KENNEDY, J., delivered the opinion of the court, in which NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, and BATCHELDER, JJ., joined. MARTIN, C.J. (pp. 1019-20) and MERRITT, J. (pp. 1020-21), delivered separate dissenting opinions, in which MOORE, J., joined, with Chief Judge MARTIN and Judges DAUGHTREY and COLE also joining in Judge MERRITT'S dissent.
KENNEDY, Circuit Judge.
Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12182-12189 ("ADA"), prohibits discrimination 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. In the instant case, we are asked to determine whether Title III of the ADA prohibits an employer from providing to its employees a long-term disability plan issued by an insurance company which contains longer benefits for employees who become disabled due to a physical illness than for those who become disabled due to a mental illness. For the reasons set forth below, we conclude that such a distinction is not prohibited.
Plaintiff, Ouida Sue Parker, was employed by Schering-Plough Health Care Products, Inc. ("Schering-Plough") from April 20, 1981 through October 29, 1990. During her employment, Parker participated in a long-term disability plan offered by Schering-Plough to its employees; the plan was issued by Metropolitan Life Insurance Co. ("MetLife"). Under the plan, an individual who is deemed to be totally disabled due to a mental or nervous disorder may receive benefits for up to twenty-four months, unless at the termination of the twenty-four month period, the individual was hospitalized or receiving inpatient care for the disorder. For physical disorders, however, the plan provides for benefits until the individual reaches sixty-five years of age.
On October 29, 1990, Parker became disabled due to severe depression. On April 29, 1991, Parker began to receive benefit payments under the plan. Because Parker suffered from a mental disorder, Schering-Plough terminated her payments twenty-four months later, on April 28, 1993, pursuant to the terms of the plan. Following Schering-Plough's denial of two administrative appeals filed by Parker, plaintiff filed this action alleging violations of the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213, and the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001-1461 ("ERISA"). The District Court granted the defendants' motion for summary judgment. The District Court first found that Parker did not have standing to sue under Title I of the ADA, 42 U.S.C. §§ 12111-12117, because only a "qualified individual with a disability" may obtain relief under Title I and Parker was not a "qualified individual with a disability" when her benefits were terminated because her disorder prevented her from performing the essential functions of her employment position. The District Court also dismissed Parker's claim against the defendants under Title III of the ADA, 42 U.S.C. §§ 12165-12189. MetLife was not a proper defendant under Title III, the court concluded, because Title III only covers discrimination in the physical access to goods and services, not discrimination in the terms of insurance policies. The Title III claim against Schering-Plough, Parker's employer, was dismissed because Title I, not Title III, governs discrimination in employment practices. Because Parker was not a qualified individual under Title I, a suit against her employer could not be maintained under the ADA. Lastly, the District Court granted summary judgment in favor of the defendants on Parker's
On appeal from the District Court's order, a panel of this Court affirmed the District Court's judgment as to Parker's ERISA claim
Because the panel concluded that the contents of insurance products are governed by Title III, it then turned to whether Title IV of the ADA, 42 U.S.C. § 12201(c), commonly referred to as the "safe harbor provision," precluded application of Title III to insurance products. The panel concluded that the safe harbor provision was ambiguous on its face as to whether it intended to exempt insurance products from ADA coverage. It, therefore, looked to legislative history for guidance. The panel concluded that the legislative history indicated that "insurance practices are protected by the `safe harbor' provision, but only to the extent that they are consistent with `sound actuarial principles,' `actual reasonably anticipated experience,' and `bona fide risk classification.'" Parker, 99 F.3d at 191. Responding to the defendants' argument that an insurance plan violates the ADA only if it is a "subterfuge" under § 12201(c), the panel declined to adopt the Supreme Court's definition of subterfuge pronounced in Ohio Public Employees Retirement System v. Betts, 492 U.S. 158, 109 S.Ct. 2854, 106 L.Ed.2d 134 (1989). In Betts, the Court defined the term subterfuge in the Age Discrimination in Employment Act ("ADEA") as an intent to discriminate. See Betts, 492 U.S. at 181, 109 S.Ct. at 2868-69. Declining to follow the ADEA definition of subterfuge, the panel held that an insurance plan is a subterfuge under the ADA if it is "based on speculation, and not on sound actuarial principles, actual or reasonably anticipated experience, or bona fide risk classification." Parker, 99 F.3d at 191-92.
Finally, in response to Schering-Plough's contention that Title I, not Title III, governs employment practices, the panel held that "based on our affirmance of Plaintiff's Title I claim, it is not clear whether Schering remains a proper defendant to the remaining claim [Title III] of this suit." Parker, 99 F.3d at 194. The panel did not resolve this question of law; rather, it instructed the lower court that the issue was ripe for its determination on remand. Id.
Following the panel's decision, the defendants sought rehearing en banc on the panel's disposition of Parker's Title III claim. We granted their petition and vacated our prior judgment. See Parker v. Metropolitan Life Ins. Co., 107 F.3d 359 (6th Cir.1997). Accordingly, the case is again before us for our determination. Upon review, we conclude that the judgment of the District Court will be
Our standard of review of a grant of summary judgment is de novo; we use the same test as used by the district court. See Brooks v. American Broadcasting Cos., 932 F.2d 495, 500 (6th Cir.1991). Summary judgment is proper if the evidence "`show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to [a] judgment as a matter of law.'" See Fed.R.Civ.P. 56(c); Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir.1988)(quoting Fed.R.Civ.P. 56(c)).
A. Title III: Places of Public Accommodation
To determine whether a benefit plan provided by an employer falls within the prohibitions of Title III, we must begin by examining the statutory text. See United States v. Gonzales, ___ U.S. ___, ___, 117 S.Ct. 1032, 1034, 137 L.Ed.2d 132 (1997); Kurinsky v. United States, 33 F.3d 594, 596 (6th Cir.1994)(citing United States v. Johnson, 855 F.2d 299 (6th Cir.1988)), cert. denied, 514 U.S. 1082, 115 S.Ct. 1793, 131 L.Ed.2d 721 (1995). The ADA generally prohibits discrimination against the disabled by employers, public entities, and by operators of public accommodations. See 42 U.S.C. §§ 12101-12213. Title III of the ADA specifically addresses discrimination by owners, lessors, and operators of public accommodations. It provides as follows:
42 U.S.C. § 12182(a).
Section 12181 sets forth the following list of private entities that are considered public accommodations for purposes of Title III:
42 U.S.C. § 12181(7)(emphasis added).
Title III specifically prohibits, inter alia, the provision of unequal or separate benefits by a place of public accommodation. See 42 U.S.C. §§ 12182(b)(1)(A)(i)-(iii). For example, 42 U.S.C. § 12182(b)(1)(A)(ii) provides that it is "discriminatory to afford an individual or class of individuals, on the basis of a disability ... with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals ..." 42 U.S.C. § 12182(b)(1)(a)(ii). To the extent that subsections (i), (ii), and (iii) do not explicitly state that they apply only to public accommodations, subsection (iv) expressly provides that "... the term `individual or class of individuals' refers to the clients or customers of the covered public accommodation ..." 42 U.S.C. § 12182(b)(1)(a)(iv).
While we agree that an insurance office is a public accommodation as expressly set forth in § 12181(7), plaintiff did not seek the goods and services of an insurance office. Rather, Parker accessed a benefit plan provided by her private employer and issued by MetLife. A benefit plan offered by an employer is not a good offered by a place of public accommodation. As is evident by § 12187(7), a public accommodation is a physical place and this Court has previously
Similarly, the good that plaintiff seeks is not offered by a place of public accommodation. The public cannot enter the office of MetLife or Schering-Plough and obtain the long-term disability policy that plaintiff obtained. Parker did not access her policy from MetLife's insurance office. Rather, she obtained her benefits through her employer. There is, thus, no nexus between the disparity in benefits and the services which MetLife offers to the public from its insurance office.
The Department of Justice's explanation of whether wholesale establishments are places of public accommodation supports our conclusion that MetLife's offering of a disability plan to Schering-Plough is not a service offered by a place of public accommodation. As the Department explains:
28 C.F.R. pt. 36, app. B at 604 (1996). Thus, the offering of disability policies on a discounted rate solely to a business is not a service or good offered by a place of public accommodation.
Furthermore, Title III does not govern the content of a long-term disability policy offered by an employer. The applicable regulations clearly set forth that Title III regulates the availability of the goods and services the place of public accommodation offers as opposed to the contents of goods and services offered by the public accommodation.
28 C.F.R. pt. 36, app. B at 630; see also 28 C.F.R. § 36.212 (1996).
In arriving at this conclusion, the First Circuit disregarded the statutory canon of construction, noscitur a sociis. See Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 701-03, 115 S.Ct. 2407, 2415, 132 L.Ed.2d 597 (1995). The doctrine of noscitur a sociis instructs that "a ... term is interpreted within the context of the accompanying words `to avoid the giving of unintended breadth to the Acts of Congress.'" Kurinsky v. United States, 33 F.3d 594, 597 (6th Cir.1994)(quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 1582, 6 L.Ed.2d 859 (1961)), cert. denied, 514 U.S. 1082, 115 S.Ct. 1793, 131 L.Ed.2d 721 (1995); see also Owen of Georgia, Inc. v. Shelby County, 648 F.2d 1084, 1092 (6th Cir.1981). Black's Law Dictionary defines the term as:
BLACK'S LAW DICTIONARY 1060 (6th ed.1990).
The clear connotation of the words in § 12181(7) is that a public accommodation is a physical place. Every term listed in § 12181(7) and subsection (F) is a physical place open to public access. The terms travel service, shoe repair service, office of an accountant or lawyer, insurance office, and professional office of a healthcare provider do not suggest otherwise. Rather than suggesting that Title III includes within its purview entities other than physical places, it is likely that Congress simply had no better term than "service" to describe an office where travel agents provide travel services and a place where shoes are repaired. Office of an accountant or lawyer, insurance office, and professional office of a healthcare provider, in the context of the other terms listed, suggest a physical place where services may be obtained and nothing more. To interpret these terms as permitting a place of accommodation to constitute something other than a physical place is to ignore the text of the statute and the principle of noscitur a sociis.
Accordingly, we conclude that the provision of a long-term disability plan by an employer and administered by an insurance company does not fall within the purview of Title III.
B. Title I of the ADA Governs Employment Practices
Because the statutory framework of the ADA expressly limits discrimination in employment practices to Title I of the ADA, the District Court properly dismissed Schering-Plough, Parker's employer, from this action. As set out by the statute, Title I provides:
42 U.S.C. § 12112(a). The regulations governing the ADA specifically provide that it is unlawful for an employer to discriminate on the basis of disability against a qualified individual with a disability in regard to "[f]ringe benefits available by virtue of employment, whether or not administered by the [employer]." 29 C.F.R. § 1630.4(f)(1996). As noted by the Equal Employment Opportunity Commission ("EEOC"), the agency charged with administering and enforcing Title I of the
It is, thus, clear that Schering-Plough is not a proper defendant under Title III, except to the extent that it is alleged to be a plan fiduciary; discrimination in the provision of fringe benefits during employment is governed strictly by Title I and the provision of a long-term disability plan is a fringe benefit of employment. See, e.g., Equal Employment Opportunity Comm'n v. CNA Ins. Cos., 96 F.3d 1039, 1044 (7th Cir.1996)("One of th[e] terms, conditions, or privileges of employment may be a pension plan").
Because the provision of a long-term disability plan by an employer and administered by an insurance company does not fall within the purview of Title III and because the statutory framework of the ADA expressly limits discrimination in employment practices to Title I of the ADA, the District Court properly granted summary judgment on behalf of the defendants.
C. The ADA Prohibits Only Discrimination Between the Disabled and Non-Disabled
The disparity in benefits provided in the policy at issue is also not prohibited by the ADA because the ADA does not mandate equality between individuals with different disabilities. Rather, the ADA prohibits discrimination between the disabled and the non-disabled; specifically, the ADA mandates that the owners, lessors, and operators of public accommodations provide equal access to the disabled and non-disabled. Because all employees at Schering-Plough, whether disabled or not, received the same access to the long-term disability plan, neither the defendants nor the plan discriminated
In Traynor v. Turnage, 485 U.S. 535, 108 S.Ct. 1372, 99 L.Ed.2d 618 (1988), the Supreme Court considered whether a benefit given to a certain class of disabled persons and not to others violated the Rehabilitation Act, 29 U.S.C. § 794.
The petitioners' contention that the "willful misconduct" provision of the GI Bill violated the Rehabilitation Act was rejected by the Court. Id. at 548-49, 108 S.Ct. at 1382. In rejecting the petitioners' argument, the Court noted that the central purpose of the Rehabilitation Act is "to assure that handicapped individuals receive `evenhanded treatment' in relation to nonhandicapped individuals." Id. at 548, 108 S.Ct. at 1382 (citations omitted). The Court clarified that "[t]his litigation does not involve a program or activity that is alleged to treat handicapped persons less favorably than nonhandicapped persons." Id. Rather, the "willful misconduct" provision "provides a special benefit to disabled veterans who bear no responsibility for their disabilities that is not provided to other disabled veterans or to any able-bodied veterans." Id. at 549, 108 S.Ct. at 1382. The benefits provided to a particular class did not violate the Act, in the Court's view, because "[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. Thus, the Court held it is "not inconsistent with the Rehabilitation Act for only those veterans whose disabilities are not attributable to their own `willful misconduct' to be granted extensions of the 10-year delimiting period applicable to all other veterans." Id.; see also Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985)(Tennessee's generalized limitations on Medicaid payments, which fell disproportionally on disabled individuals because of their greater medical needs, did not violate the Rehabilitation Act).
Following the Supreme Court's decision in Traynor, the United States Court of Appeals for the District of Columbia held in Modderno v. King, 82 F.3d 1059 (D.C.Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 772, 136 L.Ed.2d 717 (1997), that the Foreign Service Benefit Plan provided to foreign service officers and their spouses, which limited lifetime coverage for mental health benefits to $75,000 while placing no similar restriction on benefits for physical illnesses, did not violate the Rehabilitation Act. The D.C. Circuit found that, if across-the-board limits were permissible in Alexander v. Choate, then an insurance provider could cap the benefits for all illnesses. Id. at 1062. When an insurance provider, instead, places a limit on only one type of illness, such as mental illness, the disabled, as a class, benefit; if the cap were
Citing to Alexander v. Choate and the D.C. Circuit's decision in Modderno, the United States Court of Appeals for the Seventh Circuit in Equal Employment Opportunity Commission v. CNA Insurance Cos., 96 F.3d 1039 (7th Cir.1996), held that a limitation on mental health benefits in a long-term disability plan does not violate the ADA. In CNA Insurance, the defendant companies offered a long-term disability policy to their employees in which benefits for mental illness were paid only for a two-year period while benefits for physical illnesses were paid until the employee reached age sixty-five. Id. at 1041. The EEOC brought suit against the defendants after an employee was informed by defendants that benefits for her mental disorder would be paid only for twenty-four months. In determining whether the former employee had standing to sue under the ADA for discrimination occurring during the employment period, the Seventh Circuit held that the employee suffered no discrimination under Title I of the ADA while she was employed. Id. at 1045. In the court's words:
Id. at 1044 (citing Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985); Modderno v. King, 82 F.3d 1059 (D.C.Cir.1996)). In determining whether the plan discriminates against employees who will sometime in the future become mentally disabled because they are unknowingly purchasing only twenty-four months of benefits, the court stated:
Id. (citations omitted).
On September 26, 1996, the day before the Seventh Circuit's decision in CNA Insurance was released, Congress enacted the Mental Health Parity Act, 42 U.S.C. § 300gg-5, as an amendment to the Health Insurance Portability Act.
Without discussing the Mental Health Parity Act,
Id. (quoting EEOC: Interim Enforcement Guidance on Application of ADA to Health Insurance, (June 8, 1993), reprinted in Fair. Empl. Prac. Man. 405:7115, 7118(BNA)). In accordance with these guidelines, the court concluded that the plan's exclusion of benefits for infertility treatments did not single out a particular group of disabilities. "Rather, the Plan's infertility exclusion applies equally to all individuals, in that no one participating in the Plan receives coverage for treatment of infertility problems." Id. at 678. Thus, the court held, the plan did not contain a disability-based distinction. Id.; see also Cramer v. State of Florida, 885 F.Supp. 1545, 1550-1553 (M.D.Fla.1995)(citing
In conclusion, we agree with those circuits that have extended the Supreme Court's holdings in Traynor v. Turnage and Alexander v. Choate to the ADA. As the Court concluded regarding the Rehabilitation Act, the ADA similarly does not prohibit an insurance company from differentiating between different disabilities. The same policy is provided to all employees who, when they receive it, are not disabled but working. The fact that some may become disabled for different reasons does not amount to discrimination in providing the policy. The ADA simply does not mandate equality between individuals with different disabilities. Rather, the ADA, like the Rehabilitation Act, prohibits discrimination between the disabled and the non-disabled.
For the foregoing reasons, the judgment of the District Court is
BOYCE F. MARTIN, JR., Chief Judge, dissenting.
I join Judge Merritt and others in dissenting from the opinion of the Court in this case. I write separately to highlight my agreement with Judge Merritt regarding congressional intent and to emphasize my disagreement with the majority's interpretation of Stoutenborough v. National Football League, Inc., 59 F.3d 580 (6th Cir.1995).
In Stoutenborough, a hearing impaired individual and an association of hearing impaired individuals sought to prohibit the National Football League, its member clubs, and several broadcast companies from using the so-called "blackout rule" to avoid broadcasting live local football games when tickets to the live game had not been completely sold seventy-two hours before the game. With regard to Stoutenborough's Title III claim, we stated that "plaintiff's argument that the prohibitions of Title III are not solely limited to `places' of public accommodation contravenes the plain language of the statute." Id. at 583.
The majority takes this language to mean that Title III's mandates are limited to physical structures. However, Stoutenborough recognized that, in the context of a Title III claim, the term "place" is a defined term; we recognized that "a `place' is ` a facility,  operated by a private entity,  whose operations affect commerce and  fall within at least one of the twelve "public accommodation" categories.'" Id. Because the defendants in Stoutenborough, did not fall within one of the twelve public accommodation categories, they were not "places" of public accommodation as required for Title III protection. Thus, although Stoutenborough limited Title III's applicability to "places," it did so in the context of the defined meaning of the term "place." Unlike the defendants in Stoutenborough, Title III specifically identifies an "insurance office" as a public accommodation. 42 U.S.C. § 12181(7)(F).
Not only does the majority view incorrectly apply Stoutenborough, it also directly conflicts with the conclusion reached by the First Circuit. In Carparts Distribution Ctr. v. Automotive Wholesalers Ass'n of New England, 37 F.3d 12 (1st Cir.1994), the First Circuit held that, by including travel services in the list of public accommodations, Congress chose not to limit Title III protections to physical structures. The Carparts court wrote: "It would be irrational to conclude that persons who enter an office to purchase services are protected by the ADA, but persons who purchase the same services over the telephone or by mail are not. Congress could not have intended such an absurd result." Id. at 19. Similarly, Judge Merritt notes that, under the majority view, individuals who purchase insurance through an insurance
In my view, Judge Merritt and the First Circuit present a more compelling argument. As the First Circuit noted, "[t]he purpose of Title III is `to bring individuals with disabilities into the economic and social mainstream of American life .... in a clear, balanced, and reasonable manner.'" Id. (citing H.R.Rep. No. 485, 101st Cong., 2d Sess., pt. 2, at 99 (1990) reprinted in 1990 U.S.C.C.A.N. 303, 382).
By limiting Title III's applicability to physical structures, the majority interprets Title III in a manner completely at odds with clear congressional intent. In recent years, the economic and social mainstream of American life has experienced significant change due to technological advances. An increasing array of products and services are becoming available for purchase by telephone order, through the mail, via the Internet, and other communications media. Unfortunately, under the majority view, the same technological advances that have offered disabled individuals unprecedented freedom may now operate to deprive them of rights that Title III would otherwise guarantee. As the modern economy increases the percentage of goods and services available through a marketplace that does not consist of physical structures, the protections of Title III will become increasingly diluted.
In my view, the majority view incorrectly applies a prior opinion of this Court and reaches a conclusion clearly at odds with congressional intent. Accordingly, I join Judge Merritt and respectfully dissent.
MERRITT, Circuit Judge, dissenting.
I would adhere to the panel's interpretation with respect to the application to group health and disability insurance policies of Titles III and IV of the Americans with Disabilities Act, 42 U.S.C. §§ 12182, 12201. The panel's reasoning is fully set out in its published decision, Parker v. Metropolitan Life Ins. Co., 99 F.3d 181 (6th Cir.1996). It reaches the conclusion that the statute covers group health and disability insurance provided by insurance companies through an insured's employer, as well as insurance provided by walk-in insurance agencies.
Our Court has now held that the provisions of the Disabilities Act simply do not cover employee health and disability insurance plans because "a benefit plan offered by an employer is not a good offered by a place of public accommodation" (Op. p. 1010). Footnotes 4 and 9 of the Court's opinion notwithstanding, according to the express language of the Court's opinion, Parker is not covered because she got her coverage from MetLife through the employer instead of walking into a MetLife office and buying it.
(Op. p. 1011.) Footnotes 4 and 9 are post hoc efforts by the Court to do an about face and march off in a different direction, or at least bury its head in the sand.
Our Court's decision that the Disabilities Act does not cover employer-sponsored plans flies in the face of § 501(c) of the Act, 42 U.S.C. § 12201(e), entitled "Insurance" (attached as an addendum to this opinion), which immediately follows the Title III coverage provision prohibiting discrimination. It provides a "safe harbor" for insurance companies in certain respects. If Title III does not cover the millions of employees covered by health and disability insurance policies, as our Court has now held, it is difficult to see why Congress would provide a qualified exemption for insurance companies. It is also difficult to see why the House and Senate Committee Reports would treat such insurance as covered by the Act, as the following quotes clearly demonstrate:
H.R.Rep. No. 485, 101st Cong., 2nd Sess., pt. II, at 136-37 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 303, 419-20. The explanation continues:
Id. at 137-38, reprinted in 1990 U.S.C.C.A.N. at 420-21. Another House report states:
H.R.Rep. No. 485, 101st Cong., 2nd Sess. pt. III, at 70 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 493. The Senate report contains an explanation nearly identical to those quoted above. See S.Rep. No. 116, 101st Cong., 1st Sess. 84-86 (1989). In addition, the Senate Report states:
It is strange, indeed, that Congress would put § 501(c) in the Act and write these committee reports if Congress did not include employer-sponsored health and disability insurance in the prohibition against discrimination based on disability. It boggles the mind to think that Congress would include only the few people who walk into an insurance office to buy health insurance but not the millions who get such insurance at work. This distinction drawn by the Court produces an absurd result.
The fact that Congress intended that health and disability insurance for employees is covered by Titles III and IV does not necessarily mean that insurance companies lose. It means merely, as noted in the panel decision, that insurance practices, including the insurance industry's justification for its distinction between mental and physical disabilities, are fully protected to the extent they are in accord with sound actuarial principles, reasonably anticipated experience and bona fide risk classification. The case, as the panel held, should be remanded to the district court for further consideration of the factual and legal issues arising under Title IV from the insurance industry's asserted distinction between mental and physical disabilities.
Subchapters I through III of this chapter and title IV of this Act shall not be construed to prohibit or restrict —
Paragraphs (1), (2), and (3) shall not be used as a subterfuge to evade the purposes of subchapter I and III of this chapter.
As this interpretation is inconsistent with its regulations and the statutory text of Title IV, we decline to adopt it. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984); Municipal Resale Serv. Customers v. Federal Energy Regulatory Comm'n, 43 F.3d 1046, 1053 (6th Cir.1995).
The discrepancy between the statute, the regulations, and the agency interpretations is due to Congress' failure to define the term "subterfuge" in Title IV of the ADA. The EEOC and the Justice Department, in certain writings, have expressed the view that, in order for a policy to not be a subterfuge, it must be based on sound actuarial principles. This definition is inconsistent with the Supreme Court's definition of the term subterfuge contained in the Age Discrimination in Employment Act. See Ohio Public Employees Retirement Sys. v. Betts, 492 U.S. 158, 109 S.Ct. 2854, 106 L.Ed.2d 134 (1989). In Betts, the Court defined subterfuge as a specific intent to discriminate. Id. at 181.
We leave the resolution of the proper definition of subterfuge in Title IV for another day because we conclude that a long-term disability plan provided by an employer is not covered by Title III; the safe harbor provision is, therefore, not implicated.
Motzkin, 938 F.Supp. at 996 (citations omitted).