USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 93-1954
CARPARTS DISTRIBUTION CENTER, INC., ET AL.,
Plaintiffs-Appellants,
v.
AUTOMOTIVE WHOLESALER'S ASSOCIATION
OF NEW ENGLAND, INC., ET AL.,
Defendants-Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Martin F. Loughlin, U.S. District Judge]
___________________
____________________
Before
Torruella, Circuit Judge,
_____________
Coffin, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________
_____________________
James P. Reidy, with whom James Q. Shirley
_______________
_________________
Phinney Bass & Green Professional Association were
______________________________________________

and

Sheehan
_______
on brief for

appellants.
Samuel A. Marcosson, Attorney, with whom James R. Neely,
____________________
________________
Jr., Deputy General Counsel, Gwendolyn Young Reams, Associate
___
______________________
General Counsel and Vincent J. Blackwood, Assistant General
______________________
Counsel were on brief for the Equal Employment Opportunity
Commission, amicus curiae.
William
Garza, Cary
LaCheen, Herbert
Semmel, Thomas
_______________
______________
________________
______
Kendricks on brief for American Civil Liberties Union, Gay and
_________
Lesbian Advocates and Defenders and Gay Men's Health Crisis,
amici curiae.
James H. Schulte, with whom Burns, Bryant, Hinchey, Cox &
_________________
______________________________
Schulte, P.A. was on brief for appellees.
_____________
____________________
October 12, 1994

____________________

-2-

TORRUELLA,

Circuit
Judge.
_______________

Plaintiffs-appellants

Carparts Distribution Center, Inc.,

M.

Senter, appeal

their

from

the district

complaint for illegal

under state and federal

Daniel W. Dirsh, and Shirley

court's order

dismissing

discrimination based

on disability

The court granted

judgment under

laws.

Fed. R. Civ. P. 12(b)(6) in favor of defendants.

I.
I.
STANDARD OF REVIEW
STANDARD OF REVIEW
__________________
Our review of dismissal under
is

plenary.

1991).

Roth v. United States,

____
_____________

Fed. R. Civ. P. 12(b)(6)

952 F.2d 611, 613 (1st Cir.

We accept as true all of the allegations in the complaint

and draw

all reasonable inferences

in favor of

the plaintiffs.

Id.
___
II.
II.
BACKGROUND
BACKGROUND
__________
In May 1986, Plaintiff
diagnosed

as

positive").
Acquired

infected with

Human Immunodeficiency

In March 1991,

Immune

Ronald J. Senter ("Senter") was

he was diagnosed

Deficiency

Syndrome

Virus ("HIV

as suffering from

("AIDS").

He

died

on

January 17, 1993.

Senter
executive
Center,

was

the

director, and
Inc.

sole
an

("Carparts"),

shareholder,

employee
an

president,

of Carparts

automotive

distributor incorporated in New Hampshire.

chief

Distribution

parts

wholesale

Since 1977, Carparts has been a

participant in a self-

funded medical reimbursement plan known as Automotive Wholesalers

-2-

Association

of

offered by

New England

the defendants

AWANE,

In October

Plan")

Automotive Wholesalers

Automotive Wholesalers Association

1977.

Plan ("the

Inc. ("AWANE") and its administering

Insurance Plan ("AWANE Plan").

since

Benefit

in this case,

Association of New England,

trust,

Health

of New

England, Inc.

Senter was enrolled in

1990, AWANE

Plan informed

the Plan

members of

including Carparts, of its intention to amend the Plan in

order to

limit benefits

effective January 1,

for AIDS-related illnesses

1991.

to $25,000,

Otherwise, lifetime

benefits under

the Plan were, and are, afforded in the amount of

$1 million per

eligible plan member.

On a number of occasions during and after
had several serious
related.
medical
until

illnesses, many

Senter directly
treatment and

spring

of which were

submitted claims

medications to

or summer

claims on Senter's behalf

of

1989, Senter

1991, when

HIV or

for payment

AWANE and the

Carparts

AIDS

of his

AWANE Plan

submitted the

because he became too sick

or matters

were too complicated for him to do so.

Senter

Carparts

("plaintiffs"

or

alleged,1

that the Trustees of

the Plan were

aware of Senter's

condition

at the time the

Plaintiffs

claim

and

amendments to the

that the

cap

on

"appellants")

plan were adopted.

AIDS-related illnesses

was

instituted by defendants with knowledge that Senter was diagnosed

____________________

1
Following Senter's death, Shirley M. Senter and Daniel W.
Dirsh were appointed co-executors for his estate.
On April 1,
1993, the district court allowed the substitution of the coexecutors for Senter as plaintiffs in this action.
-3-

HIV positive,
medical
expenses

suffering from

expenses
was

and that

instituted in

related

claims that

months.

According

he had
to

AIDS, and subject

the

lifetime

response

to

filed during

plaintiffs, after

to AIDS-related

cap on

AIDS

related

Senter's illness
the

and

previous several

Senter

reached

the

lifetime cap on AIDS related illnesses, defendants breached their

contractual obligation to provide, at a minimum, medical coverage

to Senter for non-AIDS related treatments, by failing, neglecting

or

refusing to make payments

for non-AIDS related

matters in a

complete or consistent manner.

Plaintiffs
lifetime

cap

on

brought

health

instituted by defendants,
the basis

of

rendered

healthcare

providers
out

of

and

that
with

discriminatory

responsible

Senter's behalf

compliance

354-A ("Section

individuals

Such a

with

subjecting Carparts to potential

Ann.

alleging

the

AIDS,

represented illegal discrimination

Carparts
on

action

benefits for

a disability.

allegedly

Carparts

this

for
and

on

provision

payments

to

effectively

put

anti-discrimination

laws,

liability under N.H. Rev. Stat.

354-A"), a state anti-discrimination law,

the Americans with Disabilities Act ("the ADA"), 42 U.S.C.

12101, et seq.
__ ____
The district court dismissed
on July 19, 1993.

all of plaintiffs' claims

This appeal followed.

III.
III.
DISCUSSION
DISCUSSION
__________
A.
A.

Notice of Proposed Dismissal

Notice of Proposed Dismissal
-4-

Plaintiffs first contend that

in dismissing

their complaint

the district court erred

without affording them

the court's intended dismissal.

notice of

We agree.

Plaintiffs commenced this action in the state courts of

New Hampshire ten

days before

the ADA became

asserted claims under state law only.

case

to

federal

court claiming

effective.

They

The defendants removed the

that

the

issues raised

were

governed and preempted by the Employee Retirement Income Security

Act of 1974, as amended, 29 U.S.C.
At
defendants

pretrial

indicated

1001, et seq. ("ERISA").

__ ____

conference

on

their intention

April

to

move

15,

1993,

the

to dismiss

the

pendent claims, and the plaintiffs moved to amend their complaint

to

assert

claims under

and

others,

claims alleging violations of

an

42

amended

The plaintiffs'

granted

the ADA.

they

the ADA.

U.S.C

their complaint

to

include,

Title I and

12112(a), 12182(a).

The

motion was

among

Title III of

defendants filed

objection to the amendment and the district court treated the

defendants' objection as a
P. 12(b)(6).
neither

motion to dismiss under Fed.

R. Civ.

The court dismissed plaintiffs claims, holding that

Title I nor

Title III of

the ADA applied

to this case

because neither defendant, AWANE or AWANE Plan, was an "employer"

with

respect

neither

to plaintiffs

defendant was

as required

a "public

by

Title I,

accommodation" as

and that

required by

Title III.
Where no motion to dismiss has
court may,

been filed, "a district

in appropriate circumstances, note

the inadequacy of

-5-

the complaint and, on its own initiative, dismiss the

complaint.

Yet a

plaintiffs

court may

notice
to
374

not do

so without

of the proposed action and

address the issue."

(1st

Cir.

Pavilonis v.
_________

1973)

at least giving

affording them an opportunity

Literature, Inc. v. Quinn, 482 F.2d 372,

________________
_____
(internal citations

King, 626 F.2d

____

omitted);

1075, 1078 & n.6

see also
_________

(1st Cir.), cert.

_____

denied, 449 U.S. 829 (1980).

______

Although AWANE filed an objection to plaintiffs' motion

to

amend

AWANE's

the complaint,
objection,

issues regarding
district

neither

plaintiffs
filing

Title I and Title

opportunity

to the

their claims

prior to the court's

P. 12 (b)(6).

response

the

III of the ADA

to

substantive

on which the

The court also failed

notice of its proposed dismissal,

to respond

complaint regarding

filed a

addressed

court based its dismissal order.

to give plaintiffs any

R. Civ.

and

perceived shortcomings
under Title

in their

and Title

order dismissing the case pursuant

The court's failure to

or any

III

to Fed.

give such notice

alone

justifies reversal of this case.

at 374.

We also find,

however, that the court's

erroneous as a matter of law.

by

interpreting

Title

See id.
___ ___

and

of

the

ADA

are

dismissal was

The district

Title III

excessively limited applications.

interpretation

See Literature, 482 F.2d

___ __________

of

the

court erred
ADA

to have

Questions regarding the proper

sure

to

arise

on

remand.

Therefore, we feel that timely guidance is appropriate.

B.
B.
Plaintiffs

Title I of the ADA

Title I of the ADA

contend that

the

district court

erred in

-6-

finding that defendants were not "covered entities" under Title I

of the ADA.
Title I of the ADA, entitled "Employment" provides:
No covered
entity shall discriminate
against a qualified individual with a
disability[2] because of the disability
of such individual in regard to job
application
procedures,
the
hiring,
advancement, or discharge of employees,
employee compensation, job training, and
other terms, conditions, and privileges
of employment.
42 U.S.C.

12112(a).

"Covered entity" is defined as "an employer, employment

agency, labor organization, or joint labor-management committee."

42 U.S.C.

12111(2).
As the

unlawful for a

district court noted, this

covered entity

disability against

to discriminate on

a qualified
other

provision "makes it

individual with a

of

disability in

regard

to, among

virtue

of employment, whether or not administered by the covered

entity," see 29 C.F.R.

___
as

that

benefit."

provided

by

things, fringe

the basis

benefits, available

by

1630.4(f), and "[h]ealth insurance such

the

defendants

Carparts Distribution Ctr.

__________________________

Ass'n, 826 F. Supp. 583, 585

_____

is

considered

a fringe

v. Automotive Wholesaler's
_______________________

(D.N.H. 1993).

The district

court

found, however, that because neither defendant was an employer of

Senter, neither entity qualified as a "covered entity" as defined

____________________

2
For purposes of this appeal, we assume that Senter is a
"qualified
individual with
a disability."
We
make no
determination as to whether defendants' cap on benefits in the
present case constitutes "discrimination" based on a disability.
-7-

by the ADA and

Title

therefore neither was subject to

I of the ADA.

interpreting
employers

We believe that the district court erred by

Title I

who

liability under

of the

discriminate

ADA to
with

permit suits
respect

to

only against

the

terms

and

conditions of employment of their own employees.

In making our determination we look for guidance to the

Civil Rights Act of 1964, as amended, 42 U.S.C.

2000-e, et seq.
__ ____

("Title VII") and cases

interpreting that statute.

significant

between

difference

"employer" in the
(Title

VII)

two statutes.

with
____

42

Interpretive Guidance on

U.S.C.
Title I

the

definition

Compare 42
_______

of

term

2000e(b)

The

published by

the

Title VII provides:

The term "employer"
means a
person
engaged in an industry affecting commerce
who has fifteen or more employees for
each working day in each of twenty or
more calendar weeks in the current or
preceding calendar year, and any agent
of such a person . . . except that during
the first year after March 24, 1972,
persons having fewer than twenty-five
employees (and their agents) shall not be
considered employers.

42 U.S.C.

is no

(ADA).3

____________________
3

the

U.S.C.

12111(5)(A)
of the ADA,

There

2000(e)(b).

The term "employer" is defined in the ADA as:

A person engaged in an industry affecting
commerce who has 25 or more employees for
each working day in each of 20 or more
calendar
weeks
in
the current
or
preceding calendar year, and any agent of

such person.
42 U.S.C.

12111(5)(A).
-8-

Equal

Employment

that

Opportunity

Commission ("EEOC"),

the term "employer" is "to be

the

ADA that

35,740

[it is]

(1991) (to

be

given under
codified

(Interpretive Guidance on

at

establishes

given the same meaning under

Title VII."4
29

56

C.F.R.

1630.2(a)-(f)).

Fed. Reg.

1630,

App.)

See Meritor Savings

___ ________________

Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986) (EEOC's interpretive

__________
______
guidelines "while not
their

controlling upon the

which courts and

guidance")

(internal

Additionally,
remedies

Title I

litigants may properly

quotations
of

the ADA

and procedures" of Title

and

The
employers

issue before

of Senter

us

provides

within the

ADA

and

therefore

"powers,

to claims of

42 U.S.C.

12117(a).

whether defendants

common sense

whether they can be considered "employers"

the

omitted).

that the

VII shall apply

is not

resort for

citation

discrimination under Title I of the ADA.

of

of

authority, do constitute a body of experience and informed

judgment to

courts by reason

subject

of the

were

word, but

for purposes of Title

to

liability

for

discriminatorily denying employment benefits to Senter.

any legal
purposes

theory defendants could be

of

Title

opportunity

to

I,

amend

If under

considered "employers" for

then

plaintiffs

their

complaint

should
to

be

allege

given
the

an

facts

establishing the application

of that theory to the present case.

Plaintiffs

we agree, that

have argued, and

considered Senter's "employers," and

defendants could be

therefore may be subject to

____________________

4 The EEOC is the agency entrusted by Congress to administer and

enforce the employment provisions of the ADA.
42 U.S.C.
12116-17.
-9-

liability

under Title

I,

under

any

one

of

at

least

three

theories.
First,
functioned as
health

defendants

would

Senter's "employer"

be

"employers"

with respect to

if

they

his employee

care coverage, that is, if they exercised control over an

important aspect of his employment.

Annuity Ass'n, 691 F.2d 1054,
______________
rem'd on other grounds, 463
________________________

See Spirt v. Teachers Ins. &

___ _____
_______________

1063 (2d Cir.

U.S.

1982), vacated and

___________

1223 (1983),

reinstated and
______________

modified on other grounds, 735

___________________________
denied,
______

469 U.S.

881 (1984)

under Title VII) ("term

to encompass
individual
that

(interpreting the

employment opportunities,

party may technically be

director

F. Supp.

of State agency

term "employer"

sufficiently broad

regardless

described as an

of any

of whether

'employer' of an

term has generally been defined

common law.") (internal quotation

Hackett, 602
_______

1984), cert.
_____

significantly affects access

aggrieved individual as that

v.

(2d Cir.

'employer,' . . . is

any party who

to

F.2d 23

at

and citations omitted); Barone

______

481, 483

(D.R.I. 1984)

that administered

(court found

disability benefits

for State employees liable under Title VII even though agency did
not employ
limited

the plaintiffs, stating

"Title VII liability

is not

to the entity which issues pay checks to the employee");

Baranek v. Kelly, 630 F. Supp. 1107,

_______
_____
home care agency that

1113 (D. Mass. 1986) (state

had "the 'means and authority'

to control

discriminatory employment practices" of regional employers was an

"employer"

under Title VII

because it

control over an employment situation").

-10-

"exercise[d] significant

If AWANE and AWANE Plan exist solely for the purpose of

enabling

entities

such

responsibility to provide
they are so

as

Carparts

to

delegate

health insurance for their

intertwined with

those entities that

employees,

they must

I of the

ADA.

be

deemed

an "employer" for

Spirt,
_____

691 F.2d at 1063 (finding that an annuity association and

an

purposes of Title

their

See
___

equities fund "which exist solely for the purpose of enabling

universities
retirement

delegate

benefits

intertwined
deemed

to

with

for

their

responsibility

their

employees,

those universities

an 'employer' for purposes

. .

to

provide

so

closely

that they

must be

are

of Title VII").

Relevant to

this inquiry is whether defendants had the authority to determine

the

level

of benefits

that

would

employees and whether alternative

to

Carparts'

with Carparts.

If defendants

the authority to determine the level of benefits, they would

be acting as an
of

provided

health plans were available to

employees through their employment

had

be

the

employer who exercises control over

employment

determination is

relationship.5

Also

whether Carparts shares

this aspect

relevant

in the

to

this

administrative

responsibilities that result from its employees' participation in

AWANE and AWANE
would

tend

Plan.

to suggest

See id.
___ ___
that

Such sharing of responsibilities

Carparts

and

defendants

are

so

____________________
5

In contrast,

insurance companies which merely sell

a product

to an employer but do not exercise control over the level of

benefits provided to employees could not be deemed "employers"
under this rationale.
Where alternative health plans are
available, it could not be said that defendants controlled this
aspect of the employment relationship and therefore, they would
not be deemed "employers" under this rationale.
-11-

intertwined

as to

respect

to

health care

allowed

to proceed

these questions.

be

acting

benefits.

can

For

together

as an

Only

"employer"

if the

plaintiffs develop

litigation is

a record

purposes of Fed. R. Civ.

with

to answer

P. 12(b)(6), the

possibility of a claim is enough to defeat dismissal.

Second, even

if the defendants did

not have authority

to determine the level of benefits, and even if Carparts retained

the

right to control the

manner in which

the Plan administered

these benefits, defendants would still be rendered "employers" of

Senter
act

on

if defendants
behalf of

are "agents" of

the

entity in

a "covered

the matter

administering employee health benefits.7

responsibility

for

employee

benefits

entity,"6 who

of

providing and

Just as "delegation of
cannot

insulate

discriminatory [retirement benefits] plan from attack under Title

VII,"

Spirt, 691
_____

F.2d

at

1063,

discriminatory health benefits

neither

plan under

can

it

Title I

insulate
of the

ADA.

See
___

id.
___

(recognizing

administered

by

that

an

"exempting

employer

would

plans

not

seriously

actually

impair

the

effectiveness of Title VII").

Third, under
discriminate against
. . . in

102(a)

of the ADA, an employer

a "qualified

individual with a

regard to" specified enumerated

may not

disability

aspects of employment.

____________________
6

The district court found that Carparts is a "covered entity."

7 Like Title VII, Title I of the ADA applies to "any agent" of a

"covered employer." 42 U.S.C.
12111(5)(A) (ADA); Los Angeles
___________
Dept. of Water & Power v. Manhart, 435 U.S. 702, 718 n.33, (1978)
______________________
_______
(Title VII).
-12-

42 U.S.C.
circuit, have

12112(a).

number of cases, although

interpreted analogous

provisions of Title

apply to actions taken by a defendant against

not

technically an employee of

Sibley Memorial Hospital v.

_________________________
Cir.

1973),

the court

Wilson, 488
______
VII

VII to

a plaintiff who is

that employer.

applied Title

not in this

For example, in

F.2d 1338,
to a

1341 (D.C.

hospital which

refused
though

to assign a private

male nurse to

female patients even

the nurse was technically not an employee of the hospital

but was an employee

be understood as

of a particular patient.

holding at

We

this time that

do not want to

there is

automatic

coverage wherever one who is an employer of a requisite number of

persons takes

some action that

entity; a great deal

affects the employee

may depend on circumstances.

of another
At the

same

time, we think it premature to rule out the possibility that when

additional facts are developed,
to that in

Sibley might be
______

a claim under Title I

made out.

Stouder Memorial Hospital, 936

__________________________

analogous

See also Christopher

________ ___________

F.2d 870, 875

(6th Cir.

v.

1991),

cert. denied, 112 S. Ct. 658 (U.S. 1991) (interpreting Title VII,
_____ ______
court stated that "a
one

who

plaintiff is protected if the

significantly

employment

affects

opportunities")

access

(internal

omitted); Doe on behalf of Doe v.

_____________________
411,

422

(7th Cir.

of

any

defendant is
individual

quotations and

citations

St. Joseph's Hosp., 788

__________________

1986) (argument

that

to

plaintiff is

F.2d

not an

employee of defendant employer is not dispositive under Title VII

because

"[t]here are no

indications that

[language proscribing

discrimination by an employer against] 'any individual' should be

-13-

read to mean only an employee of an employer").

Plaintiffs
entities"

alleged

that

for purposes of the

prematurely

dismissed

defendants

ADA.

plaintiffs'

Because

were

"covered

the district court

complaint without

affording

them an opportunity to address the issues upon which the district

court relied
complete

for its dismissal,

for

us to determine

employer for purposes of

be

given

an

the record is

whether defendants were

Title I.

opportunity to

not sufficiently

On remand,

address

this

Senter's

plaintiffs should
issue

so that

the

district court can make a determination as to defendants' Title I

status.8
C.
C.

Title III of the ADA

Title III of the ADA

Title III of the ADA provides:

(a).

General Rule. No individual shall

General Rule
be discriminated against 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 by any person who owns,
leases (or leases to), or operates a
place of public accommodation.
42 U.S.C.

12182(a).
Prohibited discrimination under Title III

denial,

on

benefit

from

the

basis of

the

____________________

disability,

goods, services,

of the

privileges,

includes the

opportunity

to

advantages

or

8
We recognize defendants' claim that a number of the factual
allegations advanced in the briefs supporting the appeal are not
alleged in the complaint.
Our view, however, is that in the
present procedural circumstances the opportunity should have been
given to flesh out the complaint with more detailed allegations.
If on remand the plaintiffs are unwilling or unable to do so,
that will be a quite different matter.
-14-

accommodations

of an

entity.

42

U.S.C.

12182(b);

28 C.F.R.

36.202.
The

district

court

interpreted

accommodation"

as "being limited

with

physical

definite

enters for the purpose

services therein."

the

to actual

boundaries

which

term

physical structures
a

person physically

of utilizing the facilities or

Because

"public

obtaining

the court found that neither

of the

defendants possessed those characteristics, it dismissed Senter's

Title

III claim.

erred

in finding

Plaintiffs
that Title

contend that
III of

the district

the ADA

did not

court

apply to

defendants because they were not places of "public accommodation"

within the meaning of the Act.
Whether

establishments

limited to

actual

impression

in this Circuit.

of "public

physical structures

is a

accommodation" are
question of

For the following

that they are not so limited and remand to the

first

reasons we find

district court to

allow

plaintiffs

the

opportunity

supporting their view

to adduce

that the defendants are

further

evidence

places of "public

accommodation" within the meaning of Title III of the ADA.

We begin our analysis by looking at the language of the

statute.

Sierra Club v.
___________

Larson, 2 F.3d
______

462, 467 (1993).

The

definition of "public accommodation" states that "[t]he following

private

entities

are

considered

purposes of this subchapter,

affect commerce-"
includes

public

accommodations

if the operations of such

and then

provides an illustrative

for

entities

list which

a "travel service," a "shoe repair service," an "office

-15-

of

an

accountant,

"professional

or

office

lawyer,"

of

service establishment[s]".

42 U.S.C.

terms do not

have

structures for

meaning

"insurance

healthcare

meaning of the
physical

an

provider,"

office,"
and

12181(7)(f).9

"other

The plain

require "public accommodations"

persons to

enter.

Even

to

if the

of "public accommodation" is not plain, it is, at worst,

ambiguous.

This

ambiguity,

regulations

and public

considered

policy concerns,

together

with

persuades us

agency

that the

phrase is not limited to actual physical structures.

By
services

including

considered

"travel

"public

service"

among

accommodations," Congress

contemplated that

"service establishments" include

services which do

not require

actual physical structure.

the

a person to

physically enter

one

the

imagine

existence

establishments conducting

business

providing

their customers to

utilize

their services.

an

without requiring their customers

to obtain their services.

facilities for

clearly

providers of

to enter an office in order

easily

of

Many travel services conduct business

by telephone or correspondence

can

list

by mail

Likewise,

of

other

service

and

phone

without

enter in

order to

It would be irrational to conclude that

persons who enter an office to purchase services are protected by

the

ADA, but

telephone or by

persons who

purchase the

mail are not.

Congress

same services

over the

could not have intended

such an absurd result.

____________________
9
The defendants are private
insured plan.
They have not
affects commerce.

entities
disputed

that operate a selfthat their operation

-16-

Our

interpretation

is

also

consistent

with

the

legislative

history of the

"invoke

the sweep of

address

the major

people with
enacted to
for the

ADA.

The

purpose of the

Congressional authority . .

areas of

discrimination faced

disabilities,"
"provide a

42 U.S.C

elimination of

42 U.S.C.

III of the ADA,

is "to bring individuals with

12101(b)(1).

and social mainstream of

clear,

balanced, and

101st

Cong., 2d Sess.,

pt. 2, at

available to

was

with

purpose of Title

disabilities into

American life . .
H.R.

. in a

Rep. No.

485,

99 (1990), reprinted in 1990

_____________

In drafting Title III, Congress intended

that people with disabilities

and services

The ADA

national mandate

The

reasonable manner."

U.S.C.C.A.N. 303, 381.

goods

day-to-day by

discrimination against individuals

disabilities."

the economic

. in order to

12101(b).

clear and comprehensive

ADA is to

offered by

those who do

have equal access to the

array of

private establishments

and made

not have

disabilities.

S.

Rep. No.

116, 101st Cong., 1st Sess. at 58 (1989).

Beyond our threshold determination, we must
care.

tread with

Some of the critical language of Title III is both general

and ambiguous--for

example, a key provision

based

on a disability "of

class

to participate

facilities,
entity."

42

U.S.C.

the opportunity of

in or

privileges,

concerns the denial

benefit from

advantages,

or

12182(b)(1)(A)(1).

the

the individual or

goods, services,

accommodations
As

a matter of

of

an

bare

language, one could spend some time arguing about whether this is
intended

merely to provide access to whatever product or service

-17-

the subject entity may offer, or is intended in addition to shape

and

control which products and services may be offered.

Indeed,

there may be areas in which a sharp distinction between these two

concepts is illusory.
One who
the

operations

simply reads the

of Title

impression

that

sense

either

of

accommodation

it is

Committee Report

III could

easily

primarily concerned

physical

or something

access

to

analogous, such

describing

come away

with the

with access
place

of

as access

time, there

is

nothing in

that

history that

public

provided

through telephone lines, messengers or some other medium.

same

in the

At the

explicitly

precludes an extension of the statute to the substance of what is

being

offered.

Suppose, for

example, a company

distributes tools provides easy access to its

persons

that makes and

retail outlets for

with every kind of disability, but declines to make even

minor adjustments in the design of

the tools to make them usable

by persons with only quite limited disabilities.

The statute's treatment of

insurance is a good example

of these ambiguities.

On the one hand, the ADA carves out a safe

harbor

anyone who

of

sorts for

is

"an insurer,

hospital, or

medical service
agent,

or

company, health maintenance organization, or any

entity that

administers

organizations . . . ." 42 U.S.C.

(c)(2),

(3).

One might

Title III would

plans.

plans, or

12201(c)(1).

there is

some

similar

See also id.

________ ___

initially suppose that

otherwise cover the

However,

benefit

this is because

substance of the

indication in

at

insurance

the legislative

-18-

history that the industry received this exemption not because its
policies would
III, but

otherwise be substantively regulated

because "there is

some uncertainty

under Title

over the

possible

interpretations of the language contained in titles I, II and III

as it

applies to insurance .

. . ."

See S. Rep.
___

No. 116, 101

Cong., 1st Sess. at 84 (1989).

We think that at this
the

stage it is unwise to

possibility that the plaintiff

___________

kind of

claim under

Title III

may be able

go beyond

to develop some

even though this

promising vehicle in the present case than Title I.

may be

a less

Not only the

facts but, as we have already noted, even the factual allegations

are quite sparse.

In addition, because of our resolution of

the

Title I

claims, this

further proceedings
the

case.

While

guidance, the

case must

be remanded

regardless of
it is

tempting

nature of the

and is subject

whether Title III

to seek

record and

to

to

remains in

provide further

the way the

issues are

addressed in the appellate briefs make it imprudent to do so.

Neither Title III nor its implementing regulations make

any mention of physical boundaries or physical entry.

Many goods

and

mail

services are

sold

over

the

customers never physically entering

telephone

or

by

the premises of a commercial

entity to purchase the goods or services.

To exclude this broad

category of businesses from the reach of Title III and limit

application
must

of Title

enter to obtain

purposes

of

the ADA

III to

physical structures

goods and services would

and

would

with

the

which persons

run afoul of the

severely frustrate

Congress's

-19-

intent that individuals with

services, privileges and

disabilities fully enjoy the goods,

advantages, available

to other members of the general public.

IV.
IV.

indiscriminately

MISCELLANEOUS
MISCELLANEOUS
_____________
Plaintiffs also alleged a
Ann.
and

354(A), referred
of the

Plaintiffs
serves as an
should not

to as the "Law

Civil Rights
claimed

violation of N.H. Rev. Stat.

in the

Act of

Against Discrimination,"

1965, 42

district

court

U.S.C.

1985(3).10

that Section

354-A

enforcement vehicle for the ADA and for that reason

be preempted by ERISA, 29 U.S.C.

1144.

Because the

district court found that the ADA did not apply to defendants, it
reasoned that no disruption
result by holding
then

in the enforcement of the

that Section

found Section

354-A

354-A is preempted.

preempted by

ERISA

ADA would
The

court

with respect

to

____________________

10
Plaintiffs claimed that Senter, being afflicted with AIDS,
was a member of a discrete and insular minority deserving of
protected class status under 42 U.S.C.
1985(3).
Plaintiffs'
Section
1985 claim alleged
that defendants
conspired to
discriminate against Senter through the institution of a lifetime
cap on AIDS-related medical benefits.

The district court noted that under section 1985(3) "[t]here

must
be
some racial,
or perhaps
otherwise class-based,
invidiously discriminatory animus
behind the
conspirators'
action" and
that appellants
"must identify a
source of
congressional power to reach the private conspiracy alleged. . .
." Carparts Distribution Ctr., 826 F. Supp. at 587 (internal
___________________________
quotations and citations omitted).

Because the district court ruled that defendants were not

protected by either the employment provisions or the public
accommodation provisions of the ADA, it further found that
appellants failed to identify a source of congressional power to
reach the
private conspiracy they
alleged and therefore,
dismissed their complaint.
-20-

plaintiffs' cause of action.

The district
was based
provisions

court's decision to dismiss

primarily on its
nor the

finding that neither

public accommodation

applied to defendants.

dismissing plaintiffs Section

the employment

provisions of

Because we find that the

erred in dismissing plaintiffs'

these claims

the ADA

district court

ADA claims, we vacate its

354-A claim and

42 U.S.C.

order

1985

and remand these claims to the district court for reconsideration

in light of this opinion.
V.
V.
CONCLUSION
CONCLUSION
__________
Because

the

district

court

complaint without providing notice

erred
ADA

in interpreting the term

and

in

concluding

dismissed

plaintiffs'

of its intended dismissal and

"employer" under Title

that

defendants

accommodations" under Title III, we hold

were

not

I of the

"public

that the district court

erred in dismissing plaintiffs' complaint.

We vacate
the district court's
order dismissing
_______________________________________________________

plaintiffs' ADA claims and further order that plaintiffs' claims

_________________________________________________________________
under Section 354-A

and 42 U.S.C.

1985 claim be

reviewed and

_________________________________________________________________

reinstated.
We remand for proceedings consistent with this
_________________________________________________________________
opinion.
_______

-21-