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35 Touro LRev 73
35 Touro LRev 73
35 Touro LRev 73
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THE APPLICATION OF TITLE II OF THE AMERICANS WITH
DISABILITIES ACT TO EMPLOYMENT DISCRIMINATION:
WHY THE CIRCUITS HAVE GOTTEN IT WRONG
William Brooks*
I. INTRODUCTION
73
74 TOURO LAWREVIEW Vol. 35
made clear that it did not intend for Title II claims to cover
discrimination.6
This article will address the issue of whether the ADA
authorizes a disabled litigant to file an employment discrimination
claim against a state or local government pursuant to Title II as to avoid
the shorter limitations period of Title I. It will first review the history
of litigation on the issue. This article will detail why resolution of this
question requires an application of administrative law jurisprudence.
The Attorney General, to whom Congress delegated authority to
implement Title II, has concluded that Title II covers employment.
This article will argue that because the Attorney General has
promulgated a reasonable interpretation of Title II, the interpretation is
entitled to deference.
In concluding that the Attorney General is entitled to deference,
this article will further detail that the rationale courts set forth to
conclude-that Congress clearly intended for only Title I to cover
employment-is not supportable. Moreover, the legislative history of
Title II is clear: Congress intended for Title II to cover employment
discrimination. Accordingly, more than enough support exists for the
Attorney General's conclusion that Title II covers employment
discrimination.
On the other hand, the Attorney General has also promulgated
regulations that can be interpreted to require a Title II litigant to
exhaust administrative remedies even if he files a claim pursuant to
Title II. This article will explain why this regulation promulgated by
the Attorney General is not entitled to deference. Congress spoke
unambiguously on this issue: it wanted the remedies governing Section
504 of the Rehabilitation Act to govern Title II claims and the remedies
governing Section 504 do not require exhaustion of administrative
remedies.
See Transp. Workers Union of Am., Local 100, AFL-CIO v. N.Y.C. Transit Auth., 342 F.
Supp. 2d 160, 174 (S.D.N.Y. 2004).
8 42 U.S.C. § 12112(a) (2018).
9 Id. § 12111(8).
10 Id. § 12112(b).
1 Id. § 12117(a).
12 See, e.g., Transp. Workers Union ofAm., 342 F. Supp. 2d at 171. The statute requires a
litigant to file a charge with the EEOC within one hundred and eighty days of the alleged
unlawful employment practice, except when an aggrieved individual institutes an
administrative charge with a state or local agency that has been authorized to seek relief. In
this situation, a litigant may file an administrative charge within three hundred days. 42 U.S.C.
§ 2000e-5(e)(1).
" 42 U.S.C. § 12131(1)(A).
76 TOURO LAWRE VIEW Vol. 35
14 Id. § 12132(2).
15 Id. § 12133.
16 Id. § 12134(a).
17 Id. § 12134(b).
* The enforcement provisions governing Section 504 of the Rehabilitation Act provide that
the enforcement and hearing procedures governing Title VI of the Civil Rights Act of 1964
shall govern the enforcement of Section 504. The Supreme Court, when it held that Title IX
does not require exhaustion of administrative remedies, recognized that the enforcement
mechanisms of Title IX and Title VI are the same. See Cannon v. Univ. of Chi., 441 U.S. 677,
708 n.41 (1979). Accordingly, courts examining the issue have concluded that Section 504
does not require the exhaustion of administrative remedies. See Transp. Workers Union of
Am., Local 100, AFL-CIO, v. N.Y.C. Transit Auth., 342 F. Supp. 2d 160, 171 (S.D.N.Y.
2004); Peterson v. Univ. of Wis. Bd. of Regents, 818 F. Supp. 1276, 1278-79 (W.D. Wis.
1993).
19 Compare McInerney v. Rensselaer Polytechnic Inst., 505 F.3d 135, 138 (2d Cir. 2007)
(holding that Title II requires a filing of administrative charge within 180 days), with
McCormick v. Miami Univ., 693 F.3d 654, 663-64 (6th Cir. 2012) (holding that Title 11 is
subject to the state's personal injury limitations period of two years); Hunt v. Ga. Dep't of
Cmty. Affairs, 490 F. App'x 196, 198 (11th Cir. 2012) (same); Frame v. City of Arlington,
616 F.3d 476, 489 (5th Cir. 2010) (same).
2019 ADA AND EMPLOYMENT DISCRIMINATION 77
public entity. "20 The regulations further provide that if a public entity
is subject to the jurisdiction of Title I, the regulations of the EEOC set
forth in 29 C.F.R. Part 1630 apply to employment in any service,
program, or activity conducted by the public entity.2 1 The regulations
further provide that if the public entity is not subject to the jurisdiction
of Title I, the regulations governing Section 504 of the Rehabilitation
Act as set forth in 28 C.F.R. Part 41 govern the employment provided
by the public entity. 22
Local Ret. Sys., 707 F.3d 144, 169 (2d Cir. 2013); Elwell, 693 F.3d at 1308; Zimmerman, 170
F.3d at 1175; Scherman v. N.Y. State Banking Dep't, No. 09 Civ. 2476, 2010 U.S. Dist.
LEXIS 26288, at * 29-30 (S.D.N.Y. Mar. 19, 2010); McSherry, 2006 WL 463157, at *10;
43 Brumfeld, 735 F.3d at 628; Elwell, 693 F.3d at 1308; Zimmerman, 170 F.3d at 1175-76;
Maxwell, 787 F. Supp. 2d at 825-26; Brettler, 408 F. Supp. 2d at 655.
80 TOURO LAW REVIEW Vol. 35
49 Brumfeld v. City of Chicago, 735 F.3d 619, 628-29 (7th Cir. 2013) (discussing that
specific language within Title I governing employment situations that Congress omitted in
Title II confirms that Congress wanted to address employment discrimination in Title 1 only);
Mary Jo C., 707 F.3d at 169; Zimmerman, 170 F.3d at 1177; Maxwell v. S. Bend Work Release
Ctr., 787 F. Supp. 2d 819, 825 (N.D. Ind. 2011).
'o Zimmerman, 170 F.3d at 1177; see also Mary Jo C., 707 F.3d at 170, 171; Elwell v. Okla.
ex rel. Bd. of Regents of the Univ. of Okla., 693 F.3d 1303, 1309 (10th Cir. 2012).
s1 Scherman v. N.Y. State Banking Dep't, No. 09 Civ. 2476, 2010 U.S. Dist. LEXIS 26288,
at *32 (S.D.N.Y. Mar. 19, 2010); Brettler v. Purdue Univ., 408 F. Supp. 2d 640, 657 (N.D.
Ind. 2006); Decker v. Univ. of Houston, 970 F. Supp. 575, 579 (S.D. Tex. 1997).
52 Mary Jo C., 707 F.3d at 171; Elwell, 693 F.3d at 1310; McSherry v. Dep't of Labor
&
Indus., No. Civ.A. 1:04-CV-132, 2006 WL 463157, at *11 (M.D. Pa. Feb. 23, 2006).
2019 ADA AND EMPLOYMENTDISCRIMINATION 81
* Elwell v. Okla. ex rel. Bd. of Regents of the Univ. of Okla., 693 F.3d 1303, 1312 (10th
Cir. 2012); Zimmerman,170 F.3d at 1180-81.
11 Elwell, 693 F.3d at 1312.
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9 Elwell, 693 F.3d at 1310; Zimmerman, 170 F.3d at 1177-78; Scherman, 2010 U.S. Dist.
LEXIS 26288, at *32; Brettler, 408 F. Supp. 2d at 559.
60 Zimmerman, 170 F.3d at 1181.
61 Id.
62 Id. at 1182.
2019 ADA AND EMPLOYMENT DISCRIMINATION 83
was not appropriate. 63 For the same reasons, courts determined that
they should accord no weight to the Attorney General's regulations. 64
63 Mary Jo C. v. N.Y. State & Local Ret. Sys., 707 F.3d 144, 171 (2d Cir. 2013);
Zimmerman, 170 F.3d at 1181; Fleming v. State Univ. of N.Y., 502 F. Supp. 2d 324, 333
(E.D.N.Y. 2007).
64 Mary Jo C., 707 F.3d at 171-72; Elwell, 693 F.3d at 1313; Zimmerman, 170 F.3d at 1173;
1178; Fleming, 502 F. Supp. 2d at 333; Scherman, 2010 U.S. Dist. LEXIS 26288, at *33;
Maxwell v. S. Bend Work Release Ctr., 787 F. Supp. 2d 819, 826 (N.D. Ind. 2011); Brettler,
408 F. Supp. 2d at 660.
65 28 C.F.R. § 35.140(a) (2018).
66 City of Arlington v. Fed. Commc'ns Comm'n, 569 U.S. 290, 296 (2013) (quoting Smiley
v. Citibank (South Dakota), N.A., 517 U.S. 735, 740-41 (1996)); see also Chevron, U.S.A.,
Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 -44 (1984).
67 Gonzalez v. Oregon, 546 U.S. 243, 255-56 (2006) (quoting United States v. Mead Corp.,
1 H.R. REP. No. 100-711, at 28 (1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2189.
84 H.R. REP. No. 101-485(11), at 54-58 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 336-
37 (drawing from Section 504 and Title VII in defining terms within Title I of ADA); 42
U.S.C. § 12117 (2018) (applying remedial provisions of Title VII to Title I).
8 See H.R. REP. No. 101-485(11), at 68 (detailing that it did not want to incorporate into
Title I Supreme Court interpretation of Title VII as set forth in in TWA v. Hardison, 432 U.S.
63 (1977), in which the Court held that an employer need not accommodate an employee's
religious beliefs if accommodation would require more than a de minimis cost for employer).
86 See 42 U.S.C. § 12188 (applying remedies of Title II of the Civil Rights Act of 1964 to
public accommodations provisions of ADA); Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d
79, 86 (2d Cir. 2004) (remedies available under Title III of ADA are those that are available
under Title II of Civil Rights Act of 1964).
2019 ADA AND EMPLOYMENT DISCRIMINATION 87
.
shall, solely by reason of her or his disability, be
excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial
assistance. 9 2
Section 504 was critical when Congress drafted the ADA because not
only did both promote the similar goal of extending statutory
protection to disability status, but Congress used Section 504 as the
framework for Title II of the ADA.9 3 When Congress passed the ADA,
a unanimous Supreme Court in ConsolidatedRail Corp. v. Darrone9 4
had interpreted Section 504 to prohibit all employment discrimination
9 Id. at 632.
96 Id. at 634.
9 Id.
98 Id. at 631-37.
9 42 U.S.C. § 12132 (2018).
100 H.R. REP. No. 101-485(11), at 84 (1990), reprintedin 1990 U.S.C.C.A.N. 303, 367; see
also S. REP. No. 101-116, at 42 (1989).
101 See, e.g., Mary Jo C. v. N.Y. State & Local Ret. Sys., 707 F.3d 144, 171 (2d Cir. 2013)
("[W]e are required to disfavor interpretations of statutes that render language superfluous."
(alteration in original) (quoting Conn. ex rel. Blumenthal v. U.S. Dep't of the Interior, 228
F.3d 82, 88 (2d Cir. 2000)); Elwell v. Okla. ex rel. Bd. of Regents of the Univ. of Okla., 693
F.3d 1303, 1307 (10th Cir. 2012) ("[T]he commonsense can of noscitur a sociis . . counsels
2019 ADA AND EMPLOYMENT DISCRIMINATION 89
that a word is given more precise content by the neighboring words with which it is
associated." (alteration in original) (quoting Freeman v. Quicken Loans, Inc., 566 U.S. 624,
634 (2012)); Zimmerman v. Or. Dep't of Just., 170 F.3d 1169, 1177 (9th Cir. 1999) ("[W]here
Congress includes particular language in one section of a statute but omits it in another section
of the same Act, it is generally presumed that Congress acts intentionally and purposely in the
disparate inclusion of exclusion." (alteration in original) (quoting Russello v. United States,
464 U.S. 16, 23 (1983)).
102 N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 528 (1982); see also supra notes 75-90
and accompanying text.
103 See infra notes 108-116 and accompanying text.
04 Accordingly, the failure of courts to examine legislative history, which would enable
courts to place the structure and language of the ADA in its proper context have resulted in
courts examining the structure and language of Title 11 as if Congress drafted the statute from
scratch. See infra notes 108-16 and accompanying text.
105 Bragdon v. Abbott, 524 U.S. 624, 645 (1998); see also Jerman v. Carlisle, McNellie,
Rini, Kramer & Ulrich LPA, 559 U.S. 573, 590 (2010) (copying of same statutory language
into another statute supports inference that Congress understood the meaning of law as it had
been interpreted); Evans v. United States, 504 U.S. 255, 260 n.3 (1992) (discussing that words
transplanted from another statute contains same meaning unless direction to the contrary
exists).
90 TOURO LAWREVIEW Vol. 35
the newer statute, at least when the "language and history" of the newer
statute suggest an interpretation that is not contrary.1 06 Indeed, when
particular words in one statute have been interpreted in a particular
manner and are then used in a second statute, they "become a term of
art" that takes on a particular meaning.1 07
Commercial Workers Union, Local 23, AFL-CIO, 484 U.S. 112, 124-25 (1987); Chem. Mfrs.
Ass'n v. Nat. Res. Def. Council, Inc., 470 U.S. 116, 126 (1987). Ironically, the Supreme
Court's recent criticism of legislative history as a means to decipher congressional intent can
just as easily serve as a basis to criticize the failure of courts to use legislative history to
decipher congressional intent. The Supreme Court has equated resort to legislative history as
"an exercise in 'looking over a crowd and picking out your friends."' Exxon Mobil Corp. v.
Allapattah Servs., Inc., 545 U.S 546, 568 (2005) (quoting Wald, Some Observations on the
Use of Legislative History in the 1981 Supreme Court Term, 68 IOWA L. REv. 195, 214
(1983)). However, resort to the very many rules of statutory construction, the application of
which may, as the issue at hand illustrates, yields different results, is itself like picking out
your friends in a crowd. If a court is going to attempt to decipher congressional intent, then it
may not choose only some modes of analysis, but all modes of statutory interpretation that
may help decipher congressional intent. The failure of courts to rely on legislative history has
resulted in courts failing to understand the context of the language within Title II. As a result,
courts have not applied rules of statutory construction that are most applicable when
deciphering the meaning of statutes that have been taken from other statutes. The result has
been an interpretation of Title II that is at odds with congressional purpose.
92 TOURO LAWREVIEW Vol. 35
121 Mary Jo C., 707 F.3d at 169 (alteration in original) (quoting Garrett, 531 U.S. at 360
n.).
122 Id.; Elwell, 693 F.3d at 1309-10.
123 See generally Garrett, 531 U.S at 356; Brief for Petitioners, Bd. of Trs. of the Univ. of
Ala. v. Garrett, 531 U.S. 356 (2000) (No. 99-1240), 2000 WL 821035; Brief for the
Respondents Patricia Garrett and Milton Ash, Bd. of Trs. of the Univ. of Ala. v. Garrett, 531
U.S. 356 (2000) (No. 99-1240), 2000 WL 1593420.
124 Mary Jo C., 707 F.3d at 169; Elwell, 693 F.3d at 1308; Zimmerman v. Or. Dep't of Just.,
170 F.3d 1169, 1175 (9th Cir. 1999); Scherman v. N.Y. State Banking Dep't, No. 09 Civ.
2476, 2010 U.S. Dist. LEXIS 26288, at *29-30 (S.D.N.Y. Mar. 19, 2010); McSherry v. Dep't
of Lab. & Indus., 2006 WL 463157, at *10 (M.D. Pa. Feb. 23, 2006).
94 TOURO LAW RE VIEW Vol. 35
128 Id.
129 Elwell, 693 F.3d at 1307.
"'o See supra note 89 and accompanying text.
131 See, e.g., H.R. REP. No. 101-485(11), at 84 (1990), reprintedin 1990 U.S.C.C.A.N. 303,
367 (stating that Title II "simply extends the anti-discrimination prohibition embodied in
section 504 to all actions of state and local governments" (emphasis added)).
132 42 U.S.C. § 12132 (2018).
96 TOURO LAW REVIEW Vol. 35
in turn, incorporated the protections of Title IX, would cover any and
all actions by a covered entity.
Nor does the requirement that a Title I litigant must exhaust
administrative remedies necessarily support the inference that
Congress could not have intended for Title II to cover employment
because it permitted Title II litigants to avoid exhausting
administrative remedies.' 3 3 This rationale assumes that Congress
imposed the exhaustion requirement to limit prompt access to the
courts or otherwise impose a procedural hurdle for litigants raising
employment claims. When Congress passed Title VII, this was not the
case. Rather, Congress enacted the enforcement mechanisms of Title
VII to strengthen the ability of the EEOC to reduce discrimination in
the workplace.' 3 4 A comparatively brief statute of limitations period
for any employment claim enhances the ability of the EEOC to
investigate and remedy claims of discrimination. The short limitations
period prevents evidence from becoming stale or otherwise difficult to
gather; a necessity for any agency charged with remedying
discrimination nationwide.
On the other hand, the brief limitations period significantly
weakens one purpose of the ADA: to provide a clear and
comprehensive mandate to eliminate discrimination.1 3 5 The shorter
limitations period will enable state and local governments to escape
liability when a plaintiff fails to meet the shorter limitations, which in
turn weakens the deterrent aspect of an otherwise available damages
remedy. 3 6
Nor does the conclusion that interpreting Title II to authorize
employment would render provisions of Title I superfluous or
redundant' 3 7 serve as persuasive authority for the conclusion that
Congress did not intend for Title II to cover employment
discrimination. The Supreme Court "has [repeatedly] recognized that
Congress has provided a variety of remedies, at times overlapping, to
'3 Elwell, 693 F.3d at 1310; Zimmerman, 170 F.3d at 1177-78; Scherman v. N.Y. State
Banking Dep't, No. 09 Civ. 2476, 2010 U.S. Dist. LEXIS 26288, at *32 (S.D.N.Y. Mar. 19,
2010); Brettler v. Purdue Univ., 408 F. Supp. 2d 640, 659 (N.D. Ind. 2006).
134 H.R. REP. No. 92-238, at 3 (1971), reprintedin 1972 U.S.C.C.A.N. 2137, 2138.
'" 42 U.S.C. § 12101(b) (2018).
136 See, e.g., Owen v. City of Independence, 445 U.S. 622, 651 (1980).
1" Zimmerman, 170 F.3d at 1177 (emphasis added); see also Mary Jo C., 707 F.3d at 171;
Elwell, 693 F.3d at 1309; Scherman, 2010 U.S. Dist. LEXIS 26288, at *32; Brettler, 408 F.
Supp. 2d at 657; Decker v. Univ. of Houston, 970 F. Supp. 575, 579 (S.D. Tex. 1997).
2019 ADA AND EMPLOYMENT DISCRIMINATION 97
138 N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 535 n.26 (1982).
139 Reyazuddin v. Montgomery Cty., 789 F.3d 407, 421 (4th Cir. 2015); Elwell, 693 F.3d at
1312; Zimmerman, 170 F.3d at 1178.
140 Elwell, 693 F.3d at 1312; Zimmerman, 170 F.3d at 1183.
141 See supra notes 88-98 and accompanying text.
98 TOURO LAWREVIEW Vol. 35
'
Accordingly, section 12133 speaks to the "precise question at issue." 5 2
Hence, the ADA precludes interpreting 28 C.F.R. § 35.140(b) as
requiring litigants to exhaust administrative remedies.' 5 3 Such a
reading contravenes congressional intent. Accordingly, while the
ambiguous nature of section 12132 requires deference to the Attorney
General, the unambiguous nature of section 12133 warrants a refusal
to defer to the Attorney General if the Attorney General's regulations
are interpreted to require the exhausting of remedies.1 5 4
V. CONCLUSION
149 See, e.g., Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 n.9
("The judiciary is the final authority on issues of statutory construction and must reject
administrative constructions which are contrary to clear congressional intent.").
15o Barnhart v. Thomas, 540 U.S. 20, 26 (2003) (quoting Chevron, 467 U.S. at 843); see
also Household Credit Servs., Inc. v. Pfennig, 541 U.S. 232, 239 (2004) (same).
151 42 U.S.C. § 12133 (2018).
152 Chevron, 467 U.S. at 842; see also Gen. Dynamics Land Sys., Inc., v. Cline, 540 U.S.
581, 600 (2004) (explaining that Chevron deference to agency statutory interpretation is
warranted "only when devices of judicial construction have been tried and found to yield no
clear sense of congressional intent").
153 See also supra note 18 and accompanying text; 28 C.F.R. § 41.5 (2018) (adopting
enforcement procedures of Title VI of the Civil Rights Act of 1964). Title VI does not require
the exhaustion of administrative remedies. See Freed v. Consol. Rail Corp., 201 F.3d 188, 191
(3d Cir. 2000).
154 See Chevron, 467 U.S. at 843 ("The judiciary is the final authority on issues of statutory
construction and must reject administrative constructions which are contrary to clear
congressional intent.").
100 TOURO LAWREVIEW Vol. 35
the Attorney General's regulations that authorize such under Title II.
These courts have inappropriately applied rules of statutory
construction to improperly conclude that Congress expressly intended
to limit employment discrimination claims to Title I. Congress did not
so intend as a proper application of statutory construction rules and the
ADA's legislative history strongly suggest that Congress intended to
incorporate the contents of Section 504 into Title II. More
significantly, Title II is an ambiguous statute as to which Congress
authorized the Attorney General to promulgate administrative
regulations governing its implementation. For this reason, and
consistent with Chevron and its progeny, the Attorney General's
regulation extending Title II protection to employment discrimination
claims is entitled to deference. The Attorney General's interpretation
of Title 1I is more than reasonable. A reading of the legislative history
of Title II and rules for statutory construction applicable to Title II
establishes that if the Supreme Court was to address this issue de novo,
a conclusion that Congress intended to subject employment
discrimination by state and local governments to Title II is more
warranted than a finding that Congress did not.
In properly formulating this remedial avenue, it is important to
recognize that any employment discrimination claim pursuant to Title
II is not subject to an exhaustion of remedies requirement. Congress
clearly intended that Title II litigants need not exhaust administrative
remedies. Accordingly, any regulation that may require exhaustion is
not entitled to deference and is not valid. Hence, if interpreted
correctly, Title II should enable public employees whom the ADA
protects to benefit from the longer limitations period of Title II.