998), cert. denied, 525 U.S. 1093 (1999); Castellano v. City of
New York, 142 F.3d 58 (2d Cir. 1998). For decisions holding that former employees are not
eligible to bring suit under the ADA, see Weyer v. Twentieth Century Fox Film Corp., 198 F.3d
1104 (9th Cir. 2000); EEOC v. CNA Ins. Cos., 96 F.3d 1039 (7th Cir. 1996). See also Smith v.
Midland Brake, Inc., 180 F.3d 1154, 1161 (10th Cir. 1999) (dictum) (holding that an employee is
a “qualified individual with a disability” when he or she can perform either the essential
functions of his or her existing job or of other jobs within the company that the employee
desires). Cf. Beauford v. Father Flanagan’s Boys’ Home, 831 F.2d 768 (8th Cir. 1987) (holding

                                               8
In Gonzales we accepted as true the following description of the facts: Timothy

Bourgeois was employed by a restaurant. After Bourgeois submitted health

insurance claims for medical treatment of AIDS under his employer’s health

insurance plan, the employer discharged Bourgeois in an attempt to limit future

health insurance claims. Following his termination, Bourgeois continued his health

insurance benefit coverage pursuant to the Consolidated Omnibus Budget

Reconciliation Act of 1985 (“COBRA”). See 89 F.3d at 1524. The employer then

imposed a cap for AIDS-related treatment on health insurance benefit coverage at

least in part because Bourgeois elected to continue in the benefit plan after he was

discharged. After Bourgeois’ death, August Gonzales, as the administrator of

Bourgeois’ estate, filed suit in the United States District Court for the Northern

District of Georgia, and the court granted a motion to dismiss for failure to state a

cognizable claim. On appeal, this court held—over a dissent—that the language of

the ADA codified at 42 U.S.C. § 12112(a) limited the protection afforded by the

statute to current employees and applicants, thereby affirming the District Court’s

ruling: “[W]e find the plain language of the ADA clearly demonstrates the intent of

Congress to limit the scope of the Act to only job applicants and current employees




former employees not within protection of § 504 of the Rehabilitation Act of 1973, 29 U.S.C. §
701 et seq.).

                                               9
capable of performing essential functions of available jobs.” Gonzales, 89 F.3d at

1528.

        We based the holding in Gonzales on the statutory definitions of the terms

“qualified individual with a disability,” “employee,” and “discriminate,” and found

that all three supported the finding that Congress intended to exclude former

employees: “Bourgeois does not satisfy the QID requirement under the plain

language of the ADA . . . because he neither held nor desired to hold a position

with [defendant] at or subsequent to the time the alleged discriminatory conduct

was committed. Rather, Bourgeois was a participant in the health benefit plan only

by virtue of his status as a former employee.” Id. at 1526. With respect to the

definition of “employee,” we observed that the ADA defines the term as “an

individual employed by an employer,” 42 U.S.C. § 12111(4), and found “[t]his

definition directly rebuts the suggestion of the dissent that nothing in the plain

meaning of [the] term [‘employee’] limits its scope to current employees as

opposed to former employees.” Gonzales, 89 F.3d at 1526 n.10. In addition, we

quoted § 12112(b), the provision that defines the term “discriminate,” and

concluded that the language covered only applicants and current employees.

        We found additional support in the statute’s legislative history:

        [T]he legislative history of the ADA specifically states that the
        purpose of including the phrase “essential functions” within the QID

                                           10
       definition is to “ensure that employers can continue to require that all
       applicants and employees, including those with disabilities, are able to
       perform the essential, i.e., the non-marginal functions of the job in
       question [sic].” H.R. Rep. No. 485(II), 101st Cong., 2d Sess. 55
       (1990), reprinted in 1990 U.S.C.C.A.N. 303, 337 (emphasis supplied).

Id. at 1527.

       In Gonzales we saw little merit in the argument that our decision in Bailey v.

USX Corp., 850 F.2d 1506 (11th Cir. 1988) (holding that former employees are

protected under the anti-retaliation provision of Title VII), was properly

transferable to the ADA. We distinguished the protection provided former

employees under the ADA from the protection afforded former employees from

retaliation under § 704(a) of Title VII:5

       This Court in Bailey cautioned that courts should avoid a literal
       interpretation of a statute when such an approach would frustrate the
       statute’s central purpose. Bailey, 850 F.2d at 1509. There is no such
       risk in this case. As this Court in Bailey recognized, the expansion of
       the term “employee” to confer standing to sue upon former employees
       claiming retaliation is necessary to provide meaning to anti-retaliation
       statutory provisions and effectuate congressional intent. Id. There
       are, however, no allegations of retaliation in this case, and excluding
       former employees from protection under the Act is not inconsistent
       with the policies underlying the statute. To the contrary, interpreting
       the ADA to allow any disabled former employee to sue a former

       5
         In Bailey we noted that courts have also applied similar rationales to anti-retaliation
provisions in the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”)
and in the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. (“FLSA”). See Bailey, 850
F.2d at 1509; EEOC v. Cosmair, Inc., 821 F.2d 1085 (5th Cir. 1987) (ADEA anti-retaliation
encompasses former employees); Dunlop v. Carriage Carpet Co., 548 F.2d 139 (6th Cir. 1977)
(FLSA anti-retaliation provision includes former employees).

                                               11
      employer essentially renders the QID requirement under the Act, that
      an individual with a disability hold or desire a position the essential
      functions of which he or she can perform, meaningless.

Gonzales, 89 F.3d at 1528-29 (footnotes omitted) (emphasis supplied).

      In dissent, Judge Anderson was not persuaded that the ADA protects only

currently active employees. Specifically, the dissent rejected the notion that the

plain meaning of the term “employee” was limited to current employees, and

countered the majority’s interpretation of the term “discriminate” in § 12112(b) by

emphasizing that the provision “sets out a nonexclusive list of actions (or types of

action) which constitute discrimination” that focuses on the description of actions

rather than on the description of persons protected by the Act. Id. at 1532 & n.2.

Finding no mandate in the common meaning of the statutory language, Judge

Anderson turned to the structure and purpose of the statute, and reasoned that these

weighed against the majority’s interpretation:

      The majority acknowledges that the protection of the Act extends to
      fringe benefits provided by employers, such as pension and profit-
      sharing plans and health benefit plans. It is a matter of common
      knowledge that fringe benefit plans routinely and commonly cover
      retirees and other former employees. Indeed, pension and profit-
      sharing plans are designed primarily for the post-employment years.
      It is entirely reasonable to infer that Congress intended the Act’s
      protection to extend to those individuals routinely and commonly
      included within such fringe benefit plans. It would be counter-
      intuitive, and quite surprising, to suppose (as the majority nevertheless
      does) that Congress intended to protect current employees’ fringe
      benefits, but intended to then abruptly terminate that protection upon

                                         12
      retirement or termination, at precisely the time that those benefits are
      designed to materialize. The structure of the statute, in clearly
      extending protection to fringe benefit plans, indicates that Congress
      intended protection for those routinely and commonly covered by
      such employer-provided plans.

Id. at 1532 (footnotes omitted).

      With the above overview of Gonzales in mind, we now undertake to convey

the pertinent aspects of Robinson, in which an unanimous Supreme Court resolved

a split among the circuits by holding that the term “employees”—as used in §

704(a) of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2003e-3(a) (“It shall

be an unlawful employment practice for an employer to discriminate against any of

his employees or applicants for employment . . . because he has opposed any

practice made an unlawful employment practice by this subtitle . . . .”), and defined

in § 701(f), 42 U.S.C. § 2000e(f) (“The term ‘employee’ means an individual

employed by an employer . . . .”)—includes former employees as well as current

employees and applicants. In Robinson, the plaintiff filed a race discrimination

charge with the EEOC shortly after being discharged by his former employer.

While the EEOC charge was pending, a prospective employer contacted the

plaintiff’s former employer for a reference. The gravamen of the plaintiff’s claim

was that his former employer provided a negative reference in retaliation for

plaintiff’s having filed the EEOC charge. The Fourth Circuit affirmed the District


                                         13
Court’s dismissal of the complaint for failure to state a claim, concluding that the

term “employees” plainly excludes former employees; that Title VII forbids

practices related to employment, not post-employment; and that the term “adverse

employment action” in § 704(a) necessarily refers to actions taken while a plaintiff

is actively employed by the defendant-employer. See Robinson v. Shell Oil Co.,

70 F.3d 325, 329-31 (4th Cir.), rev’d, 519 U.S. 337 (1997).

      The Supreme Court, speaking through Justice Thomas, encapsulated

standard rules of statutory construction, stating:

             Our first step in interpreting a statute is to determine whether
      the language at issue has a plain and unambiguous meaning with
      regard to the particular dispute in the case. . . .
             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, 519 U.S. at 340-41.

      The Court observed that “[a]t first blush” the term “employees” in § 704(a)

seems to refer to current employees. However, the Court concluded that such a

perception “does not withstand scrutiny” of the meaning of § 704(a). See id. at

341. The Court found that “there is no temporal qualifier in the statute such as

would make plain that § 704(a) protects only persons still employed at the time of

the retaliation.” Id. Thus, the Robinson Court endorsed an inquiry into the

meaning of statutory terms that extends beyond consideration of isolated words.

                                          14
      Finding § 704(a) ambiguous standing alone, the Court turned to an

examination of the definition of the term “employee” included in § 701(f) of Title

VII and determined that the statutory definition is itself inherently ambiguous as to

the coverage of former employees:

      Title VII’s definition of “employee” likewise lacks any temporal
      qualifiers and is consistent with either current or post employment.
      Section 701(f) defines “employee” for purposes of Title VII as “an
      individual employed by an employer.” 42 U.S.C. § 2000e(f). The
      argument that the term “employed,” as used in § 701(f), is commonly
      used to mean “[p]erforming work under an employer-employee
      relationship,” Black’s Law Dictionary 525 (6th ed. 1990), begs the
      question by implicitly reading the word “employed” to mean “is
      employed.” But the word “employed” is not so limited in its possible
      meanings, and could just as easily be read to mean “was employed.”

Id. at 342.

      The Court canvassed other provisions of Title VII in which the term

“employees” was alternately inclusive and exclusive of former employees,

commenting:

      But those examples at most demonstrate that the term “employees”
      may have a plain meaning in the context of a particular section—not
      that the term has the same meaning in all other sections and in all
      other contexts. Once it is established that the term “employees”
      includes former employees in some sections, but not in others, the
      term standing alone is necessarily ambiguous and each section must
      be analyzed to determine whether the context gives the term a further
      meaning that would resolve the issue in dispute.

Id. at 343-44.


                                         15
      Satisfied that the term “employees” as used in § 704(a) is ambiguous, the

Court resolved the ambiguity by turning to the broader context provided by other

sections of Title VII. In particular, the Court observed that § 703(a), which

protects against discriminatory discharge, provides an example of a section that

“plainly contemplate[s] that former employees will make use of the remedial

mechanisms of Title VII.” Id. at 345. Finally, the Court agreed with the EEOC

that an interpretation of § 704(a) to include former employees would be consistent

with the purpose of the anti-retaliation provision to maintain access to statutory

remedial mechanisms, and stated that “to hold otherwise would effectively vitiate

much of the protection afforded by § 704(a),” “would provide a perverse incentive

for employers to fire employees who might bring Title VII claims,” and would

make it possible for employers “to retaliate with impunity against an entire class of

acts under Title VII—for example, complaints regarding discriminatory

termination.” Id. at 345-46.

      In the case at bar we have been presented with markedly discrepant views as

to the pertinence of Robinson to the ADA. Appellant and the EEOC as amicus

argue that the approach taken by the Court in Robinson undermines the Gonzales

conclusion that the definitions of “qualified individual with a disability” in §

12111(8), of “employee” in § 12111(4), and of “discriminate” in § 12112(b)


                                          16
unambiguously exclude former employees. We are urged by appellant and amicus

to resolve the ambiguity attributed to those definitions and hence to § 12112(a)

(“No covered entity shall discriminate against a qualified individual with a

disability because of the disability of such individual in regard to . . . terms,

conditions, and privileges of employment.”) by looking to the broader context of

the ADA and ultimately concluding that Congress intended to include former

employees within the coverage of Title I. To this end, Johnson and the EEOC

invoke opinions of the Second and Third Circuits—Castellano v. City of New

York, 142 F.3d 58 (2d Cir. 1998) and Ford v. Schering-Plough Corp., 145 F.3d

601 (3d Cir.), cert. denied, 525 U.S. 1093 (1999)—which rely on Robinson in

holding that former employees are covered by Title I of the ADA. Conversely,

appellee K Mart asserts (1) that the similarity in the definitions of “employee” in

Title VII and the ADA is irrelevant; (2) that Robinson does not supersede Gonzales

because, in Gonzales, this court distinguished the ADA provision at issue from the

Title VII anti-retaliation provision; and (3) that the definition of a “qualified

individual with a disability” does contain a temporal qualifier. In support of this

last proposition K Mart puts strong reliance on Weyer v. Twentieth Century Fox

Film Corp., 198 F.3d 1104 (9th Cir. 2000), in which, subsequent to Robinson, the

Ninth Circuit expressed its belief in the continued viability and correctness of


                                           17
Gonzales.6

       Although, fundamentally, the task of statutory interpretation begins with the

text, in this case, given our prior ruling, legal precedent provides our starting point.

Thus, we assess the continuing viability of the components of the rationale in

Gonzales, turning first to the aspects that appear to stand in the greatest tension

with the Robinson analysis. With little difficulty we conclude that the part of

Gonzales wherein we decided that the meaning of the term “employees” in §

12111(4) plainly excluded former employees has been undermined by Robinson.

Having noted in Gonzales that the ADA definition of “employee” was imported

from Title VII, now that the Supreme Court has held that the term is ambiguous in

Title VII, we can no longer maintain that the term “employee” unambiguously

excludes former employees in the ADA. Moreover, we recognize that the force of

the reasoning in Robinson also undermines this court’s previous finding that the

       6
         Subsequent to the oral argument in this case the Seventh Circuit, in Morgan v. Joint
Admin. Bd., 268 F.3d 456 (7th Cir. 2001), reexamined its pre-Robinson conclusion that “retired
and other former workers are not protected by the employment provisions of the [ADA],” 268
F.3d at ___, a conclusion that it had arrived at in EEOC v. CNA Ins. Cos., 96 F.3d 1039 (7th Cir.
1996). The Seventh Circuit in Morgan reaffirmed CNA, rejecting plaintiffs’ argument that
Robinson had undercut its earlier decision.
        Additionally, K Mart urges us to rely on an unpublished decision of this court in which
we followed Gonzales. See Bass v. City of Orlando, No. 99-10867 at 3-4 (11th Cir. 1999) (per
curiam). In Bass we noted that “[w]hile other circuit and district courts have disagreed with the
holding in Gonzales, it is binding precedent within this Circuit.” We are not persuaded that Bass
provides us with much assistance with our current task, not in the least part because in Bass we
did not take note of Robinson.


                                               18
term “discriminate,” as defined in § 12112(b), plainly excludes former employees.

Once it is accepted that the use of the words “applicant or employee” does not

unambiguously exclude former employees, it is clear that the definition of the term

“discriminate”—see, e.g., §§ 12112(b)(1)-(b)(3), quoted above—lacks language

that expressly defines the temporal scope of cognizable discrimination. As

defined, it is certainly within the linguistic possibilities of the term “discriminate”

that an employer is prohibited from “limiting, segregating, or classifying” a former

employee “in a way that adversely affects the opportunities or status of such . . .

employee because of the disability of such . . . employee,” see § 12112(b)(1); that

an employer is prohibited from “participating in a contractual or other arrangement

or relationship that has the effect of subjecting a covered entity’s” former

employee to discrimination, see § 12112(b)(2); and that an employer is prohibited

from “utilizing standards, criteria, or methods of administration . . . that have the

effect of” discriminating against former employees “on the basis of disability.”

See § 12112(b)(3). In light of the Court’s emphasis in Robinson on the importance

of temporal qualifiers, we must now acknowledge that it is hard to argue that §§

12112(b)(1)-(b)(3) unambiguously contemplate discrimination encountered solely

by job applicants and/or current employees. While we agree with K Mart that the

modification of our understanding of these two terms is not necessarily dispositive,


                                           19
we do not agree that this new perspective is irrelevant to our analysis. Indeed, the

interpretation of the terms “employee” and “discriminate” formed much of the

basis for our holding in Gonzales.

      Having determined that the above components of the reasoning in Gonzales

have been undercut by Robinson, we are left to discern the viability of the

distinctions that we drew in Gonzales between general Title I discrimination

claims, on the one hand, and retaliation claims, on the other. Ultimately, we must

determine whether the fact that the ADA provision under consideration refers to

“discriminat[ion] against a qualified individual with a disability,” § 12112(a),

rather than to Title VII’s “discriminat[ion] against any of [the employer’s]

employees,” 42 U.S.C. § 2000e-3(a), renders the protections afforded to former

employees in ADA cases significantly narrower than the protection embodied in

Title VII.

      In Gonzales, we distinguished the question of the coverage of former

employees under § 12112(a) of the ADA from the question of the coverage of

employees under § 704(a) of Title VII, 42 U.S.C. § 2000e-3(a), based on what we

perceived as the peculiar necessity of allowing former employees to bring

retaliation claims. However, this approach is out of step with Robinson, in which

the Court reasoned that “[o]nce it is established that the term”—in the case at bar


                                          20
“qualified individual with a disability”—“includes former employees in some

sections, but not in others, the term standing alone is necessarily ambiguous and

each section must be analyzed to determine whether the context gives the term a

further meaning that would resolve the issue in dispute.” Robinson, 519 U.S. at

343-44. The Robinson Court determined that the word “employee” in § 2000e-

3(a) is ambiguous by looking to sections of Title VII that are not related to

retaliation in which “employee” clearly includes former employees. See Robinson,

519 U.S. at 345 (“[S]everal sections of the statute plainly contemplate that former

employees will make use of the remedial mechanisms of Title VII.”). Thus, it was

not by reference to the purpose of § 2000e-3(a) that the Robinson Court established

the ambiguity of the section. By contrast, in Gonzales we turned our attention to

the underlying purposes of the statutory provisions prematurely. Following the

reasoning of Robinson, we now recognize that language in Title I of the ADA

leaves the meaning of “qualified individual with a disability” in 42 U.S.C. §

12112(a) open to more than one interpretation. As with provisions of Title VII

other than 42 U.S.C. § 2000e-3(a), provisions of Title I other than 42 U.S.C. §

12112(a) “plainly contemplate that former employees will make use of the

remedial mechanisms of” Title I of the ADA. For example, Title I of the ADA

protects employees from discriminatory discharge and authorizes remedial action


                                          21
including reinstatement—the former a form of discrimination and the latter a

remedy that the Robinson Court associated with the coverage of former employees.

See Robinson, 519 U.S. at 342-43.7 The similarity between Title VII of the Civil

Rights Act of 1964 and Title I of the ADA in this respect strongly suggests that the

term “qualified individual with a disability,” like the term “employee,” is

ambiguous as to the coverage of former employees. We note that narrowly

construing the term “qualified individual with a disability” to exclude former

employees would eviscerate Title I’s prohibition of “discrimination against a

qualified individual with a disability because of the disability of such individual in

regard to . . . the . . . discharge of employees.” 42 U.S.C. § 12112(a). Therefore,

following Robinson, the distinction that we relied on in Gonzales between general

anti-discrimination provisions and anti-retaliation provisions, see Gonzales, 89

F.3d at 1529, can no longer be understood as dispositive of the meaning of the term

“qualified individual with a disability.”

       We now turn directly to an analysis of the comparative temporal significance



       7
        In Title VII, the prohibition against discriminatory discharge is located in the general
rule against employment discrimination, 42 U.S.C. § 2000e-3(a), and reinstatement is included
as a remedy in 42 U.S.C. §§ 2000e-5(g) and § 2000e-16(b). In the ADA, the prohibition against
discriminatory discharge is located in the general anti-discrimination provision, 42 U.S.C. §
12112(a), and reinstatement is provided as a remedy in § 12117(a), in which provision Congress
expressly adopted “the powers, remedies, and procedures set forth” in § 706 of Title VII, 42
U.S.C. 2000e-5.

                                               22
of the terms “qualified individual with a disability” and “employee.” In Gonzales,

we relied, without elaboration, on the statutory definition of “qualified individual

with a disability” in § 12111(8) (“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 holding that a

plaintiff must either hold or desire a position with the defendant-employer “at or

subsequent to the time the alleged discriminatory conduct was committed.” 89

F.3d at 1526. Recently, the Ninth Circuit provided a more elaborate analysis in

support of a similar conclusion. The Ninth Circuit opined that the use of the term

“qualified individual” and the use of the present tense forms of the verbs “hold”

and “desire” reveal congressional intent to “unambiguously exclude[] totally

disabled persons” and “to unambiguously exclude former employees.” Weyer, 198

F.3d at 1112. According to the Weyer court’s reading, the word “holds” refers

exclusively to current employees and the term “desires” refers exclusively to

applicants. Thus, the Ninth Circuit found that the plain language of Title I is “well

designed to help people get and keep jobs, not to help those no longer able to work

get disability pay.” Id. In contrast, the Second and Third Circuits have found that

the term “qualified individual with a disability,” taken in context, is not susceptible

of such an unambiguous meaning. See Ford, 145 F.3d at 601; Castellano, 142 F.3d


                                          23
at 58. Rather, the Third Circuit, in Ford, recognized a “disjunction between the

ADA’s definition of ‘qualified individual with a disability’ and the rights that the

ADA confers,” noting that former employees must be eligible to bring Title I

claims in order to effectuate Title I’s prohibition against discrimination in terms of

fringe benefits. See Ford, 145 F.3d at 605-06. Thus, the Third Circuit held that the

temporal scope of § 12111(8) is ambiguous:

      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.

Ford, 145 F.3d at 606-07; see also Castellano, 142 F.3d at 67.

      Based on our reading of Robinson, we are convinced that this court in

Gonzales and the Ninth Circuit in Weyer have found more clarity in the language

of § 12111(8) than is justified. Although, “at first blush,” the use of the words

“qualified” and “holds or desires” may appear to refer to applicants and current

employees, this initial impression does not withstand the level of scrutiny required

by Robinson, particularly in light of the fact that at least some former employees

were intended beneficiaries of Title I—that is, victims of discriminatory discharge


                                          24
and those who would benefit from reinstatement. See Robinson, 519 U.S. at 341.

With regard to the Ninth Circuit’s argument that all totally disabled persons are

unambiguously excluded from Title I as a result of the use of the term “qualified,”

see Weyer, 198 F.3d at 1112, we note that the word “qualified” is as temporally

indefinite as the word “employee.” Similarly, we are unpersuaded by that court’s

interpretation of § 12111(8) in which “hold” correlates with current employees and

“desire” correlates with applicants and the two words taken together

unambiguously exclude former employees. In Robinson, the Court, construing the

use of the words “employees or applicants” in § 704(a), disapproved of the

proposition that the inclusion of the term “applicants” coupled with the term

“employees” excludes former employees by negative inference. The Court

concluded that because “applicants” is not synonymous with “future employees,”

there is “no basis” for an assumption that Congress intentionally elected to provide

coverage for future and current employees but to deny coverage for former

employees. See Robinson, at 519 U.S. at 344-45. Consistent with this logic, we

find that the term “desire” does not unambiguously exclude former employees

when paired with the term “hold,” in part because the word “desire” is susceptible

of application to employees as well as applicants. Set against Robinson and the

evidence that Title I protects former employees from discriminatory discharge and


                                         25
provides them the remedy of reinstatement, we cannot maintain the holding that the

definition of “qualified individual with a disability” contains an unambiguous

temporal qualifier.

      We further conclude that our reliance in Gonzales on the legislative history

of the ADA does not withstand the analysis in Robinson. This court stated:

      [T]he legislative history of the ADA specifically states that the
      purpose of including the phrase “essential functions” within the QID
      definition is to “ensure that employers can continue to require that all
      applicants and employees, including those with disabilities, are able to
      perform the essential, i.e., the non-marginal functions of the job in
      question [sic].”

Gonzales, 89 F.3d at 1527 (citation omitted) (emphasis supplied). We continued,

“[t]hus, a review of both the ADA and its legislative history suggests that Congress

intended to limit the protection of Title I” to either current employees or applicants.

See id. However, the use of the words “applicants and employees” is no less

ambiguous in § 12111(8) of the ADA, or in the legislative history, than it is in the

provisions of Title VII that were analyzed by the Robinson Court. Seen in this

light, the inclusion of the phrase “essential functions” simply clarifies the content

of the word “qualified,” not its temporal significance.

      Finally, finding the term “qualified individual with a disability” ambiguous

as used in § 12112(a), we now undertake to resolve the ambiguity in a manner

consistent with the logic of Robinson. As the Robinson Court did, we look to the

                                          26
other sections of the statute that “plainly contemplate that former employees will

make use of the remedial mechanisms” of Title I of the ADA. See Robinson, 519

U.S. at 345. As mentioned above, we find particularly instructive two sub-sections

of Title I that plainly reflect congressional intent to include some former

employees within the phrase “qualified individual with a disability”—the

prohibition of discriminatory discharge based on disability in § 12112(a) and the

provision of the remedy of reinstatement in § 12117(a). Reading § 12112(a)

narrowly to exclude coverage of former employees would not only bar a whole

class of plaintiffs from access to remedies regarding the administration of post-

employment benefits, and as a result create a “perverse incentive” for employers to

interfere with the post-employment benefits of former employees, see Robinson,

519 U.S. at 346, it would also nullify those portions of Title I that protect against

discriminatory discharge and that authorize courts to order reinstatement. Against

this background, we hold that Johnson, as a former employee, is entitled to bring a

claim against his former employer under § 12112(a) of Title I of the ADA.

      We turn, now, to the substantive coverage afforded by § 12112(a).

II    Whether Differential Benefit Levels for Mental and Physical Disabilities
      in an Employer-Sponsored Long-Term Disability Plan Can Be Found to
      Violate Title I of the ADA

      The substantive issue before this court is whether a former employee can


                                          27
state a claim under Title I of the ADA based on an employer-sponsored long-term

disability insurance plan that provides more limited benefits to individuals with

mental disabilities than to those with physical disabilities. In the case at bar, K

Mart’s LTD plan provides disability benefits (payments in lieu of salary) to

employees who have been totally disabled due to mental illness for a maximum of

24 months. In contrast, the same disability benefits are available to employees

who have been totally disabled due to physical illness until age 65. The District

Court framed the issue as follows: “[T]he question for the Court is whether the

Plan’s differential treatment of mental and physical illnesses qualifies as

discrimination under the ADA.” The District Court concluded, in agreement with

a number of our sister circuits, that such differential treatment does not fall within

the meaning of the term “discrimination” under the ADA:

      [S]everal federal circuit courts have addressed and resoundingly
      rejected the argument that the ADA is violated when an employer or a
      state provides varying benefits or coverage based on the type of
      disability. See, e.g., Lewis v. Kmart Corp., 180 F.3d 166, 170 (4th Cir.
      1999) (Title I, § 102(a) of the ADA, does not require a long-term
      disability plan that is sponsored by a private employer to provide the
      same level of benefits for mental and physical disabilities); Rogers v.
      Dept. of Health and Environmental Control, 174 F.3d 431, 436 (4th
      Cir. 1999) (denying someone with a mental disability the same
      benefits as someone with a physical disability does not violate Title II
      of the ADA); Ford v. Schering-Plough Corp., 145 F.3d 601, 608 (3d
      Cir. 1998) (“ADA does not require equal coverage for every type of
      disability”), cert. denied, 119 S. Ct. 850 (1999); Parker v.
      Metropolitan Life Ins. Co., 121 F.3d 1006, 1019 (6th Cir. 1997) (en

                                          28
       banc) (same), cert. denied, --- U.S. --- , 118 S. Ct. 871 (1998); EEOC
       v. CNA Ins. Cos., 96 F.3d 1039, 1045 (7th Cir. 1996) (same). The
       Court is persuaded by the reasoning of these courts.

Thus, the District Court dismissed appellant’s claim.

       We now address the question of the permissibility of such distinctions in

LTD plans for the first time.8 The answer to this question is dependent upon the

meaning that we ascribe to three sections of the ADA, two of which—42 U.S.C. §

12112(a) (the general rule against disability-based discrimination in employment)

and 42 U.S.C. § 12112(b) (the definition of the term “discriminate” as used in Title

I)—have been introduced in Part I of this opinion. The third statutory section

important here is the so-called “safe harbor” provision, 42 U.S.C. § 12201(c),

which provides both an exemption from liability for bona fide benefit plans and a

limited exception to this exemption.9 In construing the meaning of these sections,

       8
         On a related question, in World Ins. Co. v. Branch, 156 F.3d 1142 (11th Cir. 1998), we
vacated as moot a portion of a district court decision regarding a Title III claim challenging a
health insurance provision that limited the coverage of AIDS-related medical treatments because
the policy in question had been rescinded.
        Title III sets forth a general rule against disability-based discrimination in public
accommodations:
        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. § 12182(a).
       9
        Section 12201(c) reads:

(c) Insurance
        Subchapters I through III of this chapter and title IV of this Act shall not be construed to

                                                 29
we note that remedial statutes such as the ADA are generally to be accorded broad

construction. See Steger v. Franco, Inc., 228 F.3d 889, 894 (8th Cir. 2000) (“[T]he

ADA is a remedial statute . . . and should be broadly construed to effectuate its

purpose.”); Antenor v. Osnel, 88 F.3d 925, 933 (11th Cir. 1996) (interpreting

FLSA and Migrant and Seasonal Agricultural Worker Protection Act); Jones v.

Metropolitan Atlanta Rapid Transit Authority, 681 F.2d 1376, 1380 (11th Cir.

1982) (interpreting Rehabilitation Act).

       In Part II(A)(1), we begin our analysis of whether the mental health cap in K

Mart’s LTD plan constitutes a legally cognizable form of discrimination with an

examination of the scope of the concept of discrimination prohibited by Title I of

the ADA. Thus, we look primarily to the construction of §§ 12112(a) and (b). In


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
               (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
       subchapters I and III of this chapter.

Because K Mart is an employer, we are concerned here specifically with § 12201(c)(3).

                                               30
Part II(A)(2), we consider whether contemporaneous legislative history clarifies

congressional intent regarding the scope of the anti-discrimination principle in

Title I when applied to LTD plans. Finally, in Part II(B), we turn to the

construction of the safe harbor provision in § 12201(c) to determine whether

Congress has, as a matter of law, exempted LTD plans like K Mart’s from liability

under the Act.

(A)   Determining the Scope of the Concept of Discrimination Embodied in
      Title I of the ADA

(1)   The Language of the Statute

      Whether the distinction between physical and mental disability benefits that

marks K Mart’s LTD plan is a violation of the ADA or a non-discriminatory

differentiation turns largely on divergent views of the nature of the concept of

discrimination embodied in Title I of the ADA. The District Court and a number

of courts of appeals have concluded that claims based on differential treatment of

people with mental and physical disabilities in LTD plans are not cognizable under

Title I of the ADA because the Act only requires that the disabled receive access to

the same benefits that are available to the non-disabled. In this vein, K Mart

contends that the ADA merely prohibits discrimination between the disabled and

the non-disabled. Appellant and the EEOC, as amicus, argue that the concept of

discrimination in the ADA is not so limited. It is this core disagreement to which

                                         31
we address ourselves initially. We emphasize, however, that we clarify the concept

of discrimination in Title I as a threshold matter. A finding that Title I prohibits a

wider compass of discrimination than that between the disabled and the non-

disabled merely allows us to proceed to a more specific consideration of disparate

treatment in the insurance context, and, then, to an application of the insurance safe

harbor provision, in Parts II(A)(2) and II(B) respectively.

      We begin our analysis with the wording of § 12112(a), the general anti-

discrimination provision of Title I: “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.” As the Second Circuit has observed, the language is

“capacious.” EEOC v. Staten Island Savings Bank, 207 F.3d 144, 149 (2d Cir.

2000). Section 12112(a) appears to mirror § 703(a) of Title VII, 42 U.S.C. §

2000e-2(a): “It shall be an unlawful employment practice for an employer . . . to

discriminate against any individual . . . because of such individual’s race, color,

religion, sex, or national origin.” Moreover, § 12112(b)—which includes in the

definition of discrimination a wide array of actions that “adversely affect[] the

opportunities or status of [job applicants or employees] because of . . .


                                          32
disability”—not only reinforces a broad reading of the rule against disability-based

discrimination but specifically prohibits discrimination in fringe benefits. See 42

U.S.C. § 12112(b)(2) (prohibiting employers from “participating in a contractual . .

. relationship that has the effect of subjecting a covered entity’s qualified . . .

employee with a disability to the discrimination prohibited by this subchapter (such

relationship includes a relationship with an employment or referral agency, labor

union, an organization providing fringe benefits to an employee of the covered

entity, or an organization providing training and apprenticeship programs)”)

(emphasis added).

       The EEOC, as amicus curiae, contends that the District Court erred when it

dismissed appellant’s claim, arguing that K Mart’s LTD plan is discriminatory

because “it precludes disabled individuals with mental illnesses from obtaining

benefits that are available to all other disabled individuals.” In support of its

reading of the statute, the EEOC argues that the Supreme Court in Olmstead v.

L.C., 527 U.S. 581 (1999), on review of our decision, 138 F.3d 893, made clear

that the concept of discrimination embodied in the ADA encompasses differential

treatment of one disabled individual as compared to another disabled individual.10

       10
          In Olmstead, two women who were mentally ill and also retarded had been housed in a
Georgia state psychiatric hospital. They sued state officials on the ground that the officials’
refusal to transfer them from the institutional setting to community-based treatment programs in
which they would have a greater opportunity to interact with non-disabled individuals violated

                                               33
Countering this argument, appellee K Mart asserts that its LTD plan is not

discriminatory because the inequity created by the plan exists between people with

physical disabilities and people with mental disabilities. According to K Mart,

Congress intended only to bar unequal treatment of those who are disabled as


Title II of the ADA. The plaintiffs’ treating physicians had found that their needs could be met
in community-based programs and both women desired such transfers. The District Court
granted summary judgment for the plaintiffs, ruling that the state violated Title II by confining
the plaintiffs at the state hospital. When the case came to this court, we specifically rejected
Georgia’s contention that the ADA only prohibits discrimination between the disabled and the
non-disabled. We focused, instead, on whether the confinement was “attributable to” the
plaintiffs’ disabilities:

       The State’s principal argument is that the district court’s application of [42
       U.S.C.] § 12132 and its accompanying regulations is contrary to the ADA’s
       requirement that a plaintiff prove that he or she faced discrimination “by reason of
       such disability.” § 12132. The State contends that L.C. and E.W. have not shown
       that they were denied community placements available to non-disabled
       individuals because of disability. In other words, the State argues that the ADA
       requires a comparison of the treatment of individuals with disabilities against that
       of healthy non-disabled persons. However, as the State must concede, the
       confinement of L.C. and E.W. . . . is attributable to their disabilities, thereby
       proving the very element the State argues is missing. Reduced to its essence, the
       State’s argument is that Title II of the ADA affords no protection to individuals
       with disabilities who receive public services designed only for individuals with
       disabilities.

L.C. v Olmstead, 138 F.3d 893, 896 (11th Cir. 1998), aff’d in part, vacated in part, and remanded
by 527 U.S. 581 (1999).
       We held that Title II of the ADA imposes a duty on states that provide treatment to
disabled individuals to provide such treatment in the most integrated setting appropriate to a
disabled individual’s needs. See 138 F.3d at 902. In sustaining our holding, the Supreme Court,
speaking through Justice Ginsburg, likewise concluded that the ADA demands more than like
treatment of the disabled and the non-disabled, holding that “unjustified institutional isolation of
persons with disabilities is a form of discrimination.” 527 U.S. at 600. Justices Stevens,
O’Connor, Souter, and Breyer joined the pertinent portion of the majority opinion. Justice
Kennedy concurred and Justice Breyer joined in Part I of his concurrence. Justice Thomas,
joined by the Chief Justice and Justice Scalia, dissented. For a more extended analysis of
Olmstead, see text infra at footnotes 14-17.

                                                34
compared with those who are not disabled. For such a reading of the ADA, K Mart

contends that Olmstead—which arose under Title II of the ADA, rather than under

Title I, the portion of the statute that frames the case at bar—is inapposite and that

the pertinent precedents are Traynor v. Turnage, 485 U.S. 535 (1988),11 and

Alexander v. Choate, 469 U.S. 287 (1985),12 both of which arose under the

Rehabilitation Act. As a corollary to this argument, K Mart avers that its LTD plan

       11
          Traynor involved a challenge under the Rehabilitation Act to two Veterans’
Administration (“VA”) decisions to deny extensions of time within which veterans could use
“GI Bill” educational benefits where the petitioners failed to use their benefits within the
specified time period as a result of alcoholism that was not caused by mental illness. While the
GI Bill generally requires veterans to use their educational benefits within 10 years of their
military service, Congress enacted an exception to the 10-year time period for veterans who
delayed their education because of disabilities that were not “the result of [their] own willful
misconduct.” Traynor, 485 U.S. at 545 (quoting 38 U.S.C. § 1662(a)(1) (amended and
renumbered 38 U.S.C. § 3462(a)(1)). A VA regulation created a conclusive presumption that
primary alcoholism constitutes willful misconduct. The Court, stating that “[t]here 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, held that the
Rehabilitation Act did not implicitly repeal the relevant portion of the GI Bill. The Court
concluded that “[t]hose veterans are not, in the words of § 504, denied benefits ‘solely by reason
of [their] handicap,’ but because they engaged with some degree of willfulness in the conduct
that caused them to become disabled.” Id. at 549-50.
       12
         In Alexander, Tennessee responded to projections of a budget shortfall in its Medicaid
program by reducing the number of days of hospitalization that would be covered by the State’s
plan from 20 to 14 days. Tennessee Medicaid recipients brought a class action challenging the
reduction on the ground that it would disproportionately affect the disabled. Justice Marshall,
speaking for the Court, assumed that the Rehabilitation Act reaches “at least some conduct that
has an unjustifiable disparate impact upon the disabled.” See Alexander, 469 U.S. at 299.
However, the Court rejected the notion that whenever plaintiffs are able to establish a showing of
disparate impact they have necessarily stated a claim under § 504 of the Rehabilitation Act. Id.
The Court concluded that Tennessee’s facially neutral reduction of in-patient hospitalization
coverage was not the sort of disparate impact cognizable as discrimination under the
Rehabilitation Act. To hold otherwise, the Court reasoned, would require federal grantees to
perform a complex impact analysis before taking any facially neutral actions that could affect the
disabled. See id. at 308.

                                                35
is not discriminatory because all its employees are equally eligible for coverage

under the plan.

       Notwithstanding that Olmstead arose under Title II, we find that it controls

our understanding of the concept of discrimination embodied in Title I of the ADA.

Both our decision in Olmstead and the subsequent Supreme Court decision

affirming our decision “in substantial part,”13 stand for the proposition that the

ADA demands more than impartial treatment of the disabled as compared to the

non-disabled. The gravamen of a disability-based discrimination claim is that an

individual has been treated less favorably because of her disability. On this

ground, the Supreme Court, speaking through Justice Ginsburg, declined to adopt

the narrow concept of discrimination urged in defense of the state’s action:

       The State argues that L.C. and E.W. encountered no discrimination
       “by reason of” their disabilities because they were not denied
       community placement on account of those disabilities. Nor were they
       subjected to “discrimination,” the State contends, because

       13
          The Supreme Court stated: “We affirm the Court of Appeals’ decision in substantial
part.” Olmstead, 527 U.S. at 597. The Court’s limited disagreement with our ruling focused on
the breadth of the “fundamental-alteration” defense under Title II. See id. at 603-06. The
District Court—relying on a simple comparison between the cost of care in the institutional
setting and the cost of care in a community-based setting—had rejected Georgia’s argument that
requiring a transfer of the plaintiffs would result in a fundamental alteration of the state’s
programs. Noting evidence that the transfers would require additional expenditures by the state,
we remanded the case for a reassessment of the state’s fundamental-alteration defense. See
Olmstead, 138 F.3d at 905. The Supreme Court ordered a reexamination of the fundamental-
alteration defense somewhat broader in scope than that mandated by this court. The difference
between our remand order and that of the Supreme Court does not bear on the issue, presented in
this case, of the breadth of the concept of discrimination in the ADA.

                                               36
       “‘discrimination’ necessarily requires uneven treatment of similarly
       situated individuals,” and L.C. and E.W. had identified no comparison
       class, i.e., no similarly situated individuals given preferential
       treatment. We are satisfied that Congress had a more comprehensive
       view of the concept of discrimination advanced in the ADA.

See Olmstead, 527 U.S. at 598.14

       Justice Thomas, joined by the Chief Justice and Justice Scalia, dissented in

Olmstead. But the rationale of the dissent adds further support for the conclusion

that Title I of the ADA—like Title II, as construed by the Olmstead

majority—prohibits discrimination among the protected class of disabled persons.

In challenging the majority’s construction of Title II, the dissent argued that the

“traditional” concept of discrimination does not encompass “disparate treatment

among members of the same protected class.” Olmstead, 527 U.S. at 616. The

dissent invoked Alexander v. Choate and Traynor v. Turnage in support of its view

that Title II should be read in the light of this “traditional” understanding.

However, the dissent acknowledged that Title I may be violated by differential

treatment of persons within the protected category. Justice Thomas reasoned that

Congress advertently adopted a non-traditional concept of “discrimination” in Title

       14
         The Court supported its rejection of the proposition that discrimination requires uneven
treatment of disabled and non-disabled individuals by citing cases construing the ADEA and
Title VII of the 1964 Civil Rights Act to prohibit discrimination between members of a protected
class. See id. at 598 n.10 (citing O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308,
312 (1996); Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 76 (1998); Jefferies v.
Harris Cty. Community Action Ass’n., 615 F.2d 1025, 1032 (5th Cir. 1980)).

                                               37
I:

       Elsewhere in the ADA, Congress chose to alter the traditional
       definition of discrimination. Title I of the ADA, § 12112(b)(1),
       defines discrimination to include “limiting, segregating, or classifying
       a job applicant or employee in a way that adversely affects the
       opportunities or status of such applicant or employee.” . . . The
       majority’s definition of discrimination—although not specifically
       delineated—substantially imports the definition of Title I into Title II
       by necessarily assuming that it is sufficient to focus exclusively on
       members of one particular group. Under this view, discrimination
       occurs when some members of a protected group are treated
       differently from other members of that same group.

Id. at 622-23.15

       In sum, the Supreme Court’s construction of the ADA in Olmstead leads us

to the conclusion that K Mart’s LTD plan—which differentiates between

individuals who are totally disabled due to a mental disability and individuals who

are totally disabled due to a physical disability because of the given individual’s

type of disability—appears prima facie to distinguish among beneficiaries on a




       15
          Justice Thomas pointed to the legislation enacted to overturn the construction of Title
VII adopted in Ward’s Cove Packing Co., Inc. v. Atonio, 490 U.S. 642 (1989) (holding that once
a plaintiff has established that an employment practice results in a disparate impact, while the
employer carries the burden of producing evidence of a business justification for the challenged
practice, the burden of demonstrating the lack of a business justification remains with the
plaintiff), as an illustration of “the principle that a departure from the traditional understanding
of discrimination requires congressional action.” 527 U.S. at 618 n.3 (citing the Civil Rights Act
of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (1991)). In the view of the Olmstead dissenters,
Title I of the ADA manifests such congressional action.

                                                38
basis that constitutes a form of discrimination contravening Title I of the ADA.16

(2)    The Legislative History of the ADA

       The next step in our analysis is to address the question whether—as some

circuits have concluded—the ADA’s legislative history should be read as

insulating from liability what otherwise would seem to be discrimination.17 The

       16
          Prior to the Supreme Court’s decision in Olmstead, a number of circuits had dismissed
cognate claims challenging mental-health caps based on the rationale that the ADA “prohibits
[only] discrimination between the disabled and the non-disabled.” Parker, 121 F.3d at 1015-16
Title III). See also Lewis, 180 F.3d at 171-72 (Title I); Ford, 145 F.3d at 601 (Titles I and III);
Rogers, 174 F.3d at 431 (Title II); CNA Ins. Cos., 96 F.3d at 1039 (Title I). We conclude that
these cases are undercut by Olmstead.
         After the Court decided Olmstead, the Ninth Circuit dismissed a cognate claim on the
authority of Alexander and Traynor, finding Olmstead to be inapposite. See Weyer, 198 F.3d at
1117-18 (Titles I and III). We respectfully differ with our Ninth Circuit colleagues. Because we
understand Olmstead to establish that the ADA encompasses a prohibition against discrimination
among members of the protected class, we do not agree that the general prohibition against
discrimination in Title I fails to reach the differentiation at issue here. But see Kimber v.
Thiokol Corp., 196 F.3d 1092, 1101-02 (10th Cir. 1999) (dismissing a Title I claim challenging a
mental-health cap on disability benefits without discussing Olmstead and in reliance on cases
antedating Olmstead).
         We note that the Second Circuit, reading Olmstead much as we do, has rejected the “view
that [the] ADA requires no more than evenhanded treatment between the disabled and non-
disabled”; the ADA, according to the Second Circuit, “generally affords ‘individualized
protection’ against illegal conduct within its reach.” See EEOC v. Staten Island Savings Bank,
207 F.3d 144, 151 (2d Cir. 2000) (Title I). Nevertheless, we are in disagreement with the
Second Circuit’s conclusion that the general prohibition against discrimination should be read
narrowly with respect to insurance coverage. See id. We discuss the legislative history of the
ADA, on which the Second Circuit relied for that conclusion, infra Part II(A)(2). Cf. EEOC v.
Aramark, 208 F.3d 266, 268 (D.C. Cir. 2000) (expressing no opinion as to whether a 24-month
mental health cap in an LTD plan violated Titles I and III, but affirming the District Court’s
grant of summary judgment in favor of defendants on the ground that a plan that was adopted
prior to the passage of the ADA was protected by the ADA’s safe harbor provision, a portion of
the statute discussed infra Part II(B)).
       17
         See Staten Island Savings Bank, 207 F.3d at 150. Two cases decided prior to Olmstead
also found support for dismissal in the legislative history. See Ford, 145 F.3d at 610 (“The cases
finding no violation of the ADA by a disparity in benefits between mental and physical

                                                39
legislative history relevant to our discussion consists of three quite similar Reports

issued in 1989 and 1990—one from the Senate Labor and Human Resources

Committee, one from the House Judiciary Committee, and another from the House

Education and Labor Committee. The pertinent portions of these reports

articulated the position that it is permissible for employer-provided health

insurance plans to limit coverage of certain “procedures or treatments” even if

doing so would have a disproportionate impact on people with disabilities, as long

as all employees have equal access to the health insurance plan in question. The

Report of the Senate Labor and Human Resources Committee put the matter this

way:

       [E]mployers 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 for 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.



disabilities are supported by the ADA’s legislative history.”); Rogers, 174 F.3d at 434-35.

                                               40
S. Rep. No. 101-116, at 29 (1989).18

       The Committee Reports suggest no intention to interfere with insurance

       18
            Similarly, the House Education and Labor Committee Report stated:

       [E]mployers 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 number of blood transfusions per
       year, a hemophiliac who exceeds this treatment limit may not be denied coverage
       for other conditions, such as for a broken leg or for heart surgery, because of the
       existence of the hemophilia. 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.

H.R. Rep. 101-485(II), at 59 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 341.

       The House Judiciary Committee Report used nearly identical language:

       [E]mployers may not deny health insurance coverage completely to an individual
       based on the person’s diagnosis or disability. For example, it is permissible for an
       employer to offer insurance policies that limit coverage for certain procedures or
       treatments (e.g., a limit on the extent of kidneys dialysis or whether dialysis will
       be covered at all, or a limit on the amount of blood transfusions or whether
       transfusions will be covered). It would not be permissible, however, to deny
       coverage to individuals, such as persons with kidney disease or hemophilia, who
       are affected by these limits on coverage for procedures or treatments, for other
       procedures or treatments connected with their disability. It would also not be
       permissible to deny coverage to such individuals for other conditions not
       connected with these limitations on coverage, such as treatment for a broken leg
       or heart surgery. While limitation may be placed on reimbursements for a
       procedure or the types of drugs or procedures covered, that limitation must apply
       to all persons, with or without disabilities. Persons with disabilities must have
       equal access to the health insurance coverage that is provided by the employer to
       all employees.

H.R. Rep. 101-485(III), at 38 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 460-61 (footnote
omitted).


                                                41
arrangements which set caps on “procedures or treatments” that apply to persons

with or without disabilities. But we are here dealing not with a limitation on

procedures and treatments equally available to all but a limitation on compensation

in lieu of salary which is expressly contingent on what kind of disability has

caused a former employee to lose his job. Giving the legislative reports their full

weight, the type of differentiation that they protect is not the type of differentiation

at issue in this case. The statement “it is permissible for an employer to offer

insurance policies that limit coverage for certain procedures or treatments,” S. Rep.

No. 101-116, at 29, is disability-neutral. It is reasonable to assume that the large

majority of employees or former employees receiving employer-provided

“procedures or treatments”—whether x-rays, or blood transfusions, or physical

therapy, or mental health therapy—are neither physically nor mentally disabled. In

contrast, there is no disability-neutral parallel that reflects the distinction at work in

K Mart’s LTD plan. Instead of limiting insurance coverage for a particular type of

procedure or treatment, the K Mart plan, on its face, limits disability-benefits-in-

lieu-of-salary for those with a specified type of disability. The parties in the case at

bar are concerned with a single benefit—payments intended to partially replace the

salary that disabled individuals can no longer earn—rather than coverage for one of




                                           42
a myriad potential medical procedures or treatments.19 Denial of that benefit on the

express ground that the claimant is mentally disabled is discrimination of a sort

prohibited by § 12112(a)—unless the ADA’s safe harbor provision exempts such

discrimination from liability. To the impact of the safe harbor provision we now

turn.

(B)     The Safe Harbor Provision

        To this point in the analysis, our focus has been on ascertaining the meaning

and scope of the general prohibition against disability-based discrimination

contained in § 12112(a). We now turn to the construction of § 12201(c), which

provides a safe harbor exempting an employer from liability for a bona fide benefit

plan, provided the safe harbor is not used as a “subterfuge to evade the purposes

of” the ADA. Section 12201(c) reads, in pertinent part:

        Subchapters I through III of this chapter and title IV of this Act shall
        not be construed to prohibit or restrict . . .

        (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 subchapters I and III of this chapter.


        19
        Nothing in this opinion should be construed to mean that an employer cannot tailor the
treatment-related services offered in a benefits package to the particular needs of different
subgroups of the disabled.

                                              43
       In the case at bar, the disputed issue regarding the safe harbor provision is

whether K Mart’s adoption of the mental health cap constitutes a use of the safe

harbor provision as “a subterfuge to evade the purposes” of Title I. Because we are

reviewing the District Court’s grant of a motion to dismiss, we must determine

whether we can decide this issue as a matter of law on the basis of the allegations

contained in the complaint.

       Appellant and the EEOC contend that the safe harbor provision, § 12201(c),

is used as a “subterfuge” when a disability-based distinction in a benefit plan is not

justified by increased costs demonstrably attributable to the disability.20 Therefore,

the EEOC argues that this case must be remanded to the District Court for a

hearing at which K Mart would have the burden of demonstrating that, taking into

account the totality of the circumstances, the mental health cap is “justified by the



       20
              Under the ADA, a person with a disability cannot be denied
              insurance or be subject to different terms or conditions of
              insurance based on disability alone, if the disability does not pose
              increased risks . . . . [W]hile a plan which limits certain kinds of
              coverage based on classification of risk would be allowed under
              this section, the plan may not refuse to insure, or refuse to continue
              to insure, or limit the amount, extent, or kind of coverage available
              to an individual, or charge a different rate for the same coverage
              solely because of a physical or mental impairment, except where
              the refusal, limitation, or rate differential is based on sound
              actuarial principles or is related to actual or reasonably anticipated
              experience.

H.R. Rep. 101-485(II), 1990 U.S.C.C.A.N. 303, 419-20.

                                               44
risks or costs associated with” mental health disabilities. Countering this

argument, K Mart relies on Public Employees Retirement System of Ohio v. Betts,

492 U.S. 158 (1989), as support for the assertion that the burden is on appellant to

prove that K Mart used the safe harbor provision as a “subterfuge” when

implementing the mental health cap by showing that K Mart specifically intended

to discriminate on the basis of disability, see Betts, 492 U.S. at 171, and further,

that the discrimination was designed to affect the non-fringe-benefit aspects of the

employment relationship. See id. at 177. Along these lines, K Mart avers that it is

exempt from liability as a matter of law with respect to its LTD plan because

plaintiff failed to allege that K Mart used the LTD plan to discriminate in any non-

fringe-benefit aspect of its employment relationship with Johnson. The common

thread between these two arguments is that both sides discuss Betts, though to

different effect.

       In Betts, the Supreme Court construed the meaning of the word “subterfuge”

as it appeared in an analogous provision of the ADEA. See also United Air Lines,

Inc. v. McMann, 434 U.S. 192 (1977). At the time Betts was decided, § 4(f)(2) of

the ADEA, 29 U.S.C. § 623(f)(2), provided that:

       It shall not be unlawful for an employer, employment agency, or labor
       organization . . .

       (2) to observe the terms of a bona fide seniority system or any bona

                                          45
       fide employee benefit plan such as a retirement, pension, or insurance
       plan, which is not a subterfuge to evade the purposes of this chapter,
       except that no such employee benefit plan shall excuse the failure to
       hire any individual, and no such seniority system or employee benefit
       plan shall require or permit the involuntary retirement of any
       individual specified by section 631(a) of this title because of the age
       of such individual[.]

29 U.S.C. § 623(f)(2) (1988) (emphasis added).21 In Betts and McMann, the

Court’s construction of § 4(f)(2) was grounded, in part, on a determination of the

ordinary meaning of the word “subterfuge”: “[W]e stated in McMann that

‘subterfuge’ means ‘a scheme, plan, stratagem, or artifice of evasion,’ which in the

context of § 4(f)(2), connotes a specific ‘intent . . . to evade a statutory

requirement.’ The term thus includes a subjective element that the regulation’s

objective cost-justification requirement fails to acknowledge.” Betts, 492 U.S. at

171 (quoting McMann, 434 U.S. at 203). As a result of the Court’s interpretation

that a subterfuge necessarily entails a specific intent to evade the purposes of the

statute in question, the McMann Court held, and the Betts Court reaffirmed, that no

benefit plan instituted prior to the passage of the ADEA could be considered a

subterfuge. See id. at 168.


       21
         When McMann was decided, § 4(f)(2) did not include the phrase, “and no such
seniority system or employee benefit plan shall require or permit the involuntary retirement of
any individual specified by section 631(a) of this title because of the age of such individual.”
Congress added this language in 1978, in response to the McMann opinion. See, e.g., H.R. Conf.
Rep. No. 95-950, at 8 (1978).

                                              46
      The EEOC and appellant argue that the reasoning in Betts is not transferable

to the ADA because Congress wrote the subterfuge exception in § 12201(c) in such

a way as to reject the Betts construction of the phrase “subterfuge to evade the

purposes” of the Act. In this regard, appellant and amicus rely on both statutory

language and legislative history. When drafting § 12201(c), Congress adopted a

different phrasing of the “subterfuge” exception to the safe harbor than it had in the

former § 4(f)(2) of the ADEA. The ADA provides that the safe harbor provision

“shall not be used as a subterfuge to evade the purposes of” the Act, whereas the

ADEA provided that the safe harbor provision only exempted a plan “which is not

a subterfuge to evade the purposes of this chapter” of the ADEA. Appellant and

the EEOC assert that the change in focus from whether a policy is a subterfuge, to

whether the safe harbor is used as a subterfuge, demonstrates that an employer may

be understood to use the safe harbor as a subterfuge when it continues to

implement pre-Act terms of a plan. Appellant and the EEOC also point to

contemporaneous legislative history that lends support to such a construction. See

H.R. Rep. 101-485(II), 1990 U.S.C.C.A.N. 303, 419 (“[T]he decision to include

this section may not be used to evade the protections of [the Act], regardless of the

date an insurance plan or employer benefit plan was adopted.”). Additionally,

appellant and the EEOC rely on the legislative history for the proposition that the


                                         47
safe harbor provision is “used as a subterfuge” when a plan contains a disability-

based distinction “except where the refusal, limitation, or rate differential is based

on sound actuarial principles or is related to actual or reasonably anticipated

experience.” Id. at 420.

       We find the difference in the wording of § 12201(c) of the ADA as

compared to the former § 4(f)(2) of the ADEA to be insufficient to overcome the

Supreme Court’s clear statement in Betts that the phrase “subterfuge to evade the

purposes of” the Act connotes that the employer must have had a specific intent to

evade the purposes of the statute.22 Additionally, the reliance by the EEOC and

appellant on the legislative history is contrary to the reasoning in Betts wherein the

Court expressly rejected a reliance on legislative history with regard to whether or

not the phrase “subterfuge to evade” mandated a finding of specific intent on the

ground that the ordinary meaning of the phrase unambiguously required a showing


       22
         We must presume that Congress was well aware of the Court’s construction of the term
“subterfuge” in the 1989 Betts decision when it enacted the ADA in July, 1990. In response to
Betts, Congress amended § 4(f)(2) in October, 1990, thereby removing the term “subterfuge”
from that provision and placing the burden on the employer to prove that its actions are “not
intended to evade the purposes of this chapter,” in addition to making other changes. See Older
Workers Benefit Protection Act of 1990, Pub. L. 101-433 (1990). Thus, Congress demonstrated
that when it wanted to avoid the mandates of McMann and Betts it was fully capable of doing so
by selecting different language. See Aramark, 208 F.3d at 272 (“Congress’s addition of the
words ‘used as’ is simply too thin a reed on which to support appellants’ claim that Congress
intended to overrule Betts, remove pre-Act plans from safe harbor protection, and give life to
EEOC’s uniformly rejected actuarial justification theory.”).


                                              48
of intent. See Betts, 492 U.S. at 172. We, therefore, agree with a number of our

sister circuits that Betts requires us to read the exception to the ADA safe harbor

provision to include a showing of specific intent to discriminate. See EEOC v.

Aramark, 208 F.3d at 271; Fitts v. Federal National Mortgage Association, 236

F.3d 1 (D.C. Cir. 2001) (following Aramark); Ford, 145 F.3d at 611; Leonard F. v.

Israel Discount Bank of New York, 199 F.3d 99, 105 (2d Cir. 1999) (Title III of

the ADA).

      We conclude that McMann and Betts make clear that if K Mart adopted the

policy of providing differing long-term disability benefits for mental and physical

disabilities prior to the enactment of the ADA, K Mart could not be found to be

using § 12201(c) as a subterfuge to evade the purposes of the Act. If, however, K

Mart adopted the mental health cap following the passage of the ADA, then

appellant, in order to impose liability on K Mart, would have to establish that K

Mart, in setting a 24-month cap on mental health disability benefits, specifically

intended to use § 12201(c) as a subterfuge to evade the purposes of Title I.

      Whereas K Mart correctly states that the Betts Court held that a benefit plan

is not a subterfuge under the ADEA’s safe harbor provision unless the plaintiff can

show that the employer had a specific intent to interfere with non-fringe-benefit

aspects of employment, that limitation on the categories of benefits addressed by


                                          49
the ADEA is not controlling here. While the specific intent requirement in Betts

flows from the ordinary meaning of the phrase “subterfuge to evade the purposes

[of the Act],” the requirement in Betts that discrimination affect a non-fringe

benefit relates to elements of the ADEA’s statutory context that are not shared with

the ADA. Specifically, the Court held in Betts that, in order to be a subterfuge, a

plan must discriminate in a non-fringe-benefit aspect of employment because the

Court found that fringe benefit plans were not included in the ADEA’s general

prohibition against age discrimination, codified at 29 U.S.C. § 623(a)(1). See

Betts, 492 U.S. at 177 (“[U]nder this construction of the statute, Congress left the

employee benefit battle for another day, and legislated only as to hiring and firing,

wages and salaries, and other non-fringe-benefit terms and conditions of

employment.”). Thus, the ADEA’s focus on non-fringe-benefit aspects of

employment does not square with the ADA’s express prohibition against

disability-based discrimination in fringe benefits plans contained in § 12112(b)(2)

of Title I. See Gonzales, 89 F.3d at 1526 (“It is . . . undisputed that fringe benefits

. . . are one set of the ‘terms, conditions, and privileges of employment’ protected

from unlawful discrimination under the ADA.”). Therefore, we conclude that in

the context of the ADA the subterfuge exception to the safe harbor provision

requires that a plaintiff show that the employer specifically intended to


                                          50
discriminate based on disability, whether the discrimination was aimed at fringe-

benefit or non-fringe-benefit aspects of the employment relationship.23

                                      CONCLUSION

       For the reasons stated, we conclude that the District Court erred in granting

K Mart’s motion to dismiss. Accordingly, the judgment of the District Court is

reversed and the cause remanded for further proceedings consistent with this

opinion.

       REVERSED.




       23
          Evidence (assuming arguendo that there is such) establishing that K Mart, in fashioning
its limitation on long-term disability benefits for mentally disabled persons, did not rely on an
objective cost-justification approach, would not of itself suffice to carry Johnson’s burden of
establishing that K Mart specifically intended to evade the ADA’s anti-discrimination mandate,
but such evidence might well be relevant.

                                               51
BARKETT, Circuit Judge, concurring:

      I concur in Judge Pollak’s comprehensive opinion and only write to explain

why I believe Robinson v. Shell Oil Company, 519 U.S. 337 (1997) clearly

abrogates Gonzales v. Garner Food Services, Incorporated, 89 F.3d 1523 (11th Cir.

1996).

      A basic proposition in federal law is that an intervening decision of the

Supreme Court subjects a prior decision of this Court to reconsideration. See

Chambers v. Thompson, 150 F.3d 1324, 1326 (11th Cir. 1997) (“We are bound to

follow a prior panel or en banc holding, except where that holding has been

overruled or undermined to the point of abrogation by a subsequent en banc or

Supreme Court decision.”) (emphasis supplied); Davis v. Singletary, 119 F.3d

1471, 1482 (11th Cir. 1997) (“[t]o the extent of any inconsistency between our

[prior opinions’] pronouncements and the Supreme Court’s supervening ones, of

course, we are required to heed those of the Supreme Court.”); United States v.

Hogan, 986 F.2d 1364, 1369 (11th Cir.1993) (recognizing same); Lufkin v.

McCallum, 956 F.2d 1104, 1107 (11th Cir. 1992) (recognizing same).

      On review of Gonzales and Robinson, it is clear that there is more than a

minor “inconsistency” between the two cases. As Judge Pollak explains, Robinson

explicitly invalidates several of the propositions that informed the Gonzales


                                         52
Court’s conclusion that Title I of the Americans with Disabilities Act (“ADA”), 42

U.S.C. § 12101 et. seq., only covers former employees. In both Gonzales and

Robinson, the basic question presented was whether the term “employee” in an

employment discrimination statute only refers to current employees or includes

former employees.1 In both cases, the employer argued that the plain definition of

the term “employee” in an employment discrimination statute unambiguously

refers to current employees. Robinson, 518 U.S. at 339; Gonzales, 89 F.3d at

1526. The Court in Gonzales agreed, holding that the term “employee” in Title I

was plain and unambiguous, and only referred to current employees. Gonzales, 89

F.3d at 1526 (interpreting 42 U.S.C. § 12111(4)). However, the Supreme Court in

Robinson rejected the notion that the term “employee,” standing alone, is

unambiguous, explaining that the term “employee” “lacks any temporal qualifier

and is consistent with either current or past employment.” Robinson, 519 U.S. at

342 (discussing 42 U.S.C. § 2000e -3(a)). The Supreme Court indicated that courts


       1
          Some would distinguish Robinson because the case concerns Title VII’s retaliation
provisions and therefore, it is argued, it cannot supply guidance on interpreting the ADA’s terms.
(Dis. at 2). However, as Judge Anderson explained in Gonzales, it is clear that Congress
intended for Title VII’s provisions and the ADA’s provisions to be interpreted similarly, as the
ADA in many cases borrows terms from Title VII (among them the term “employee” discussed
above), the statute’s legislative history explicitly indicates that the ADA incorporates Title VII’s
definition for many terms it uses (including “employer,” and “employee,”) and the EEOC’s
interpretive guidelines on the ADA indicate that the analysis performed under the statute is
similar to the analysis conducted under Title VII. See Gonzales, 89 F.3d at 1531-32 ( Anderson,
dissenting).

                                                53
should not draw unnecessary meaning from the fact that the term “employee” is

generally defined in an employment discrimination statute as a “person employed

by an employer,” explaining that the word “employed” in this context “is not . . .

limited in its possible meanings, and could just as easily be read to mean ‘was

employed’” by an employer. Id. at 342 (emphasis in original).

      The Supreme Court applied the same logic to interpret the phrase “applicants

or employees” as it relates to the prohibition against discrimination in the

employment context. Robinson, 519 U.S. at 344 (interpreting 42 U.S.C.§

2000e(3)(a)). The Robinson Court explained that “[t]he use of the term

‘applicants’ [in an employment discrimination statute] does not serve to confine,

by negative inference, the temporal scope of the term ‘employees.’ . . . [ as this]

argument rests on the incorrect premise that the term ‘applicants’ is equivalent to

the phrase ‘future employees.’” Id. at 344-45. The Robinson Court further

described the analytic flaw that gives rise to this view, explaining:

      the term “applicants” would seem to cover many persons who will not
      become employees. Unsuccessful applicants or those who turn down
      a job offer, for example, would have been applicants, but not future
      employees. And the term fails to cover certain future employees who
      may be offered and will accept jobs without having to apply for those
      jobs. Because the term “applicants” in § 704(a) is not synonymous
      with the phrase “future employees,” there is no basis for engaging in
      the further (and questionable) negative inference that inclusion of the
      term ‘applicants’ demonstrates intentional exclusion of former
      employees.

                                          54
      This ruling also severely undercuts the Gonzales Court’s interpretation of

Title I, as the Gonzales Court concluded that the plain meaning of the term

“applicants and employees” established that Title I of the ADA only covered

current and future employees. See Gonzales, 89 F.3d at 1527 (interpreting 42

U.S.C. § 12112(b)).

      As shown above, the Robinson Court, analyzed the same terms we examined

in Gonzales and found these terms to be ambiguous. The only remaining basis for

the Gonzales Court’s ruling was its view that the phrase “qualified individual with

a disability” in 42 U.S.C. § 12111(8) could only be interpreted to mean current

employees, because the provision refers to persons who “hold[] or desire[]” a

position with an employer. Gonzales, 89 F.3d at 1526. However this proposition

is also undercut by the Robinson case, as the Robinson Court established that

courts may not interpret a provision in an employment discrimination statute to

exclude former employees unless they can identify language in the provision that

functions as a clear and explicit “temporal qualifier.” Robinson, 518 U.S. at 343.

The Supreme Court explained that statutory language serves as a “temporal

qualifier” when it “specif[ies] the time frame in which the employment relationship

[at issue] must exist.” Id. at 342, n.2. The Robinson Court identified two kinds

of language that meet this requirement. It explained that some statutory provisions


                                         55
will prohibit behavior or offer remedies which, by definition, only pertain to a

certain class of employees. See id. at 343 (explaining that 42 U.S.C. § 2000e-

16(b), which prohibits discrimination in advancement, and 42 U.S.C. § 2000e-2(h),

which prohibits discrimination in salary payments or promotions, both, by

definition, only cover current employees). Also, the Robinson Court noted that

some provisions will specifically delineate the time frame to which they apply, and

thereby limit the scope of their coverage. Id. at 343, n.2 (discussing 42 U.S.C. §

2000e(b), which provides that Title VII regulates any employer “who has fifteen

or more employees for each working day in each of twenty or more calendar weeks

in the current or preceding calendar year”).

      When viewed under this standard, it is clear that the phrase “holds or

desires” in § 12111(8) is not a “temporal qualifier.” First, the phrase does not

prohibit any time-specific employer action or provide for time-specific remedies

that only pertain to a certain class of employees. Second, the phrase does not

contain any language that explicitly refers to a particular time frame. Certainly, the

“holds and desires” language in § 12111(8) could support the inference that

Congress intended for Title I to cover only applicants (those who “desire”

positions) and current employees (those who “hold” positions). However, this

language could also be interpreted to include former employees who still “desire”


                                         56
to work for their respective employers, but whose disabilities bar them from doing

so unless they are provided with the appropriate accommodation. The basic fact of

the matter is, the phrase “holds or desires” is time-neutral and ambiguous, and

therefore § 12111(8) does not bar former employees from invoking Title I’s

protection.

      Having concluded that the aforementioned Title I provisions do not clearly

and unambiguously define the class of employees protected under the statute, our

remaining task is to determine whether Title I provides a consistent definition for

covered employees in its remaining provisions and, for this reason, has a clear and

unambiguous meaning. See Robinson, 519 U.S. at 341 (“[T]he plainness or

ambiguity of statutory language is determined by reference to the language itself,

the specific context in which the language is used, and the broader context of the

statute as a whole.”)

      Using this framework, it is clear that other provisions in Title I rebut the

inference that the statute only protects current and future employees. Specifically,

42 U.S.C. § 12112(a), which prohibits discriminatory discharge, and 42 U.S.C. §

12117(a), which provides for the remedy of reinstatement, by definition pertain to

former employees. Also, Title I’s general definition of discrimination, 42 U.S.C. §

12112(b), suggests that Title I protects former employees because this provision


                                          57
prohibits employers from administering programs that discriminate against the

disabled in providing “fringe benefits,” and when interpreting other employment

discrimination statutes courts interpret the term “fringe benefits” to include

retirement and other post-employment medical benefits. See, e.g., Dobbs v. City

of Atlanta Georgia, 606 F.2d 557 (5th Cir 1979) (Title VII suit alleging that an

employer’s racially discriminatory personnel practices prevented Black employees

from accessing high quality pension plans). The aforementioned provisions make

it clear that Congress designed Title I so that, in various sections, it offers

protection to different groups of employees, in some cases offering protection and

remedies to current employees, and in others extending its protection to former

employees, and potential future employees (“applicants”). Therefore, because the

statute does not provide a “coherent and consistent” definition of covered

employees across its various sections, the Gonzales Court erred in deciding that

Title I’s “plain meaning” prevented former employees from invoking its

protections.

      In short, there is no doubt that the Robinson Court’s decision invalidates

Gonzales. The terms the Gonzales Court concluded had a “plain and ordinary

meaning” instead were found to be ambiguous by the Supreme Court. Moreover,

Robinson stands for the proposition that the Court’s decision to deny an


                                           58
employment discrimination statute’s protection to a class of employees should turn

on language that serves as an explicit temporal qualifier. Therefore, Robinson’s

rationale and holding abrogate the rationale and holding of Gonzales. Under our

precedent, such a conclusion requires that we follow the Supreme Court’s

intervening law.

      Certainly, it is easier to conclude that a Supreme Court decision invalidates

an Eleventh Circuit decision when the Supreme Court expressly overrules a

particular case, or baldly criticizes the precise proposition that is the basis for an

Eleventh Circuit panel’s ruling. See, e.g., Lufkin, 956 F.2d at 1107 (recognizing

that a Supreme Court case had invalidated the Eleventh Circuit’s retroactivity rule

and overruling contrary Eleventh Circuit authority “in order to give full effect to

[an] intervening decision of the Supreme Court”); Cotrell v. Caldwell, 85 F.3d

1480, 1485 (11th Cir. 1996) ( recognizing that a Supreme Court decision had

invalidated the line of Eleventh Circuit cases holding that officers could not appeal

interlocutory orders denying them qualified immunity when the courts involved

had ruled that material issues of fact were in dispute). However, we are also

compelled to overrule our precedent when the rationale the Supreme Court uses in

a intervening case directly contradicts the analysis that this Court has used in a

related area, and establishes that this Court’s current rule is wrong. See, e.g.,


                                           59
Footman v. Singletary, 978 F.2d 1207, 1210-11 (11th Cir. 1992) (overruling

Eleventh Circuit cases that allowed habeas petitioners to raise additional

ineffective assistance of counsel claims not raised in state court because the policy

rationale in Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992), a decision on

evidentiary hearings in habeas cases, indicated that the Supreme Court disfavors

allowing petitioners to raise new federal habeas claims not raised in state court);

Hogan, 986 F.2d at 1370 (11th Cir. 1993) (overruling Eleventh Circuit precedent

applying a more liberal standard of the clear error test to review a trial court’s

determination that the defendant was competent to stand trial because,

Demosthenes v. Baal, 495 U.S. 731 (1990), a Supreme Court case discussing a

defendant’s competence to waive habeas proceedings, suggested that a more

stringent standard was required).

      Judge Carnes cites a number of cases to support his view that, absent an

express statement from the Supreme Court that Gonzales is overruled, the case is

still good law. However no case cited, with the exception of Morris v. City of

West Palm Beach 194 F.3d 1203 (11th Cir. 1999), involved an intervening

Supreme Court case which undercut the basis for an earlier panel’s ruling. For

example, in United States v. Chubbuck, 252 F.3d 1300 (11th Cir. 2001), this Court

declined to overrule an Eleventh Circuit panel’s interpretation of the term


                                          60
“conviction” in light of an intervening Florida Supreme Court decision. In Lapides

v. Board of Regents, 251 F.3d 1372 (11th Cir. 2001), this Court declined to

overrule an Eleventh Circuit decision based on arguably conflicting Eleventh

Circuit authority and a Supreme Court concurring opinion. Also, in United States

v. Smith 122 F.3d 1355 (11th Cir. 1997), this Court refused to change its

interpretation of the federal expert witness rules because its ruling was consistent

with Supreme Court precedent, and because it did not find persuasive the

conflicting authority the petitioner offered from other Courts of Appeal.

      Saxton v. SCF Industries, 239 F.2d 1209 (11th Cir. 2001) is another case in

which no conflicting Supreme Court decision was at issue; this Court merely

recognized that a prior panel had failed to acknowledge the existence of the 1991

Amendments to Rule 15(c), and it applied the prior panel’s rule and recommended

en banc review. Similarly, in Turner v. Beneficial Corporation, 236 F.3d 1023

(11th Cir. 2001), a panel of this Court recognized that a prior panel had

misinterpreted the requirements of the Truth in Lending Act, but the panel

faithfully applied the questionable rule and recommended en banc review. See

also United States v. Steele, 117 F.3d 1231 (11th Cir. 1997) (recognizing that a

prior panel apparently had misunderstood the requirements for indicting a

physician under 28 U.S.C. § 855(a)(1) but applying the prior panel’s rule and


                                          61
recommending en banc review).

       The only case Judge Carnes discusses that considered the effect of an

intervening, related Supreme Court decision on an earlier Eleventh Circuit decision

is Morris v. City of West Palm Beach 194 F.3d at 1207 n.6.2 In Morris, this Court

recognized that Farrar v. Hobby, 506 U.S. 103 (1992), cast doubt on the viability

of the “catalyst test,” a court-created modification of the attorneys’ fee provisions

under 42 U.S.C. § 1988. Although § 1988 only authorizes attorneys’ fees for

prevailing parties, several courts had used the “catalyst test” to award plaintiffs

attorneys’ fees in civil right cases despite the fact that they did not prevail at trial,

when it was clear that the plaintiffs’ lawsuits had pressured the defendants into

functionally providing the relief that was the subject of the plaintiffs’ claims. The

rationale behind the catalyst test is that § 1988 was designed to compensate any

       2
         I recognize that Judge Carnes cites most of the above cases for the proposition that
courts “are not at liberty to disregard binding case law that is closely on point and has been only
weakened, rather than directly overruled, by the Supreme Court.” See, e.g., Morris, 194 F.3d at
1207 n.6 (citing Fla. League of Professional Lobbyists v. Meggs, 87 F.3d 457, 462 (11th Cir.
1996)); Lapides, 251 F.3d 1378 (same). This quotation is based on the Supreme Court’s ruling
in Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 482-86 (1989).
See Fla. League of Professional Lobbyists, 87 F.3d at 462 (citing Rodriguez). On review,
however, the Rodriguez case merely stands for the proposition that when a Court of Appeals is
faced with two Supreme Court cases that apply to the case at bar, the appeals court should follow
the directly applicable precedent, even if it rests on reasoning seemingly rejected in a related
Supreme Court case. The Supreme Court explained that when lower courts are faced with
seemingly conflicting Supreme Court decisions, they should leave it to the high court to
determine which of its decisions are overruled, or to sort out any conflicts between its rulings.
Importantly, Johnson does not require that this Court sort out any conflicts in Supreme Court
authority but, rather, falls well within the Court of Appeals purview, namely, to clarify and
correct its own law in light of an intervening Supreme Court ruling.

                                                62
person who acts as a public attorney general and ensures the enforcement of the

civil rights laws, and plaintiffs in catalyst test cases technically have fulfilled this

role. After the development of this test, the Supreme Court issued its decision in

Farrar, which re-established that in order “to qualify as a prevailing party [under §

1988], a civil rights plaintiff must obtain at least some relief on the merits of his

claim.” Farrar, 506 U.S. at 108. Stated simply, the Supreme Court explained that

the recipient of an attorneys fee award under § 1988 “must obtain an enforceable

judgment against the defendant from whom fees are sought or comparable relief

through a consent decree or settlement.” Id. After Farrar, some courts concluded

that the catalyst test was no longer viable. In Morris, however, we rejected this

view. This Court held that the catalyst test survived Farrar because the Farrar

Court did not directly challenge the catalyst test and, given the strong policy

considerations supporting a broad interpretation of § 1988–namely ensuring the

enforcement of the civil rights laws–the test should survive.

      While Morris bears comparison to the instant case, I believe it is

distinguishable. The Robinson decision directly challenges the statutory analysis

we performed in Gonzales, as it overrules our decision regarding the threshold

determination of whether the terms in the ADA were ambiguous. Additionally, the

policy concerns that inform the ADA counsel that we must give the statute a broad


                                            63
cast, and therefore suggest that we should revisit the Gonzales Court’s more

restrictive interpretation of the statute. See 42 U.S.C. § 12101(a)(8) (explaining

that the ADA’s goal is to ensure that the disabled enjoy the same “equality of

opportunity, full participation, independent living, and economic self sufficiency”

as the non-disabled).

      In summary, because Robinson clearly invalidates our analysis in Gonzales I

believe that it requires that we revisit our interpretation of Title I of the ADA. As

for the substantive question of whether the ADA only protects current employees, I

join in Judge Pollak’s cogent discussion explaining the statutory basis for

interpreting the ADA to cover current as well as former employees, as well as his

analysis of the statute’s safe harbor provision.




                                          64
CARNES, Circuit Judge, dissenting:

      The threshold question in this case is whether a former employee is eligible

to file suit against his erstwhile employer under the Americans with Disabilities

Act of 1990, 42 U.S.C. § 12112(a), or is that right and remedy confined to current

employees or applicants. As the majority concedes, a prior decision of this Court,

Gonzales v. Garner Food Services, Inc., 89 F.3d 1523 (11th Cir. 1996), cert.

denied, 520 U.S. 1229, 117 S. Ct. 1822 (1997), squarely answers that question with

the holding that a former employee may not sue under the ADA, any remedy under

the Act being confined to current employees or applicants. The majority does not

pretend that the Gonzales decision, which is directly on point, has ever been

overruled by the Supreme Court, by this Court sitting en banc, or by Congress.

Yet the majority refuses to follow Gonzales.

       The only reason the majority gives for not following the law of the circuit as

established in Gonzales, is the Supreme Court’s later decision in Robinson v. Shell

Oil Co., 519 U.S. 337, 117 S. Ct. 843 (1997). The Robinson case, however, arose

and was decided under Title VII, not the ADA, and the two statutes have different

language and different legislative histories. The Supreme Court in Robinson did

not purport to overrule Gonzales or to establish any law about the ADA. And the

majority does not contend that Robinson addressed any ADA issues or that it


                                         65
purported to overrule Gonzales. Because I think that the majority’s action

violates the prior panel precedent rule, which requires that we follow the Gonzales

decision unless and until it is overruled by the Supreme Court or this Court sitting

en banc, I dissent.

      The prior panel precedent rule is an essential principle, the number one

ground rule, by which all of us on this Court must abide. It helps keep the peace,

stabilizes our circuit law, and promotes efficiency by enabling us to move on once

issues have been decided by a panel. See generally Bonner v. City of Prichard, 661

F.2d 1206, 1209-10 (11th Cir. 1981) (en banc) (deciding to have Eleventh Circuit

panels bound by all pre-split Fifth Circuit decisions, because “[s]tability and

predictability are essential factors in the proper operation of the rule of law”);

Jaffree v. Wallace, 705 F.2d 1526, 1533 (11th Cir. 1983), aff’d, 472 U.S. 38, 105 S.

Ct. 2479 (1985) (“Judicial precedence serves as the foundation of our federal

judicial system. Adherence to it results in stability and predictability.”). Those

important goals are achieved because, and only to the extent that, the prior

precedent rule requires a later panel to follow a prior one’s decision even though

convinced it is wrong. See generally Cohen v. Office Depot, Inc., 204 F.3d 1069,

1076 (11th Cir. 2000), cert. denied, 531 U.S. 957, 121 S. Ct. 381 (2000) (“[T]he

prior panel precedent rule is not dependent upon a subsequent panel’s appraisal of


                                           66
the initial decision’s correctness.”); United States v. Steele, 147 F.3d 1316, 1317 -

18 (11th Cir. 1998) (en banc) (“Under our prior precedent rule, a panel cannot

overrule a prior one’s holding even though convinced it is wrong.”) (quoting

Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir. 1997)).

       Our allegiance to the prior precedent rule, as well as the proper corrective

mechanism for purging our circuit law of earlier panel errors, is illustrated in two

cases that resulted in en banc decisions earlier this year. One is Saxton v. ACF

Industries, Inc., 239 F.3d 1209 (11th Cir. 2001), rev’d en banc, 254 F.3d 959 (11th

Cir. 2001). The panel in that case dutifully followed an earlier one’s holding even

though convinced it was wrong. See 239 F.3d at 1215. Then rehearing en banc

was promptly granted and, in a decision written by the author of the second

panel’s decision, 254 F.3d at 959, the en banc court overruled the first panel’s

erroneous, id. at 963 - 66. The same thing happened in Turner v. Beneficial

Corp., 236 F.3d 643 (11th Cir. 2000), rev’d en banc, 242 F.3d 1023 (11th Cir.

2001), cert. denied, 70 USLW 3234 (Oct. 1, 2001) (No. 00-1799). The panel in

that case also followed a prior panel’s decision even though convinced the earlier

panel had overlooked controlling statutory language that dictated a different result.

236 F.3d at 649 - 50. Rehearing en banc was granted, 236 F.3d 651, and the en

banc court overruled the erroneous prior precedent that had bound the later panel,


                                          67
242 F.3d 1023, all within the space of two months. As in Saxton, the en banc

opinion in Turner was written for the Court by the author of the second panel

opinion. See also United States v. Steele, 117 F.3d 1231, 1234 - 35 (11th Cir.

1997) (reluctantly following a prior panel decision even though it had overlooked a

controlling statute), rev’d en banc, 147 F.3d 1316 (11th Cir. 1998) (overruling the

erroneous prior decision that had bound the panel), cert. denied, 528 U.S. 933, 120

S. Ct. 335 (1999); Smith v. GTE Corp., 236 F.3d 1292, 1303 n.10 (11th Cir.

2001) (“The erroneous result reached by the prior panel whose decision bound the

Steele panel was corrected en banc, which is how erroneous panel decisions should

be corrected.”) (internal citation omitted). If the Gonzales panel erred in holding

that the ADA does not apply to former employees – and it is not at all clear to me

that its holding is error – the proper way to change circuit law on the issue is to use

this case as a vehicle for overruling Gonzales en banc, which is how we corrected

erroneous circuit law in Saxton, Turner, and Steele.

      Of course, prior panel decisions can be overruled by intervening Supreme

Court decisions, as well as by the en banc court, and where there is a conflict

between the holding of an earlier panel decision and that of a later Supreme Court

decision, subsequent panels must follow the Supreme Court decision. See In re

Provenzano, 215 F.3d 1233, 1235 (11th Cir. 2000), cert. denied, 530 U.S. 1256,


                                          68
120 S. Ct. 2710 (2000) (“We would, of course, not only be authorized but also

required to depart from [the prior decision] if an intervening Supreme Court

decision actually overruled or conflicted with it.”); Cottrell v. Caldwell, 85 F.3d

1480, 1485 (11th Cir. 1996) (“Where prior panel precedent conflicts with a

subsequent Supreme Court decision, we follow the Supreme Court decision.”).

But a panel is justified in disregarding a prior panel decision because of the

Supreme Court’s holding in a later case only when that intervening holding is

squarely on point.

      As we have held on numerous occasions, a prior panel decision that has been

weakened but not overruled by a later Supreme Court decision must be followed

by later panels. See United States v. Chubbuck, 252 F.3d 1300, 1305 n.7 (11th

Cir. 2001) (“We are not at liberty to disregard binding case law that is so closely

on point and has been only weakened, rather than directly overruled, by the

Supreme Court.”) (internal quotes and citation omitted); Lapides v. Bd. of Regents,

251 F.3d 1372, 1377 n. 3 (11th Cir. 2001) (same); Morris v. City of West Palm

Beach, 194 F.3d 1203, 1207 n.6 (11th Cir. 1999) (same); United States v. Smith,

122 F.3d 1355, 1359 (11th Cir. 1997) (same), cert. denied, 522 U.S. 1021, 118 S.

Ct. 614 (1997); see also N.L.R.B. v. Datapoint Corp., 642 F.2d 123, 129 (5th Cir.

Unit A April 1981) (“Without a clearly contrary opinion of the Supreme Court or


                                          69
of this Court sitting en banc, we cannot overrule a decision of a prior panel of this

Court....”). So, we have said in at least four decisions that a later panel must follow

an earlier one’s holding that has been weakened but not overruled by an

intervening Supreme Court decision. Seven judges of this Court either wrote or

joined the opinions in one or more of those four decisions: Judges Edmondson,

Birch, Black, Wilson, Fay, Cox, and me. I think that we meant what we said.

      The temptation can be great for a judge to read into an intervening Supreme

Court decision more than is there in order to justify not following a particularly

pesky prior panel precedent. To be tempted in that respect is just human, but we

should resist the temptation. It is critical that when sitting as panel judges we be

diligent in policing the line between prior precedent that has been contradicted and

thereby overruled by intervening Supreme Court precedent, and that which has

been only weakened by it. The strength and integrity of our prior precedent rule,

upon which so much rests, is dependent upon that distinction.

      The most that can be justifiably said about the effect of Robinson on the

holding in Gonzales is that some of what is said, but not anything that is held, in

the Robinson opinion arguably weakens some of the reasoning in the Gonzales

opinion. That, however, is not enough for this panel to toss the Gonzales

decision aside. The majority says that “legal precedent provides our starting point,”


                                          70
Majority Op. at 18, but when prior panel precedent is directly on point, as the

Gonzales decision is, it also ought to be the ending point for subsequent panels

until that controlling precedent has been overruled. Instead of ending with the

controlling precedent of Gonzales, the majority, in its own words, proceeds to

“assess the continuing viability of the components of the rationale in Gonzales.”

Majority Op. at 18. The exception to the prior precedent rule for intervening

Supreme Court decisions does not authorize this panel to assess the continuing

viability of the components of the rationale that led a prior panel to reach the

holding it did. See Cohen, 204 F.3d at 1076 (“[T]he prior panel precedent rule is

not dependent upon a subsequent panel’s appraisal of the initial decision’s

correctness.”).

      Supreme Court decisions may provide a springboard for the en banc court to

reconsider settled circuit law, but they should not be viewed as an opportunity for a

later panel to cast aside circuit law with which that panel disagrees. A fair reading

of the majority opinion indicates that is what this panel has done. The question is

not, as the majority terms it, whether the reasoning of an intervening Supreme

Court decision has “undermined” the reasoning of a prior panel precedent, but

whether the Supreme Court decision has overruled that prior precedent. When it

comes to their effect on prior panel precedents, Supreme Court decisions either


                                          71
overrule those precedents, or they do not. So far as a later panel is concerned, the

effect of a Supreme Court precedent is all or nothing. And here it is nothing, so far

as this panel (to be distinguished from the en banc court) is concerned. The

Supreme Court’s Robinson decision does not explicitly overrule Gonzales or its

holding. Nor does Robinson clearly contradict Gonzales to the point of implicitly

overruling it.

      The extent to which the majority’s decision defies our prior panel precedent

rule is evident from the fact that the Supreme Court in Robinson held nothing more

than what this Court had already held before the Gonzales decision was released.

This Court had held in Bailey v. USX Corp., 850 F.2d 1506 (11th Cir. 1988), that

former employees may sue under the anti-retaliation provision of Title VII. The

plaintiff in Gonzales, relying on Bailey, argued by analogy that the same should

be true of former employees and the ADA. 89 F.3d at 1527. The Gonzales panel

acknowledged that Title VII’s anti-retaliation clause applied to former employees,

as Bailey had held, but it distinguished that provision of Title VII from the ADA

on the basis of the different statutory language and legislative history. Id. at 1527

- 29. What the Supreme Court did in Robinson was agree with our circuit law, as

set out in Bailey, that Title VII’s anti-retaliation provision does apply to former

employees, something the Gonzales panel itself had acknowledged and considered


                                          72
in deciding that the ADA does not. It is a bit audacious for the majority to say that

a Supreme Court decision whose holding was anticipated, acknowledged, and

considered by a prior panel when deciding a different issue has undermined that

prior panel’s decision on the different issue to such an extent that it may be

disregarded.

       The fact that the Supreme Court’s Robinson decision is not inconsistent

with our Gonzales precedent is also evident from the post-Robinson decisions of

two other federal court of appeals which reached exactly the same conclusion as

Gonzales even in the wake of Robinson. The Court in Weyer v. Twentieth

Century Fox Film Corp., 198 F.3d 1104, 1112 (9th Cir. 2000), squarely faced the

issue of whether the Supreme Court’s Robinson decision was inconsistent with the

holding of this Court in Gonzales and of other circuits that had reached the same

conclusion this circuit had in Gonzales. After contrasting the language of the

ADA with that of Title VII, and fully considering the Supreme Court’s Robinson

decision, the Ninth Circuit, which was not bound to accord our Gonzales decision

any presumption or deference, nonetheless followed Gonzales. It did so after

concluding that Robinson had not undermined Gonzales. Weyer, 198 F.3d at

1108 - 13.

      Likewise, in Morgan v. Joint Admin. Bd., ___ F.3d ___, No. 00-3859 (7th


                                         73
Cir. Oct. 11, 2001), the Seventh Circuit re-affirmed its pre-Robinson decision

holding that the former employees are not protected by the employment provisions

of the ADA. After pointing out that the ADA requires plaintiffs to be able to

perform the essential functions of their job before they are entitled to the protection

of the Act, the Court pointedly asked about whether former employees are

covered: “How could they be? They cannot perform the essential functions of their

job, and therefore they have no rights under the statutory provisions [of the

ADA].” Id. at ___.

      The plaintiffs in Morgan conceded that EEOC v. CNA Ins. Cos., 96 F.3d

1039 (7th Cir. 1996) ,a pre-Robinson decision of the Seventh Circuit panel, had

held that the ADA does not apply to former employees, but they asked the Court

to re-examine that position in light of Robinson’s holding that Title VII’s anti-

retaliation provision does apply to former employees. Id. at ___. The Court

concluded that Robinson had changed nothing about Seventh Circuit law on the

ADA, reasoning that there is a “stark” difference between the anti-retaliation

provision of Title VII and the employment provisions of the ADA, and that

extending the scope of the ADA to former employees would “create perverse

incentives” resulting in fewer employers offering disability benefits to their

workers. Id.


                                          74
      Further, the Morgan Court observed that in CNA the panel had considered

the very reasoning that would later be adopted by Robinson in a Title VII

retaliation case, and had declined to apply it to the ADA. Morgan, __ F.3d at __.

(“We anticipated the difference between [the Title VII] situation and the one here

in the case the plaintiffs ask us to overrule.”). Because CNA had already

distinguished Robinson’s Title VII-retaliation situation from that of an ADA case

not involving retaliation, the Morgan Court recognized that Robinson did not

govern the case before it, and followed the prior panel decision, CNA. Similarly,

as noted above, our Gonzales opinion distinguished Bailey, a Title VII retaliation

case, from the case before it, an ADA case. Thus Gonzales, just like CNA,

anticipated Robinson’s Title VII arguments and rejected their applicability to an

ADA case. In Morgan, the Seventh Circuit respected its CNA decision,

specifically its distinction between Title VII and the ADA. In this case, our prior

panel precedent rule requires that this panel afford the same respect to Gonzales.

      A couple of other circuits in post -Robinson decisions have reached

conclusions on the coverage issue that are different from the Ninth Circuit’s in

Weyer and the Seventh Circuit’s in Morgan (and that of our prior panel in

Gonzales). See Ford v. Schering-Plough Corp., 145 F.3d 601 (3rd Cir. 1998),

cert. denied, 525 U.S. 1093, 119 S. Ct. 850 (1999); Castellano v. City of New


                                         75
York, 142 F.3d 58 (2d Cir. 1998). The point, however, is not whether Weyer and

Morgan are right or wrong on the ultimate issue involving the scope of the ADA as

it concerns former employees. The point is that Weyer and Morgan irrefutably

demonstrate that reasonable jurists can conclude Robinson does not undermine or

contradict Gonzales to the point of overruling it, because two panels composed of

six federal court of appeals judges have reached the same conclusion as Gonzales

after they fully examined and considered Robinson.

      In view of that, Judge Barkett’s statement that “there is no doubt that the

Robinson Court’s decision invalidates Gonzales” is one with which I cannot agree.

Judge Barkett obviously disagrees with the conclusions of Judges Flaum, Posner,

and Williams of the Seventh Circuit in Morgan and of Judges Beezer, Wiggins,

and Kleinfeld of the Ninth Circuit in Weyer, but the fact that there is disagreement,

and a two-to-two split of the other circuits that have addressed the issue since

Robinson was released proves that there is substantial doubt about whether

Robinson overruled or undermined to the point of abrogation the Gonzales

decision.

      That ought to be all this panel needs to know in order to decide this appeal,

because if reasonable jurists can disagree about whether a Supreme Court decision

contradicts the holding of a prior panel, as they undeniably have, that prior panel


                                         76
holding must be followed. The prior panel precedent rule – the fundamental

ground rule under which we operate as members of a court that sits in panels, the

rule that keeps the peace among us, and the rule that is essential to the stability and

predictability of our circuit law – demands no less.

      I express no view on how I would vote to decide the ADA coverage issue if

we were reconsidering it en banc, see generally United States v. Steele, 147 F.3d

at 1318 (en banc court not bound by prior panel decisions), nor do I express any

view on the other issue the panel addresses (the one involving differential

treatment of the mentally and physically disabled), because that issue would be

moot if this panel followed Gonzales, as it is bound to and should do.




                                          77
