This case involves an employer that fired its employee based on its owner’s irrational conviction that the employee would contract Ebola on her vacation to Ghana. While characterizing the employer’s behavior as “woefully ignorant” and “deplorable,” the district court nevertheless construed the Americans with Disabilities Act (ADA) narrowly to hold that the termination did not violate the employee’s rights under the statute.

The appeal thus presents several important questions concerning the interpretation and scope of the ADA. First, it presents the question of whether an employer runs afoul of the ADA’s “regarded as disabled” provisions when it fires an employee because it believes she will imminently contract a disabling illness. Second, it asks whether an employer violates the ADA’s “association” provision by firing its employee for associating with people who it believes have a disabling illness. Finally, the EEOC asks this Court to correct the district court’s erroneous understanding of the EEOC’s obligations as an enforcement agency and as a litigant under the statute.

Resolving these issues impacts not only the parties in this case, but also the EEOC’s enforcement efforts within this Circuit and elsewhere. The EEOC believes that oral argument will assist the Court in its consideration and resolution of these important issues.

TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT. i

TABLE OF CONTENTS. iii

TABLE OF AUTHORITIES. iv

STATEMENT OF JURISDICTION.. 1

STATEMENT OF THE ISSUES. 1

STATEMENT OF THE CASE. 2

A. Course of Proceedings. 2

B. Statement of the Facts. 3

C. District Court’s Decision. 6

STANDARD OF REVIEW... 8

SUMMARY OF ARGUMENT. 8

ARGUMENT. 11

I... Massage Envy Violated the ADA when It Terminated Lowe Based on Its Unfounded Fear that She Would Contract Ebola After She Refused to Forego Visiting Her Sister in Ghana. 11

A. Massage Envy Terminated Lowe Because It Regarded Her as Imminently Disabled, in Violation of the ADA. 11

B. Massage Envy Terminated Lowe Because It Anticipated She Would Associate with People in Ghana Who Had Ebola, in Violation of the ADA. 27

II.. The District Court Erroneously Held that the EEOC Must “Exhaust Administrative Remedies” Before Filing Suit and that the Scope of the EEOC’s Complaint Is Limited by the Allegations in the Original Charge. 34

CONCLUSION.. 40

CERTIFICATE OF COMPLIANCE. 41

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Page(s)

Cases

American Dental Association v. Cigna Corp.,
605 F.3d 1283 (11th Cir. 2008)......................................................... 8

Beckel v. Wal-Mart Associates,
301 F.3d 621 (7th Cir. 2002)........................................................... 29

Bragdon v. Abbott,
524 U.S. 624 (1998).......................................................................... 23

Cravens v. Blue Cross & Blue Shield,
214 F.3d 1011 (8th Cir. 2000)......................................................... 26

Dark v. Curry County,
451 F.3d 1078 (9th Cir. 2006)......................................................... 26

Den Hartog v. Wasatch Academy,
129 F.3d 1076 (10th Cir. 1997)....................................................... 40

EEOC v. Bojangles Restaurants, Inc.,
284 F. Supp. 2d 320 (M.D.N.C. 2003)........................................... 29

*EEOC v. Caterpillar, Inc.,
409 F.3d 831 (7th Cir. 2005)........................................................... 43

EEOC v. Joe’s Stone Crabs, Inc.,
296 F.3d 1265 (11th Cir. 2002)....................................................... 44

Faidley v. United Parcel Service,
889 F.3d 933 (8th Cir. 2018) (en banc).......................................... 26

*General Telephone Co. of the Northwest, Inc. v. EEOC,
446 U.S. 318 (1980).............................................................. 42, 43, 44

Gregory v. Georgia Department of Human Resources,
355 F.3d 1277 (11th Cir. 2004)....................................................... 46

Ironworkers Local Union 68 v. AstraZeneca Pharmaceuticals, LP,
634 F.3d 1352 (11th Cir. 2011)......................................................... 8

Jackson v. Service Engineering, Inc.,
96 F. Supp. 2d 873 (S.D. Ind. 2000)......................................... 37, 38

Lary v. Trinity Physician Financial & Insurance Services,
780 F.3d 1101 (11th Cir. 2015)......................................................... 8

Marchioli v. Garland Co.,
No. 5:11-cv-124, 2011 WL 1983350 (N.D.N.Y. May 20, 2011)... 38

Monette v. Electronic Data Systems Corp.,
90 F.3d 1173 (6th Cir. 1996)........................................................... 26

Morriss v. BNSF Railway Co.,
817 F.3d 1104 (8th Cir. 2016)....................................... 31, 32, 33, 34

Pereda v. Brookdale Senior Living Communities, Inc.,
666 F.3d 1269 (11th Cir. 2012)....................................................... 28

*Robinson v. Shell Oil Co.,
519 U.S. 337 (1997).................................................................. passim

Sauers v. Salt Lake County,
1 F.3d 1122 (10th Cir. 1993)........................................................... 29

*School Board of Nassau County v. Arline,
480 U.S. 273 (1987).................................................................. passim

Shannon v. New York City Transit Authority,
332 F.3d 95 (2d Cir. 2003).............................................................. 26

*Shell v. Burlington Northern Santa Fe Railway Co.,
No. 15-cv-11040, 2018 WL 1156249 (N.D. Ill. Mar. 5, 2018)..... 23, 24, 25, 33

Smith v. BellSouth Telecommunications, Inc.,
273 F.3d 1303 (11th Cir. 2001)....................................................... 28

Smith v. Midland Brake, Inc.,
180 F.3d 1154 (10th Cir. 1999) (en banc)...................................... 26

Thomas v. Town of Davie,
847 F.2d 771 (11th Cir. 1988)......................................................... 46

Villarreal v. R.J. Reynolds Tobacco Co.,
839 F.3d 958 (11th Cir. 2016) (en banc)........................................ 20

Wilkerson v. Grinnell Corp.,
270 F.3d 1314 (11th Cir. 2001)................................................. 44, 45

Zillyette v. Capital One Financial Corp.,
179 F.3d 1337 (11th Cir. 1999)....................................................... 42

Statutes

*Dictionary Act, 1 U.S.C. § 1......................................................... 20, 36

28 U.S.C. § 451......................................................................................... 1

28 U.S.C. § 1291....................................................................................... 1

28 U.S.C. § 1331....................................................................................... 1

28 U.S.C. § 1337....................................................................................... 1

28 U.S.C. § 1343....................................................................................... 1

28 U.S.C. § 1345....................................................................................... 1

Rehabilitation Act, 29 U.S.C. §§ 701 et seq............................... 9, 22, 23

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17.................................................................................... passim

42 U.S.C. § 2000e-3(a)..................................................................... 28

42 U.S.C. § 2000e-5................................................................... 42, 44

42 U.S.C. § 2000e-5(b).............................................................. 42, 43

42 U.S.C. § 2000e-5(f)(1)................................................................. 42

*Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.... passim

*42 U.S.C. § 12102(1).............................................. 10, 17, 18, 25, 36

*42 U.S.C. § 12102(1)(C)................................................................. 10

*42 U.S.C. § 12102(4)(A)........................................................... 21, 36

42 U.S.C. § 12111(3)........................................................................ 19

42 U.S.C. § 12111(8)........................................................................ 31

42 U.S.C. § 12111(9).................................................................. 26, 31

*42 U.S.C. § 12112(a)............................................................... passim

*42 U.S.C. § 12112(b)(4)................................................. 5, 10, 35, 37

42 U.S.C. § 12112(b)(5)(A)............................................................. 31

42 U.S.C. § 12112(d)(4)(A)............................................................. 31

42 U.S.C. § 12113(a)........................................................................ 19

42 U.S.C. § 12113(b)........................................................................ 19

42 U.S.C. § 12117(a)........................................................................ 42

42 U.S.C. § 12201(a)........................................................................ 22

*ADA Amendments Act of 2008, Pub. L. 110-325........................... 21

Other Authorities

29 C.F.R. pt. 1630, App. § 1630.2(h)............................................. 25, 32

29 C.F.R. pt. 1630, App. § 1630.2(l).................................................... 10

29 C.F.R. § 1630.2(o)............................................................................. 31

*29 C.F.R. § 1630.2(r)................................................................ 19, 25, 31

29 C.F.R. § 1630.9.................................................................................. 31

29 C.F.R. § 1630.14(c)........................................................................... 31

29 C.F.R. § 1630.15(b)(2)...................................................................... 19

Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA (Oct. 17, 2002), at https://www.eeoc.gov/policy/docs/accommodation.html....... 27

Federal Rule of Civil Procedure 12(b)(6)............................................ 8

Federal Rule of Civil Procedure 15(a)(2).......................................... 46

World Health Organization, Ebola outbreak 2014-15, http://www.who.int/csr/disease/ebola/en/ (last visited July 25, 2018)................................................................................................... 4

STATEMENT OF JURISDICTION

The Equal Employment Opportunity Commission (“EEOC” or “Commission”) brought this enforcement action against defendant STME, LLC, doing business as Massage Envy (“Massage Envy”), pursuant to Title I of the Americans with Disabilities Act of 1990, as amended (“ADA”), 42 U.S.C. §§ 12101 et seq. R.1.[1] The district court had jurisdiction under 28 U.S.C. §§ 451, 1331, 1337, 1343, and 1345. The district court entered final judgment on April 16, 2018. R.57. The EEOC timely appealed on May 30, 2018. R.58. This Court has jurisdiction under 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

1. Does an employer violate the ADA’s prohibition on discrimination against individuals “regarded as” disabled when it terminates an employee because it believes she will imminently contract a disabling condition?

2. Does an employer violate the association provision of the ADA when it terminates an employee because it believes the people with whom she will imminently associate have a communicable disability?

STATEMENT OF THE CASE

A. Course of Proceedings

This is an appeal from a final judgment of the district court dismissing this ADA action. On April 26, 2017, the EEOC filed a complaint alleging Massage Envy violated the ADA when it terminated Kimberly Lowe based on its fear that she would contract Ebola when she took a previously approved vacation to visit her sister in Ghana. R.1. Specifically, the complaint alleged that Massage Envy violated the ADA by terminating Lowe because it regarded her as disabled. Id. The EEOC filed a First Amended Complaint (“FAC”) two months later, adding a claim that Massage Envy terminated Lowe because it anticipated she would associate with people in Ghana it believed to be disabled. R.14.

Massage Envy moved to dismiss the FAC, arguing that the EEOC had failed to exhaust its administrative remedies and that the FAC failed to state a claim under the ADA. R.16. The district court concluded that the EEOC had satisfied all exhaustion requirements, R.43 at 4-6, but nevertheless granted the motion to dismiss. It reasoned that the EEOC’s “regarded as disabled” allegation necessarily failed because Massage Envy did not regard Lowe as presently disabled when it terminated her. Id. at 8-9. The court likewise rejected the EEOC’s association claim because it was based on “a potential future association” with persons regarded as disabled rather than an actual, current association with someone known to have a disability. Id. at 11-13.

B. Statement of the Facts

Massage Envy is a wellness franchise that provides massage and skincare services. R.14 (FAC) ¶ 12. Kimberly Lowe began working as a massage therapist for Massage Envy in January 2012. Id. ¶ 13. In September 2014, Lowe requested time off to visit her sister in Ghana. Id. ¶ 17. Roxanna Iorio, Massage Envy’s Business Manager, approved the request. Id. ¶ 18.

On October 22, 2014, following Lowe’s final shift before her vacation, Iorio and Ron Wuchko, one of Massage Envy’s owners, told her she would be terminated if she went ahead with the trip. Id. ¶ 20. Wuchko told Lowe he was worried she would contract the Ebola virus if she went to Ghana and would “bring it home to Tampa and infect everyone.” Id. ¶¶ 21-22. There was an Ebola outbreak in West Africa in 2014, but there were no reported cases of the disease in Ghana, either during the outbreak or thereafter.[2] Despite Wuchko’s threat, Lowe went on her previously planned vacation. Id. ¶ 24. Upon her return, according to the FAC, Lowe was not permitted to resume working at Massage Envy. Id. ¶ 25.

Lowe filed a charge of discrimination with the EEOC alleging she was terminated because Massage Envy perceived her as disabled or as having the potential to become disabled, in violation of the ADA. R.16-1. After conciliation efforts failed, the EEOC filed suit on April 26, 2017, and amended its complaint two months later. R.1; R.14.

The FAC contained two claims. First, it alleged that Massage Envy violated 42 U.S.C. § 12112(a) when it terminated Lowe because it regarded her as disabled. R.14 (FAC) ¶¶ 28-29. Second, it alleged that Massage Envy violated 42 U.S.C. § 12112(a) and (b)(4) when it terminated her “based upon Massage Envy’s fears and beliefs about Ebola and based upon her association with people in Ghana whom Massage Envy believed to be disabled by Ebola.” R.14 (FAC) ¶ 29.

Massage Envy moved to dismiss the FAC on the grounds that the EEOC had failed to exhaust its administrative remedies and that the FAC failed to state a cognizable claim under the ADA. With respect to exhaustion, it asserted, “[b]ecause Lowe never alleged in her Charge, and the EEOC never made any finding that Defendant failed to reinstate or rehire Lowe, or otherwise not permit Lowe to return to work upon her return from Ghana either because it regarded Lowe as disabled or because of Lowe’s actual association with ‘people in Ghana,’” the Commission could not bring suit based on those allegations. R.16 at 3. Regarding the specific allegations, Massage Envy argued that a “regarded as” claim requires the employer to “regard the employee as being presently disabled, not potentially disabled in the future due to voluntary conduct,” and that an association claim requires “specific association with a person known to be disabled.” Id. at 19, 14.

C. District Court’s Decision

The district court granted Massage Envy’s Motion to Dismiss. R.43 at 1. It began by explaining that the EEOC was required to show Lowe had exhausted her administrative remedies before it could sue to vindicate her rights under the ADA. Id. at 4. Thus, the court reasoned, the allegations in the EEOC’s complaint were required to be “like or related to, or gr[o]w out of, the allegations contained in [plaintiff’s] EEOC charge.” Id. at 5 (internal citations and quotation marks omitted). Observing that “the only discriminatory act that the EEOC alleges is Massage Envy’s termination of Lowe,” the court held that it “considers the EEOC’s discrimination claims only to the extent that they apply [to] Lowe’s October 22, 2014 termination.” Id. Accordingly, the court found, Lowe and the EEOC had taken all administrative actions required for the EEOC to bring its complaint. Id. at 5-6.

Turning to the merits of the ADA claims, the court held that the “regarded as” prong of the statute requires an employer to believe an employee is “presently impaired.” Id. at 8 (emphasis in original). It then stated without additional analysis that it “decline[d] to expand the regarded as disabled definition in the ADA to cover cases, such as this one, in which an employer perceives an employee to be presently healthy with only the potential to become disabled in the future due to voluntary conduct.” Id. at 9.

Similarly, the court dismissed the EEOC’s association-based claim because it concluded that such claims require an actual association with someone known to have a disability, rather than “a potential future association” with such a person, and rather than an association with people “who are merely regarded as disabled.” Id. at 11-12. Accordingly, it held that the EEOC failed to state an ADA association claim both because Lowe had not yet had any association with persons in Ghana when she was fired and because, despite Wuchko’s beliefs (which the court characterized as “woefully ignorant” and “deplorable”), none of those as-yet unidentified people actually had Ebola. Id. at 11-13.

STANDARD OF REVIEW

This Court reviews de novo a district court decision to dismiss a case for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Ironworkers Local Union 68 v. AstraZeneca Pharms., LP, 634 F.3d 1352, 1359 (11th Cir. 2011). In making this determination, the court must “accept[] the allegations in the complaint as true and constru[e] them in the light most favorable to the plaintiff.” Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1288 (11th Cir. 2008) (internal citations and quotation marks omitted). This Court “review[s] de novo the interpretation of a federal statute.” Lary v. Trinity Physician Fin. & Ins. Servs., 780 F.3d 1101, 1104 (11th Cir. 2015).

SUMMARY OF ARGUMENT

Massage Envy admitted that it terminated Lowe solely because Wuchko thought she would contract Ebola in Ghana, even though she was not going to a country with any reported cases of the disease. As the Supreme Court has explained, Congress passed the ADA (and its antecedent, the Rehabilitation Act, 29 U.S.C. §§ 701 et seq.) to protect employees from precisely this sort of discrimination based on myths, prejudices, and unfounded fears. See Sch. Bd. of Nassau Cty. v. Arline, 480 U.S. 273, 284 (1987) (noting Congress’s intent to protect employees from “the prejudiced attitudes or the ignorance of others”); see also id. (“[S]ociety’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.”); 29 C.F.R. pt. 1630, App. § 1630.2(l) (noting that Congress intended the “regarded as” prong of the ADA’s disability definition to combat the harmful effects of “unfounded concerns, mistaken beliefs, fears, myths, or prejudice about disabilities”).

Lowe’s termination violated the ADA provisions that forbid employers from discriminating against employees they regard as having a disability. See 42 U.S.C. §§ 12112(a), 12102(1)(C). Because Massage Envy’s fear was based on the idea that Lowe would travel to Ghana and associate with people who had Ebola, the termination also violated the ADA’s prohibition on discrimination based on association with others having a disability. 42 U.S.C. § 12112(b)(4).

The district court rejected both claims because it focused inappropriately on the temporal aspect of the discrimination, reasoning that Massage Envy terminated Lowe because it believed she would imminently contract Ebola from association with others in Ghana but had not done so yet. R.43 at 8-9, 11-12. This was the wrong analysis. The ADA requires courts to construe its provisions broadly to protect employees; it does not matter whether the feared impairment giving rise to the discrimination has already manifested or is expected to do so in the near future.

When enforcing the ADA and effectuating its statutory purpose, courts have routinely rejected such attempts by employers to evade liability through an undue focus on the tense of the statutory language. Adopting Massage Envy’s argument would improperly limit the statute’s coverage, and would also have the absurd result of protecting Lowe if she actually had Ebola but leaving her defenseless in the face her employer’s unfounded belief that she did. This is one of the paradigmatic types of discrimination — based on “myths, fears, and stereotypes” about disability — that Congress had in its crosshairs in enacting the ADA.

In addition, in assessing the FAC, the district court assumed at the outset that the allegations in Lowe’s charge limited the claims the EEOC could bring in its lawsuit. As a matter of law, any such limitation applies only to private litigants, not the EEOC. The court accordingly erred both in construing the ADA in this way and in limiting its consideration of the allegations in the FAC to those arguably raised in Lowe’s charge.

ARGUMENT

I. Massage Envy Violated the ADA when It Terminated Lowe Based on Its Unfounded Fear that She Would Contract Ebola After She Refused to Forego Visiting Her Sister in Ghana.

A. Massage Envy Terminated Lowe Because It Regarded Her as Imminently Disabled, in Violation of the A DA.

The ADA prohibits employers from discriminating against employees they regard as having a disability. See 42 U.S.C. § 12112(a) (prohibiting discrimination on the basis of disability); id. § 12102(1) (defining disability to include both actual “physical or mental impairment” and “being regarded as having such an impairment”). As the Supreme Court has observed, these protections are particularly necessary to guard employees against misperceptions regarding communicable diseases, given that “[f]ew aspects of a handicap give rise to the same level of public fear and misapprehension as contagiousness.” Arline, 480 U.S. at 284.

Given this prohibition, Massage Envy undisputedly could not have lawfully terminated Lowe based on a mere belief — whether correct or incorrect — that she had already contracted Ebola. In that scenario, the statutory prohibition on disability discrimination in the ADA would come into play, and Massage Envy would be forbidden from taking any adverse action against Lowe merely because it believed she had the disease. 42 U.S.C. §§ 12102(1), 12112(a). If the company wanted to exclude her from the workplace because it believed she posed a “direct threat” to others, it would first need to make “an individualized assessment of the individual’s present ability” to safely perform her job, based on “a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.” 42 U.S.C. §§ 12111(3), 12113(a), (b); 29 C.F.R. §§ 1630.15(b)(2), 1630.2(r). In short, an employer must have a reasonable, individualized, objective basis to take such a drastic step against an employee. This focus on reasonableness and individualized inquiry is particularly necessary to combat the myth-based hysteria that can accompany well-publicized but misunderstood outbreaks of disease. Arline, 480 U.S. at 284-85.

The district court held that these statutory protections did not apply to Lowe under the facts alleged in the FAC, because rather than waiting for her to travel to Ghana on October 25 (when Wuchko was certain she would contract the disease), Massage Envy went ahead and fired her on October 22. Contrary to the district court’s ruling, however, the ADA does not shield employers who anticipatorily terminate employees to avoid their statutory obligations. The goals of the ADA and the settled means of interpreting its language make clear that such an insignificant temporal distinction cannot and should not lead to a different outcome.

The district court focused on the statute’s use of the present-tense phrase “being regarded as having such an impairment” to conclude that it applies only to a presently perceived impairment, and not to one that will manifest even a short time later. R.43 at 6-9 (citing 42 U.S.C. § 12102(1)). But the statute does not support, let alone require, such a cramped interpretation. Under the Dictionary Act, “unless the context indicates otherwise … words used in the present tense include the future as well as the present.” 1 U.S.C. § 1; see Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958, 965 (11th Cir. 2016) (en banc) (noting that the Dictionary Act applies to the statutory interpretation of verb tenses). Here, where the phrase at issue includes the verbs “be,” “regard,” and “have,” the Dictionary Act indicates that the ADA applies equally to an impairment the employer believes the employee will imminently contract. Thus, reading the ADA in conjunction with the Dictionary Act, courts effectuating its statutory purpose need not be confined by the straitjacket that a strict reading of verb tense might otherwise impose.

Moreover, far from mandating that the perceived impairment must be thought to have already manifested before the ADA’s prohibitions apply, the ADA’s own statutory language and context instead show that any such restrictive reading is unreasonable. See Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997) (“The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.”). The ADA Amendments Act of 2008 (“ADAAA”) requires courts interpreting the statute to construe disability “in favor of broad coverage of individuals … to the maximum extent permitted” by its terms. 42 U.S.C. § 12102(4)(A). Indeed, emphasizing this breadth of coverage was one of the central ideas animating the ADAAA’s enactment. See ADAAA, Pub. L. 110-325, § 2(b)(1), 122 Stat. 3553, 3554 (noting that the purposes of the ADAAA include “reinstating a broad scope of protection to be available under the ADA”). In light of this directive, the district court erred in holding that the ADA does not apply when the employer believes the impairment will manifest in the future.

The legislative history also makes clear that the ADA should be interpreted to apply to fears of imminent contagion. In passing the ADA (and its antecedent, the Rehabilitation Act), Congress intended to protect employees against “society’s accumulated myths and fears about disability and disease” by ensuring that employers “replace such reflexive reactions to actual or perceived handicaps with actions based on reasoned and medically sound judgments.” Arline, 480 U.S. at 284-85 (interpreting the Rehabilitation Act); see 42 U.S.C. § 12201(a) (“Except as otherwise provided in this Act, nothing in [the ADA] shall be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973.”); Bragdon v. Abbott, 524 U.S. 624, 632 (1998) (“The directive requires us to construe the ADA to grant at least as much protection as provided by the regulations implementing the Rehabilitation Act.”). The Court noted that these protections are particularly important to guard employees against misperceptions regarding communicable diseases, given the widespread fear and misapprehension that can accompany contagions. Arline, 480 U.S. at 284.

In a recent case, Shell v. Burlington Northern Santa Fe Railway Co., No. 15-cv-11040, 2018 WL 1156249 (N.D. Ill. Mar. 5, 2018), the court adopted this argument and concluded that the ADA also applies to an employer’s discriminatory actions taken before a feared impairment manifests. The employer in Shell denied a job to an obese applicant, not because it believed his obesity constituted a current disability, but rather because of its concern that obesity indicated a higher general likelihood of sleep apnea, diabetes, and heart disease. Id. at *4. As the court explained, even though the plaintiff did not have any of those conditions when he was denied employment, BNSF treated him “as if he does suffer from [them].” Id. Because the ADA would have protected the applicant if he actually had the conditions, the court concluded there was no reason the statute should shield the employer from liability “merely because it is engaging in adverse employment actions before an impairment arises. … BNSF is acting based upon an anticipated worst case scenario derived from precisely the sort of myth, fear, or stereotype which the ADA is meant to guard against.” Id. at *5. The court concluded that BNSF’s counterargument that “it should be free to discriminate against those who are likely to have disabilities but have not yet developed them”— the same argument Massage Envy made here, which the district court adopted — “is facially illogical and is antithetical to the protections afforded by the Americans with Disabilities Act and other anti-discrimination statutes.” Id. at *5 n.4.

Massage Envy’s position here is even less defensible than BNSF’s rejected argument in Shell. In that case, the employer based its position on the correlation between the plaintiff’s obesity and its co-morbidities, even if any given disease might not manifest in a particular individual employee. Id. at *4. The court rejected the argument because it so clearly contrasted with the ADA’s individualized protections, id. at *5 n.4, but, if nothing else, the employer at least had some actuarial or medical basis for its discriminatory assumptions. Here, in contrast, the employer terminated Lowe solely due to its unjustified panic about Ebola, unsupported by current medical knowledge or objective evidence regarding the scope of the outbreak, in violation of the ADA and its implementing regulations. 42 U.S.C. § 12102(1), 12112(a); 29 C.F.R. § 1630.2(r). In dismissing the FAC, the district court attempted to address this point by noting that “impairment,” for ADA purposes, “does not include characteristic predisposition to illness or disease.” R.43 at 7 (quoting 29 C.F.R. pt. 1630, App. § 1630.2(h)). Although this is a correct statement of the interpretive guidance, it has no application to this case. The FAC nowhere alleges that Lowe had, or that Massage Envy believed she had, any characteristic predisposition to impairment. Instead, the allegations turn on Wuchko’s belief that travel to Ghana necessarily entailed contracting Ebola. See R.14 (FAC ¶ 22).

Although the precise issue before this Court has not been addressed often, the significance of verb tenses in the ADA has arisen frequently in other contexts. For example, many courts have had occasion to consider the ADA’s reference to “reassignment to a vacant position” among potential reasonable accommodations. 42 U.S.C. § 12111(9). Every circuit to address the issue has concluded that the term “vacant positions” includes not only positions currently vacant but those that will become vacant in a reasonable amount of time. See Shannon v. N.Y.C. Transit Auth., 332 F.3d 95, 104 (2d Cir. 2003) (“[T]he position sought must be vacant within a reasonable amount of time.”); Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1187 (6th Cir. 1996), abrogated on other grounds by Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012) (en banc); Faidley v. United Parcel Serv., 889 F.3d 933, 943 (8th Cir. 2018) (en banc); Cravens v. Blue Cross & Blue Shield, 214 F.3d 1011, 1019 n.5 (8th Cir. 2000); Dark v. Curry Cty., 451 F.3d 1078, 1089-90 (9th Cir. 2006); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1173 (10th Cir. 1999) (en banc).

The time-frame analysis adopted by these courts also tracks the EEOC’s Guidance on the issue. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA (Oct. 17, 2002),^{^[3]} text accompanying nn.81, 87, 89 (“‘Vacant’ means that the position is available when the employee asks for reasonable accommodation, or that the employer knows that it will become available within a reasonable amount of time.”). These courts, like the EEOC, recognize that the ADA’s use of the present tense should be harmonized with the statute’s clearly expressed purpose.

The Supreme Court and this Court have repeatedly taken a similar approach to the verb tenses used in other remedial statutes. These cases recognize that use of the present tense in statutory and regulatory language does not preclude an application to past or future events if such preclusion would conflict with the statutory context. See, e.g., Robinson, 519 U.S. at 345-46 (holding the term “employees” in the antiretaliation provisions of Title VII includes former employees as well, even though the statute explicitly refers only to “employees” and “applicants”); Pereda v. Brookdale Senior Living Cmtys., Inc., 666 F.3d 1269, 1273, 1275 (11th Cir. 2012) (concluding the FMLA is reasonably interpreted as protecting an employee’s pre-eligibility request for post-eligibility leave, because doing otherwise “would violate the purposes for which the FMLA was enacted”); Smith v. BellSouth Telecomms., Inc., 273 F.3d 1303, 1306-07, 1313 (11th Cir. 2001) (holding that the definition of “employee” includes “former employee” for FMLA purposes in light of “Congress’s interest in ensuring that employees may freely exercise the leave rights that the FMLA creates”).

Courts across the country have applied a similar view of Title VII’s antiretaliation provision, which forbids discrimination against an employee “because he has opposed any practice” forbidden under Title VII “or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). Even though the subsection refers literally to retaliation for protected activity that has already occurred, these courts have nevertheless applied it to recognize a cause of action based on such activity that has not yet occurred and, indeed, may never occur. See, e.g., Beckel v. Wal-Mart Assocs., 301 F.3d 621, 624 (7th Cir. 2002) (holding that a threat to fire a plaintiff if she sued “would be a form of anticipatory retaliation, actionable as retaliation under Title VII”); Sauers v. Salt Lake Cty., 1 F.3d 1122, 1128 (10th Cir. 1993) (“Action taken against an individual in anticipation of that person engaging in protected opposition to discrimination is no less retaliatory than action taken after the fact.”); EEOC v. Bojangles Rests., Inc., 284 F. Supp. 2d 320, 328 (M.D.N.C. 2003) (“Even though the language of [Title VII’s anti-retaliation clause] is written in the past tense and appears to assume that protected activity occurred at some point in the past and prior to any retaliation … , it covers preemptive employer actions.”).

Here again, this approach is consistent with the EEOC’s Guidance, which states that an employer may not “threaten[] adverse action against an employee who has not yet engaged in protected activity for the purpose of discouraging him or her from doing so.” EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (Aug. 25, 2016), § I.B & n.4; cf. Robinson, 519 U.S. at 346 (noting the “persuasive force” of the EEOC’s argument that courts should not interpret Title VII to “provide a perverse incentive for employers to fire employees who might bring Title VII claims”).

Robinson, which instructs courts to take account of “the broader context of the statute as a whole,” 519 U.S. at 341, also counsels against the temporal distinction on which the district court relied here. Allowing terminations in situations like Lowe’s would encourage employers to fire all employees they suspect might potentially develop an ADA impairment in the near future. This would, in turn, circumvent the measures Congress created in the ADA to keep disabled employees in the workplace, including making an individualized assessment of the employee’s ability to safely perform her essential job functions, engaging in the interactive process, and providing a reasonable accommodation where required. See 42 U.S.C. §§ 12111(8), (9), 12112(a), (b)(5)(A), (d)(4)(A); 29 C.F.R. §§ 1630.2(o), 1630.2(r), 1630.9, 1630.14(c). It would also undercut Congress’s purpose of replacing “reflexive reactions to actual or perceived handicaps with actions based on reasoned and medically sound judgments.” Arline, 480 U.S. at 284-85.

In the district court, Massage Envy cited Morriss v. BNSF Railway Co., 817 F.3d 1104 (8th Cir. 2016), in support of its argument that Lowe was not covered by the ADA because Massage Envy did not regard her as disabled at the time it terminated her. As an out-of-circuit case, of course, Morriss does not bind this Court. But even when considered solely for its persuasive value, Morriss is inapposite in many respects and unconvincing in any event, and does not justify the district court’s decision.

Morriss involved an employer that revoked a job offer it made to an applicant due to the applicant’s obesity. The plaintiff sued under the ADA, alleging both actual and “regarded as” theories of disability. As to actual disability, the Eighth Circuit held that obesity “must result from an underlying physiological disorder or condition” in order to constitute a qualifying impairment under the ADA, and rejected Morriss’s claim for failure to make that showing. Id. at 1112-13.

Regarding Morriss’s perceived disability claim, the Eighth Circuit affirmed summary judgment in favor of BNSF for several reasons. First, the court found no evidence that Morriss’s employer perceived him as disabled because it did not consider his obesity to be “a condition that met the [ADA] definition of ‘physical impairment.’” Id. at 1113. Second, the court held that the ADA does not forbid discrimination based on an employer’s “assessment that although no physical impairment currently exists, there is an unacceptable risk of a future physical impairment.” Id. (citing the EEOC’s Interpretive Guidance at 29 C.F.R. pt. 1630, App’x § 1630.2(h)).

The distinction the Eighth Circuit attempted to draw in Morriss between current morbid obesity as a mere characteristic and future obesity-related health conditions as ADA impairments is questionable at best. As Shell held in the same context, forbidding discrimination against those who are disabled while simultaneously giving an employer free rein to discriminate against those whom it believes will likely become disabled “is facially illogical” and undercuts the ADA’s protections. 2018 WL 1156249, at *5 n.4. However, the court’s analysis of the regarded-as claim makes some sense in context, given the court’s ruling that the plaintiff’s obesity did not rise to the level of a disability under the ADA. The Morriss court relied in part on the EEOC’s Interpretive Guidance discussed supra at 18-19, which explains that an ADA impairment “does not include characteristic predisposition to illness or disease” based on a non-disabling physical trait like weight or height. Because the court had already concluded that Morriss’s present obesity was non-disabling, its conclusion that any “characteristic predisposition to illness or disease” because of his weight was excepted from ADA coverage is understandable.

This case, however, is profoundly different from Morriss. Lowe had no physical condition, disabling or otherwise, relevant to whether Massage Envy “regarded [her] as” disabled. See supra at 18-19. In addition, Massage Envy terminated Lowe based on its fears of her specific and imminent likelihood of contracting Ebola when she traveled to Ghana, not based on speculation about a possible impairment that might manifest at some unspecified point in the future. Reading Morriss to preclude a claim like the EEOC’s here would effectively allow the “characteristic predisposition” exception to trump the ADA’s most fundamental animating principles of eradicating discrimination based on unfounded myths, fears, and stereotypes about disabilities.

B. Massage Envy Terminated Lowe Because It Anticipated She Would Associate with People in Ghana Who Had Ebola, in Violation of the A DA.

The ADA forbids discriminating against an employee “because of the known disability of an individual with whom” that employee “is known to have a relationship or association.” 42 U.S.C. § 12112(b)(4). The FAC stated a valid claim for relief under the ADA when it alleged that Massage Envy terminated Lowe “based upon her association with people in Ghana whom Massage Envy believed to be disabled by Ebola.” FAC ¶ 29.

The district court dismissed this claim because the FAC did not allege that Massage Envy knew of “a current association between Lowe and individuals in Ghana at the time of Lowe’s termination, because any such association had not yet occurred.” R.43 at 11. The court also noted that the ADA’s association provision is intended “to protect individuals from discrimination based on unfounded stereotypes and assumptions about the known disabilities of the people with whom they associate,” and reasoned that it therefore could not apply to associations “with people who are merely regarded as disabled.” Id. at 12. Both aspects of this part of the court’s ruling misinterpreted the ADA.

For the same reasons described supra at 13-24, the district court’s focus on present associations, to the exclusion of the associations anticipated to occur that motivated Massage Envy’s discriminatory termination of Lowe, was misplaced. Under the Dictionary Act, courts must interpret a statute’s use of the present tense to include the future unless the context indicates otherwise. 1 U.S.C. § 1. Here, far from foreclosing such an interpretation, the context fully supports it, particularly in light of the ADAAA’s directive to interpret the statute’s protections to provide “coverage of individuals … to the maximum extent permitted” by its terms. 42 U.S.C. § 12102(4)(A). Given this statutory emphasis on broad coverage, whether the association triggering the termination was present or instead scheduled to occur imminently should be irrelevant to the result.

The district court also erred as a matter of law in requiring that the association be with someone with an actual, as opposed to a perceived, disability. The plain language of the ADA defines “disability” to include not only having a physical or mental impairment that limits a major life activity, but also “being regarded as having such an impairment.” 42 U.S.C. § 12102(1). By requiring the existence of an actual disability, and refusing to recognize a cause of action for discrimination based on association “with people who are merely regarded as disabled,” R.43 at 12, the district court read the “regarded as” portion of the definition out of the statute. No precedential or logical basis supports this distinction.

Several courts have found that plaintiffs may state a valid ADA claim under § 12112(b)(4) based on association with someone merely regarded as having a disability, even if the assessment of disability is incorrect. In Jackson v. Service Engineering, Inc., 96 F. Supp. 2d 873 (S.D. Ind. 2000), for example, the plaintiff alleged he had been fired, in part, because of his association with his wife, who had a history of liver disease. Id. at 878. The defendant countered that the claim was fatally flawed because the plaintiff’s wife “did not actually have a ‘disability’ within the meaning of the ADA” at the time of the termination — she had had a successful liver transplant with no complications — and therefore did not have the “known disability” required under the subsection. Id. at 879. The court rejected this argument, explaining that the statutory definition of “disability” includes having a record of disability or being regarded as having a disability, and concluding that the plaintiff had provided sufficient evidence that the employer “regarded or had a record of [plaintiff’s wife] as a person with a disability under the ADA.” Id. at 879-82 (applying more stringent pre-ADAAA standard); see also id. at 882 n.6 (noting that plaintiff’s wife’s “actual condition” at the time of his termination “would not be critical” to plaintiff’s theory that she “had a record of disability or that [the employer] regarded her as having a disability”).

Similarly, in Marchioli v. Garland Co., No. 5:11-cv-124, 2011 WL 1983350 (N.D.N.Y. May 20, 2011), the plaintiff alleged he had been terminated because his employer regarded his pregnant girlfriend as disabled. The court noted that “the ADA defines disability to include being ‘regarded as’ disabled,” and explained that the plaintiff could therefore prevail if he could prove that the defendant regarded his girlfriend as disabled and terminated him on that basis. Id. at *6-7. The court ultimately denied the claim because the plaintiff only alleged that his girlfriend was regarded as pregnant, and pregnancy, by itself, is not an impairment as defined under the statute. Id. at *7. But the opinion clearly interpreted the ADA as allowing for an association claim based on an employer’s perception of disability rather than actual disability.

Nor does the district court’s distinction between associates who are actually disabled, as opposed to regarded as disabled, make logical sense. Again, Congress enacted the ADA to guard against unfounded fears, myths, and stereotypes — “the prejudiced attitudes or the ignorance of others,” Arline, 480 U.S. at 284 — relating to disabilities and diseases. As the Supreme Court explained, “[S]ociety’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.” Id. at 284.

The association provision specifically targets such uninformed discrimination from employers, as the legislative history makes plain. In explaining the need for the associational discrimination provision, the House Judiciary Report used the following example: “‘[I]t would be discriminatory for an employer to discriminate against a qualified employee who did volunteer work for people with AIDS, if the employer knew of the employee’s relationship or association with the people with AIDS, and if the employment action was motivated by that relationship or association.’” Den Hartog v. Wasatch Acad., 129 F.3d 1076, 1082 (10th Cir. 1997) (quoting House Judiciary Committee Report, H.R. Rep. No. 101–485, pt. 3, at 38-39 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 461-62). Although this case involves Ebola rather than AIDS, travel rather than volunteer work, and a mistaken belief about disabled associates rather than associates who actually have a disability, the statute still serves the same purpose: to protect an individual from job discrimination arising from ill-informed employer fears about the employee’s associates. The fact that Massage Envy was wrong in believing the people with whom Lowe would associate in Ghana were disabled should not immunize it from liability.

It is no less discriminatory to fire someone based on the belief that her association with all people within a certain geographic area will infect her with a communicable disease than it is to do so because of her present relationship with a specific disabled individual. Nothing in the ADA’s associational discrimination provision supports restricting its protections as the district court did here, and such a distinction has no basis in the language of the statute, its case law, or its legislative history. Indeed, such “prejudiced attitudes,” “ignorance,” and “mythology” are at least as pernicious — if not more so — in a case like Lowe’s, where the discriminatory attitude about disability is both utterly irrational and broadly targeted. We respectfully ask this Court to recognize that the ADA protects American workers from discrimination on this basis.

II. The District Court Erroneously Held that the EEOC Must “Exhaust Administrative Remedies” Before Filing Suit and that the Scope of the EEOC’s Complaint Is Limited by the Allegations in the Original Charge.

In addition to its incorrect interpretation of the scope of the ADA, the district court also expressed an erroneous view of the EEOC’s administrative obligations when bringing suit under the ADA. According to the court, “plaintiffs asserting discrimination under the ADA, including the EEOC, must first exhaust their administrative remedies (or, in the case of the EEOC, demonstrate that exhaustion requirements have been satisfied by the complainant) before bringing suit in district court.” R.43 at 4 (citing, inter alia, EEOC v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1271 (11th Cir. 2002)). This is an incorrect statement of the law, wrongly imposing a private plaintiff’s presuit requirements on the EEOC, and it misapprehends the EEOC’s role in the administrative process. To the extent this erroneous understanding colored the court’s analysis of the EEOC’s ADA claims, it also constitutes grounds for reversal.

The EEOC is required to investigate administrative charges of unlawful employment practices and, if it finds reasonable cause to believe a charge is true, to try to eliminate the unlawful employment practice via conciliation, an informal process of dispute resolution. 42 U.S.C. § 2000e-5(b) (Title VII); 42 U.S.C. § 12117(a) (ADA).[4] If conciliation is unsuccessful, the Commission may bring suit against the employer. 42 U.S.C. § 2000e-5(f)(1). The EEOC is bound by these administrative requirements. See Gen. Tel. Co. of the NW, Inc. v. EEOC, 446 U.S. 318, 325-26 (1980).

Contrary to the district court’s understanding, however, when the EEOC brings suit based on the facts revealed during its investigation, the agency is not strictly constrained by the substance of the employee’s charge. See Gen. Tel., 446 U.S. at 331. Instead, the Commission’s suit may include “[a]ny violations that the EEOC ascertains in the course of a reasonable investigation of the charging party’s complaint.” Id.

In EEOC v. Caterpillar, Inc., 409 F.3d 831 (7th Cir. 2005), the Seventh Circuit explained why “exhaustion of administrative remedies is an issue when the suit is brought by a private party but not when the Commission is the plaintiff.” Id. at 832-33. The exhaustion requirement prevents private individuals from bypassing statutorily mandated EEOC resolution procedures, but “[t]hat is not an issue when the EEOC itself is the plaintiff, which is why a suit by the EEOC is not confined ‘to claims typified by those of the charging party’ .… The charge incites the investigation, but if the investigation turns up additional violations the Commission can add them to its suit.” Id. at 833 (quoting Gen. Tel., 446 U.S. at 331). Thus, although the EEOC must comply with the agency-specific presuit procedures set out in § 2000e-5(b), it is not substantively restricted to the content of the employee’s charge when it files a complaint.

The district court appears to have based its misunderstanding on a single sentence in Joe’s Stone Crabs: “Section 706 of Title VII, the statute under which the EEOC brought this action, requires that a plaintiff, including the EEOC itself, exhaust certain administrative remedies before filing a suit for employment discrimination.” 296 F.3d at 1271 (emphasis added).[5] The Joe’s Court cited two authorities “generally” as support for that proposition: Section 706 itself, 42 U.S.C. § 2000e-5, and Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001). However, neither the statute nor Wilkerson supports the notion that the EEOC, as the enforcement agency, must “exhaust” the same administrative remedies as a private plaintiff or is restricted to the specific allegations in an administrative charge when it sues in court. Rather, Section 706 sets out both the unique requirements applicable to the EEOC and those applicable to private charging parties, and Wilkerson is a private Title VII case that does not address the EEOC’s administrative requirements at all.

Recognizing that the EEOC’s ADA claims were at least partially coextensive with the allegations in Lowe’s charge, the district court did not dismiss them outright on these grounds. However, based on its belief that the EEOC was limited in its permissible allegations to the scope of Lowe’s charge, the court stated it would consider the EEOC’s ADA claims “only to the extent that they apply [to] Lowe’s October 22, 2014 termination.” R.43 at 5. This ruling excluded “any discriminatory conduct occurring after the October 22, 2014 termination date, such as an allegation that it failed to reinstate or rehire Lowe.” Id. This was incorrect as to the EEOC, because any reasonable investigation would have considered Massage Envy’s actions after Lowe’s return from Ghana. And it would have been incorrect even if Lowe had brought this lawsuit as a private plaintiff, because Massage Envy’s refusal to reinstate or rehire her after her return from Ghana was like or reasonably related to the allegations in her charge and was therefore properly exhausted. See Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277, 1280 (11th Cir. 2004) (holding a complaint could go forward when its allegations were “like or related to, or grew out of, the allegations contained in [the] EEOC charge”).

It is not entirely clear how the court thought this limitation affected its decisional process. But at the very least, it explicitly refused to consider the possibility that Massage Envy regarded Lowe as disabled when she returned from her trip.[6] Because, when Lowe returned from Ghana, Wuchko would have regarded her as presently or already contagious with Ebola, the element of future impairment would not have been at issue.

Insofar as the court’s legal error curtailed its consideration of the EEOC’s claims, either as alleged in the FAC or as valid grounds for a further amended complaint, it prevented the case from proceeding and therefore warrants reversal.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

/s/ Jeremy D. Horowitz

JEREMY D. HOROWITZ

Attorney

U.S. Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., Room 5SW24J

Washington, D.C. 20507

(202) 663-4716

jeremy.horowitz@eeoc.gov

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the type-volume requirements set forth in Federal Rules of Appellate Procedure Rule 32(a)(7)(B) and 11th Circuit Rule 32-4. This brief contains 7,287 words, from the Statement of the Issues through the Conclusion, as determined by the Microsoft Word 2016 word-processing program, with 14-point proportionally spaced type for text and footnotes.

/s/ Jeremy D. Horowitz

JEREMY D. HOROWITZ

Attorney

U.S. Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., Room 5SW24J

Washington, D.C. 20507

(202) 663-4716

jeremy.horowitz@eeoc.gov

Dated: July 27, 2018

[1] Citations to the EEOC’s Appendix take the form R.[docket entry #].

[2] The outbreak was concentrated in Liberia, Sierra Leone, and Guinea, none of which borders Ghana. World Health Org., Ebola outbreak 2014-15, http://www.who.int/csr/disease/ebola/en/ (last visited July 25, 2018). Côte d’Ivoire, which also reported no cases of Ebola during the outbreak, provides a buffer of several hundred miles.

[3] At https://www.eeoc.gov/policy/docs/accommodation.html.

[4] The ADA incorporates the powers, remedies, and procedures of § 2000e-5 by reference. See Zillyette v. Capital One Fin. Corp., 179 F.3d 1337, 1339 (11th Cir. 1999) (“It is settled law that, under the ADA, plaintiffs must comply with the same procedural requirements to sue as exist under Title VII of the Civil Rights Act of 1964.”).

[5] We also note that, in Joe’s Stone Crabs, an EEOC Commissioner filed the charge triggering the investigation and subsequent litigation (unlike here, where the case began with a charge brought by private party Kimberly Lowe). See 296 F.3d at 1269. In the Commission’s view, it is immaterial what type of charge opens an investigation: the Commission may seek to eradicate any discrimination it uncovers during a reasonable investigation of the charge, including via litigation. Gen. Tel., 446 U.S. at 331. Nonetheless, in Joe’s, the Court may have erroneously reasoned that, because an EEOC Commissioner was acting as a quasi-“charging party,” the statutory requirements for private charging parties applied to the agency.

[6] Believing that Massage Envy violated the ADA when it fired Lowe, the EEOC did not pursue an additional failure to reinstate or rehire claim (although it did refer to Massage Envy’s refusal to allow Lowe to return to work after her trip). To the extent the district court insisted on the existence of a present disability, however, it should have allowed the EEOC to amend its complaint to allege such a claim. See Fed. R. Civ. P. 15(a)(2); Thomas v. Town of Davie, 847 F.2d 771, 773 (11th Cir. 1988) (noting that discretion to dismiss a complaint without leave to amend is “severely restricted” by Fed. R. Civ. P. 15(a) (internal citation and alterations omitted)).