00-3859 Morgan v. Joint Administration Board, Retirement Plan of The Pillsbury Company, et al.

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“Allowing former employees to complain about postemployment discrimination that does not involve retaliation would actually hurt them, in the same way that denying them protection against retaliation would hurt them: it would create perverse incentives. Since there is no legal requirement that employers offer disability benefits as part of their menus of fringe benefits, compelling employers who do to maintain them in lockstep with other benefits would deter their provision. The employer would tell its employees to buy their own disability insurance or to rely on social security disability benefits should they become disabled. Since workers with a disability are more likely than other workers to become totally disabled and have to retire early, an interpretation of the Act that discouraged employers from offering disability benefits would make the workplace less attractive to such workers. The purpose of the Act’s employment provisions is to draw workers with a disability into the workforce. … The interpretation for which the plaintiffs contend would have the opposite effect.

“We have been talking practical effects but the language of the Americans with Disabilities Act also supports differentiating retaliation plaintiffs from discrimination plaintiffs. The statutory protections against discrimination are protections of ‘[otherwise] qualified individual[s] with a disability,’… The plaintiffs in our case are certainly individuals, but they are not qualified individuals with a disability, that is, qualified (able) to work with or without a reasonable accommodation to their disability; they are totally disabled and so utterly unable to work.”

Affirmed.

Appeal from the United States District Court for the Southern District of Indiana, Hamilton, J., Posner, J.