The Lawletter Vol 36 No 8
Dora Vivaz—Senior Attorney , National Legal Research Group
The Rehabilitation Act, first passed in 1973, was the initial law prohibiting discrimination, and it applied only in the context of federal employment and programs. In a recent case, the court discussed an apparent split in the circuits as to the proper scope of two sections of the Act. Ward v. Vilsak, No. 2:10-cv-00376 KJM KJN PS, 2011 WL 6026124 (E.D. Cal. Dec. 2, 2011).
The first section is § 501, 29 U.S.C. § 791, which governs the employment of disabled individuals by federal agencies and creates a private right of action for federal employees suing for disability discrimination. The second is § 504, 29 U.S.C. §§ 794 and 794a, which prohibits discrimination against disabled individuals by recipients of federal funds. Although the latter section does not, on its face, apply to federal employers, a number of circuit courts have concluded that § 501 and § 504 overlap, such that federal employees would be able to sue under either or both. 2011 WL 6026124, at *13. On the other hand, a number of other circuit courts have concluded that § 501 is the exclusive remedy for federal employees suing under the Rehabilitation Act. Id.
The issue becomes important for federal employees and employers because which section governs determines the elements of the plaintiff's prima facie case. As the court noted, § 501 requires a plaintiff to show only that he or she was discriminated against "because of" his or her disability—rather than "solely because of" his or her disability as is required under § 504. Id. at *14.
In Ward, the defendant argued that the plaintiff could not prove her case because she could not prove that she had not been hired solely because of her disability. Id. at *11. The court concluded that the case was governed by § 501, not § 504, and that, therefore, the plaintiff's burden was only to show that disability discrimination was a motivating factor in the adverse employment action. Id. at *13-14. The court further concluded that, on the facts before it, there was at least a question of fact on the issue. Certainly, given the burdens imposed under the two sections, it makes sense for plaintiffs/employees to bring their claims under § 501, even in circuits that allow claims under either.
