In a recent victory for a medical practice, the U.S. Court of Appeals for the Seventh Circuit affirmed the lower court's decision that a physician partner in a Wisconsin medical practice was an employer not subject to the protections afforded to employees under the Americans with Disabilities Act (ADA), the Rehabilitation Act of 1973 or Title VII of the 1964 Civil Rights Act. Bluestein v. Cent. Wis. Anesthesiology, S.C., 2014 U.S. App. LEXIS 19760, No. 13-3724 (7th Cir. Oct. 15, 2014).
The plaintiff doctor in this case was injured in a kayaking accident and requested a leave of absence to recover from the injury. After providing various accommodations and allowing the physician to utilize paid leave time, the medical practice voted not to provide another four months of leave and to instead either terminate the physician's employment or allow her to resign from her position. After the doctor did not resign, she was terminated by the medical practice. She then brought suit for discrimination under the ADA, Rehabilitation Act and Title VII.
The district court considered the six factors set forth by the U.S. Supreme Court in Clackamus Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003), and found the plaintiff was an employer rather than an employee. The Seventh Circuit affirmed the granting of summary judgment for the medical group and distinguished its determination from that made in EEOC v. Sidley Austin Brown & Wood, 315 F.3d 906 (7th Cir. 2002), in which the court found that a group of law firm partners were "employees" who could pursue age discrimination claims against the defendant law firm. In contrast, the court explained that the plaintiff was part of the board at her medical group that voted on all major decisions at the practice and that four of the six factors identified in Clackamus weighed in favor of determining the plaintiff was an employer, not an employee. The court explained that the board of the medical group comprised of all 16 partners at the plaintiff's practice and that the board voted on all major decisions, including setting policies and procedures for the practice. The court determined that the fact that the plaintiff found herself in the minority on most of the votes by that group of 16, including the board vote to deny her leave, did not change her from an employer into an employee. The court noted also that the partners in the plaintiff's medical practice shared equally in profits and losses and that no one supervised her work at the practice. In the Sidley Austin case, the partners at issue were not part of the executive committee that made all major firm decisions, nor did they have the right to vote for the members of the executive committee. These partners also had no ability to vote concerning their own fate at the firm. Therefore the court in that case ruled that some shareholders of professional corporations should be considered employees that are entitled to the protections afforded to employees under federal discrimination laws.
Each of these decisions, including the most recent decision in Bluestein, makes it clear that an individualized analysis needs to be undertaken of the management structure and control exerted by any individual partner before a determination can be made as to whether that partner will be considered an employer or employee. Law firms, medical practices, and other professional corporations, need not assume that every partner is an employee subject to discrimination laws, but they also cannot assume either that all partners will be considered employers that are not subject to the protections of discrimination laws.