The Lawletter Vol 38 No 12
Because there are a number of federal provisions prohibiting discrimination on the basis of disability, the issue of their respective scopes and how they interplay in various contexts continues to find its way into the courts. The Americans with Disabilities Act ("ADA") itself prohibits discrimination against persons with disabilities in three major areas of public life: (1) employment, public and private, which is covered by Title I; (2) public services, programs, and activities, which are covered by Title II; and (3) public accommodations, which are covered by Title III.
The Seventh Circuit recently addressed the question of whether Title II applies to disability discrimination in public employment, supplementing the remedies provided by Title I, or whether Title I provides the exclusive remedy. Brumfield v. City of Chicago, 735 F.3d 619 (7th Cir. 2013). It noted that there is a split in the circuits on the issue, but ultimately concluded that the reasoning of the courts declining to apply Title II to public employment was more persuasive.
The court began by stating that the Supreme Court has noted the issue but has not addressed it. It then reviewed the law from the circuits, noting that two of the three circuits that have directly addressed the issue have held that Title II unambiguously does not apply to employment-related claims and that several other circuits appear to lean that way, based on their decisions on related matters. The court also pointed out that several circuits have simply implicitly assumed that Title II does apply to employment-related claims, without analysis.
The court acknowledged that the Attorney General has promulgated a regulation stating that Title II does apply to public employment and that, generally, an agency's interpretation of a statute is entitled to deference. The court, however, went on to note that deference applies only where the statute itself is either silent on the matter or ambiguous. After engaging in an analysis of the statute, the court concluded that Title II unambiguously does not apply to employment decisions by state and local governments.
The court first looked at the actual language of Title II, which explicitly applies only to services, programs, or activities of a public entity, and concluded that these terms encompass only "outputs," or delivery to eligible recipients. It concluded that, by contrast, employment involves only internal operations. The court also compared Title II to Title I and concluded that the latter "specifically, comprehensively, and exclusively" addresses disability discrimination in employment, defining qualified individual by reference to employment.
Perhaps the Supreme Court will settle the issue in the near future. In the meantime, the weight of authority seems to indicate that employment-related claims for disability discrimination under the ADA should be brought under Title I and that since Title I requires exhaustion of administrative remedies, care should be taken to ensure that such remedies are timely pursued.