Document Type

Article

Publication Date

2004

Abstract

In Clackamas Gastroenterology Associates P.C. v. Wells, the United States Supreme Court established the standards for determining whether a shareholder in a professional corporation ("PC") is an "employee" as defined by Title I of the Americans with Disabilities Act of 1990 ("ADA"). Characteristics the court saw as distinguishing partnerships are the profit sharing, contributions to capital, part ownership of partnership assets, and the right to share in management subject to agreement. Even if the partner's power is insufficient to avoid discrimination, courts should also consider whether the partner is more like an independent contractor in that he or she is not connected or dependent on the partnership either socially or economically. The test for excluding a partner from coverage as an "employee" should be whether by virtue of being a partner, an individual is either: 1) powerful enough economically, socially and/or politically to avoid discrimination; and/or 2) economically and socially independent of the work conducted by the partnership as to be less vulnerable to the effects of discrimination.

Publication Citation

57 SMU L. Rev. 3 (2004).