4.2 APPLICABILITY
Like title VII of the Civil Rights Act of 1964, the ADA applies to organizations employing fifteen or more employees. 4 The United States
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Supreme Court endorsed the Equal Employment Opportunity Commission's (EEOC's) usage of the common law control test to determine whether physician-shareholders who owned a professional corporation and constituted its board of directors were employees for purposes of determining whether or not the entity met the jurisdiction threshold of the ADA. 5 More specifically, the Supreme Court indicated that the following six factors are relevant to the determination of whether a shareholder-director is an employee for purposes of the ADA:
| 1. | Whether the organization can hire or fire the individual or set the rules and regulations of the individual's work; | |
| 2. | Whether and to what extent the organization supervises the individual's work; | |
| 3. | Whether the individual reports to someone higher in the organization; | |
| 4. | Whether and to what extent the individual is able to influence the organization; | |
| 5. | Whether the parties intended that the individual be an employee, as expressed in written agreements or contracts; and | |
| 6. | Whether the individual shares in the profits, losses, and liabilities of the organization. |
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The ADA covers state 6 and local governments and their instrumentalities, employment agencies, labor organizations, and the private sector. It does not apply to the United States government or its wholly owned corporations, Indian tribes, or private membership clubs that are exempt from taxation under I.R.C. § 501(c). 7 Federal government employees are protected by the Rehabilitation Act of 1973. The ADA contains a ministerial exception that allows religious organizations to give "preference in employment to individuals of a particular religion" and to "require that all applicants and employees conform to the religious tenets of such organization." 8
The ADA does not provide a basis for imposing liability on employees in their individual capacities. 9
Although the ADA applies to state governments, the United States Supreme Court held that the ADA's abrogation of state sovereign immunity was ineffective, and therefore suits by state employees to recover money damages or requesting injunctive relief related to a state's alleged failure to
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comply with title I of the ADA are barred by the Eleventh Amendment. 10 However, this does not...
