Order Code 98-921 A
CRS Report for Congress
Received through the CRS Web
The Americans with Disabilities Act (ADA):
Statutory Language and Recent Issues
Updated June 12, 2001
Nancy Lee Jones
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

The Americans with Disabilities Act (ADA): Statutory
Language and Recent Issues
Summary
The Americans with Disabilities Act, ADA, provides broad nondiscrimination
protection in employment, public services, public accommodations and services
operated by public entities, transportation, and telecommunications for individuals
with disabilities. The Supreme Court has decided ten ADA cases, including the
February 2001 decision in University of Alabama v. Garrett and the May 29, 2001
decision in Martin v. PGA Tour. This report will summarize the major provisions of
the ADA and will discuss selected recent issues, including the Supreme Court cases.
It will be updated as developments warrant.

Contents
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Definition of Disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Statutory Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Regulatory Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Supreme Court Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Bragdon v. Abbott . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Sutton v. United Airlines and Murphy v. United Parcel Service . . . . . 5
Albertsons, Inc. v. Kirkingburg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Toyota Motor Manufacturing of Kentucky v. Williams . . . . . . . . . . . . 7
Other Judicial Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
General Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Application of the Eleventh Amendment: Garrett v. University of
Alabama . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Other Supreme Court Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Receipt of SSI Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
“Qualified” Individual with a Disability . . . . . . . . . . . . . . . . . . . . . . . 15
Collective Bargaining Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . 15
U.S. Airways v. Barnett . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Employment Inquiries Relating to a Disability . . . . . . . . . . . . . . . . . . . . . 17
Defenses to a Charge of Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Drugs, Alcohol and Employer Conduct Rules . . . . . . . . . . . . . . . . . . . . . 18
Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Public Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
General Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Supreme Court Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Other Title II Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Transportation Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Public Accommodations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Statutory Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Supreme Court Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Martin v. PGA Tour and “Fundamental Alteration” . . . . . . . . . . . . . . . . . 24
ADA and the Internet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Telecommunications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Miscellaneous Provisions in Title V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

The Americans with Disabilities Act (ADA):
Statutory Language and Recent Issues
Background
The Americans with Disabilities Act, ADA, 42 U.S.C. §§12101 et seq., has often
been described as the most sweeping nondiscrimination legislation since the Civil
Rights Act of 1964. It provides broad nondiscrimination protection in employment,
public services, public accommodation and services operated by private entities,
transportation, and telecommunications for individuals with disabilities. As stated in
the Act, its purpose is “to provide a clear and comprehensive national mandate for the
elimination of discrimination against individuals with disabilities.”1 Enacted on July
26, 1990, the majority of the ADA’s provisions took effect in 1992 but the body of
law interpreting the ADA is still being created. The Supreme Court has decided ten
ADA cases, eight since 1998.2 In the 2000-2001 term, the Court decided Garrett v.
University of Alabama,
3 holding that the Eleventh Amendment bars suits to recover
monetary damages by state employees, and Martin v. PGA Tour,4 holding that
professional golf tours are covered by title III and that the use of a golf cart by a
golfer with a mobility impairment did not “fundamentally alter” the golf tournaments.
Before examining the provisions of the ADA and these cases, it is important to
briefly note the ADA’s historical antecedents. A federal statutory provision which
existed prior to the ADA, section 504 of the Rehabilitation Act of 1973, prohibits
discrimination against an otherwise qualified individual with a disability, solely on the
basis of the disability, in any program or activity that receives federal financial
1 42 U.S.C. §12102(b)(1).
2 Bragdon v. Abbott, 524 U.S. 624 (1998); Pennsylvania Department of Prisons v. Yeskey,
524 U.S. 206 (1998); Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998);
Cleveland v. Policy Management Systems, 526 U.S. 795 (1999); Olmstead v. L.C., 527 U.S.
581 (1999); Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999); Sutton v. United
Air Lines, Inc
., 527 U.S. 471(1999); Kirkingburg v. Albertson’s Inc., 527 U.S. 555 (1999).
For a discussion limited to Supreme Court decisions on the ADA see Jones, “The Americans
with Disabilities Act (ADA): Supreme Court Decisions,” RS20246.
3 531 U.S. 356 (2001). Prior to granting certiorari in Garrett, the Supreme Court had
granted certiorari in two other cases presenting the same issue but these cases were settled
prior to oral argument. Alsbrook v. City of Maumelle, 184 F.3d 999 (8th Cir. 1999), cert .
granted
, 528 U.S. 1146 (2000), dismissed, 529 U.S. 1001 (2000); Florida Department of
Corrections v. Dickson,
139 F.3d 1426 (11th Cir. 1999), cert. granted, 528 U.S. 1132 ( 2000),
dismissed 528 U.S. 1184 (2000).
4 2001 U.S. LEXIS 4115 (May 29, 2001).

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assistance, the executive agencies or the U.S. Postal Service.5 Many of the concepts
used in the ADA originated in section 504 and its interpretations; however, there is
one major difference. While section 504's prohibition against discrimination is tied to
the receipt of federal financial assistance, the ADA also covers entities not receiving
such funds. In addition, the federal executive agencies and the U.S. Postal Service
are covered under section 504, not the ADA. The ADA contains a specific provision
stating that except as otherwise provided in the Act, nothing in the Act shall be
construed to apply a lesser standard than the standards applied under title V of the
Rehabilitation Act (which includes section 504) or the regulations issued by federal
agencies pursuant to such title.6
Definition of Disability
Statutory Language
The definitions in the ADA, particularly the definition of “disability,” are the
starting point for an analysis of rights provided by the law. The term “disability,” with
respect to an individual, is defined as “(A) a physical or mental impairment that
substantially limits one or more of the major life activities of such individual; (B) a
record of such an impairment; or (C) being regarded as having such an impairment.”7
This definition, which has been the subject of numerous cases brought under the ADA
including major Supreme Court decisions, is drawn from the definitional section
applicable to section 504.8
The definition of “disability” was further elaborated in title V of the ADA.
Section 510 provides that the term “individual with a disability” in the ADA does not
include an individual who is currently engaging in the illegal use of drugs when the
covered entity acts on the basis of such use.9 An individual who has been rehabilitated
would be covered. However, the conference report language clarifies that the
provision does not permit individuals to invoke coverage simply by showing they are
participating in a drug rehabilitation program; they must refrain from using drugs.10
The conference report also indicates that the limitation in coverage is not intended to
be narrowly construed to only persons who use drugs “on the day of, or within a
matter of weeks before, the action in question.”11 The definitional section of the
Rehabilitation Act was also amended to create uniformity with this definition.
5 29 U.S.C. §794.
6 42 U.S.C. §12201(a).
7 42 U.S.C. § 12102(2).
8 29 U.S.C. §706(8).
9 42 U.S.C. §12210.
10 H.Rept. 101-596, 101st Cong., 2d Sess. 64; 1990 U.S. Code Cong. & Ad. News 573.
11 Id.

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Section 508 provides that an individual shall not be considered to have a
disability solely because that individual is a transvestite.12 Section 511 similarly
provides that homosexuality and bisexuality are not disabilities under the Act and that
the term disability does not include transvestism, transsexualism, pedophilia,
exhibitionism, voyeurism, gender identity disorders not resulting from physical
impairments, or other sexual behavior disorders, compulsive gambling, kleptomania,
or pyromania, or psychoactive substance use disorders resulting from current illegal
use of drugs.13
Regulatory Interpretation
The issues involving the definition of “disability” have been among the most
controversial under the ADA. Although the continued validity of the regulations is
questionable after the Supreme Court’s recent decisions in Sutton and Murphy, the
Equal Employment Opportunity Commission (EEOC) has issued regulations
discussing the requirements of the definition.14 The EEOC also issued detailed
guidance on the definition on March 15, 1995 finding that the following conditions
would not constitute impairments: environmental, cultural, and economic
disadvantages; age; pregnancy; common personality traits; and normal deviations in
height, weight and strength. However, certain aspects of these conditions could give
rise to an impairment. For example, complications arising from pregnancy or
conditions associated with age, such as hearing loss, could be considered to be
disabilities. In addition, the guidance found that the determination of whether a
condition constitutes an impairment must be made without regard to mitigating
measures. The guidance also included the EEOC’s interpretation of the third prong
of the definition — “regarded as having a disability.” This category was seen by
EEOC as including individuals who are subjected to discrimination on the basis of
genetic information relating to illness, disease or other disorders.15
The continuing force of the regulations and guidance is in some question after
the Supreme Court’s decisions in Sutton v. United Airlines, Inc., supra, and Murphy
v. United Parcel Service, supra.
The Court in these cases specifically held that
mitigating measures such as eyeglasses or medication are relevant to the
determination of whether or not a condition constitutes an impairment. In other
words, the Court found that if an individual’s vision is correctable by eye glasses, that
individual’s visual condition would not be considered an impairment.
Rejecting the EEOC interpretation in Sutton, the Supreme Court noted that no
agency was given the authority to interpret the term “disability” but that because both
parties accepted the regulations as valid “we have no occasion to consider what
12 42 U.S.C. §12208.
13 42 U.S.C. §12211.
14 34 C.F.R. §§1630 et seq.
15 EEOC Compliance Manual, Section 902; BNA’s Americans with Disabilities Act Manual
70:1131. The issue of coverage of genetic disorders has been widely discussed. See CRS
Report RL30006, Genetic Information: Legal Issues Relating to Discrimination and
Privacy
.

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deference they are due, if any.” The Court specifically noted what it considered to be
conceptual difficulties with defining major life activities to include work. Similarly,
in Murphy the Court clearly stated that its use of the EEOC regulations did not
indicate that the regulations were valid. This questioning of the regulations and
guidance raises issues concerning how the Court would view other agency
interpretations such as those indicating that genetic discrimination would be covered
under the definition of individual with disability under the ADA.16 This may be
particularly important with regard to agency interpretations that rely heavily on the
ADA’s legislative history since the Court in Sutton did not consider the legislative
history but found that the statutory language was sufficient to support its holding.
The EEOC has recently issued guidance to its field investigators to help them
analyze ADA charges after the Supreme Court’s decisions. This guidance emphasizes
a case by case determination regarding issues of whether an individual has a disability
and whether that individual is “qualified.”17 In addition, the EEOC noted that the
Supreme Court’s interpretation of the ADA in Bragdon v. Abbott, supra, indicates
that the terms “impairment,” “major life activity” and “substantial limitation” are to
be broadly interpreted and “the EEOC will continue to give a broad interpretation to
these terms.”
Supreme Court Cases
Although Sutton and Murphy were discussed briefly with regard to the EEOC’s
regulations, these are landmark decisions and it is critical to examine these decisions
and the Supreme Court’s other ADA decisions in more depth. The first ADA case
to address the definitional issue was Bragdon v. Abbott, a case involving a dentist
who refused to treat an HIV infected individual outside of a hospital.18 In Bragdon,
the Court found that the plaintiff’s asymptomatic HIV infection was a physical
impairment impacting on the major life activity of reproduction thus rending HIV
infection a disability under the ADA. Two other cases the Court has decided on the
definitional issue involved whether the effects of medication or assistive devices
should be taken into consideration in determining whether or not an individual has a
disability. The Court in the landmark decisions of Sutton v. United Airlines, supra,
and Murphy v. United Parcel Service, Inc, supra, held the “determination of whether
an individual is disabled should be made with reference to measures that mitigate the
individual’s impairment....”19 Finally, in Albertsons Inc. v. Kirkingburg, supra, the
Court held unanimously that the ADA does not require that an employer adopt an
experimental waiver program regarding certification of an employee and stated that
16 EEOC Compliance Manual, Vol. 2, section 902, order 915.002,902-45 (1995).
17 EEOC, “Instructions for Field Offices: Analyzing ADA Charges After Supreme Court
Decisions Addressing ‘Disability’ and ‘Qualified’, (July 1999).
18 524 U.S. 624 (1998). For a more detailed discussion of this decision see CRS Report 98-
599, The Americans with Disabilities Act: HIV Infection is Covered Under the Act.
19 Sutton v. United Airlines. See also Murphy v. United Parcel Service, where the Court held
that the determination of whether the petitioner’s high blood pressure substantially limits one
or more major life activities must be made considering the mitigating measures he employs.

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the ADA requires proof that the limitation on a major life activity by the impairment
is substantial.
Bragdon v. Abbott. The Supreme Court in Bragdon v. Abbott addressed the
ADA definition of individual with a disability and held that the respondent’s
asymptomatic HIV infection was a physical impairment impacting on the major life
activity of reproduction thus rendering the HIV infection a disability under the ADA.20
In 1994, Dr. Bragdon performed a dental examination on Ms. Abbott and discovered
a cavity. Ms. Abbott had indicated in her registration form that she was HIV positive
but at that time she was asymptomatic. Dr. Bragdon told her that he would not fill
her cavity in his office but would treat her only in a hospital setting. Ms. Abbott filed
an ADA complaint and prevailed at the district court, courts of appeals and the
Supreme Court on the issue of whether she was an individual with a disability but the
case was remanded for further consideration regarding the issue of direct threat.
In arriving at its holding, Justice Kennedy, writing for the majority, first looked
to whether Ms. Abbott’s HIV infection was a physical impairment. Noting the
immediacy with which the HIV virus begins to damage an individual’s white blood
cells, the Court found that asymptomatic HIV infection was a physical impairment.
Second, the Court examined whether this physical impairment affected a major life
activity and concluded that the HIV infection placed a substantial limitation on her
ability to reproduce and to bear children and that reproduction was a major life
activity. Finally, the Court examined whether the physical impairment was a
substantial limitation on the major life activity of reproduction. After evaluating the
medical evidence, the Court concluded that Ms. Abbott’s ability to reproduce was
substantially limited in two ways: (1) an attempt to conceive would impose a
significant risk on Ms. Abbott’s partner, and (2) an HIV infected woman risks
infecting her child during gestation and childbirth.21
Sutton v. United Airlines and Murphy v. United Parcel Service. In
Sutton, the Supreme Court affirmed the court of appeals decision and rejected the
position of the Equal Employment Opportunities Commission (EEOC). The tenth
circuit had held that United Airlines did not violate the ADA when it denied jobs to
twins who had uncorrected vision of 20/200 and 20/400. Both of the twins were
commercial airline pilots for regional commuter airlines and had 20/20 vision with
corrective lenses. However, United rejected their applications based on its policy of
requiring uncorrected vision of 20/100 or better for its pilots. The tenth circuit noted
that the twins’ vision was a physical impairment but found that because it was
corrected, they were not substantially impaired in the major life activity of seeing.
Similarly, in Murphy the tenth circuit relied on its ruling in Sutton to find that a
former truck mechanic with high blood pressure was not an individual with a disability
since he experiences no substantial limitations in major life activities while he takes
his medication.
20 524 U.S. 624, 118 S.Ct. 2196, 141 L.Ed. 540 (1998).
21 Another major issue addressed in Bragdon involved the interpretation of the ADA’s direct
threat exemption which will be discussed in the section on public accommodations. For a
more detailed discussion of Bragdon see CRS Report 98-599, The Americans with
Disabilities Act: HIV Infection is Covered Under the Act
.

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There are several significant implications of these decisions. Most importantly,
the decisions significantly limit the reach of the definition of individual with disability.
The use of mitigating factors, such as eye glasses or medication is relevant to the
determination of disability. And as the Sutton Court stated: “a ‘disability’ exists only
where an impairment ‘substantially limits’ a major life activity, not where it ‘might,’
‘could,’ or ‘would’ be substantially limiting if mitigating measures were not taken.”
To be substantially limited in the major life activity of working was seen by the
majority as being precluded from more than one type of job. The Court also
emphasized that the statement of findings in the ADA that some 43,000,000
Americans have one or more physical or mental disabilities “requires the conclusion
that Congress did not intend to bring under the statute’s protection all those whose
uncorrected conditions amount to disabilities.” The proper analysis was described as
examining in an individualized manner whether an individual has a disability. Thus
individuals who use prosthetic limbs or a wheelchair “may be mobile and capable of
functioning in society but still be disabled because of a substantial limitation on their
ability to walk or run.” The Court in Sutton and Murphy also observed that the third
prong of the ADA’s definition of disability which would include individuals who are
“regarded as” having a disability is relevant. The Court found that there are two ways
an individual could be “regarded as” having a disability: (1) a covered entity
mistakenly believes that a person has a physical impairment that substantially limits
one or more major life activities, or (2) a covered entity mistakenly believes that an
actual, non limiting impairment substantially limits one or more major life activities.
Since the petitioners in Sutton did not make the argument that they were regarded as
having a substantially limiting impairment, the Court did not address the issue there.
But in Murphy this issue was before the Court. It held that the petitioner’s high blood
pressure did not substantially limit him in employment since (1) he failed to
demonstrate that there is a genuine issue of material fact as to whether he is regarded
as disabled and (2) petitioner was able to perform a wide array of jobs.
Justices Stevens and Breyer dissented from the majority’s opinions in Sutton and
Murphy arguing that “in order to be faithful to the remedial purpose of the Act, we
should give it a generous, rather than a miserly, construction.” The dissenters found
that the statutory scheme was best interpreted by looking only to the existence of an
impairment that substantially limits an individual either currently or in the past since
“this reading avoids the counterintuitive conclusion that the ADA’s safeguards vanish
when individuals make themselves more employable by ascertaining ways to
overcome their physical or mental limitations.”
Albertsons, Inc. v. Kirkingburg. Albertsons involved a truck driver with
monocular vision who alleged a violation of the ADA based on the refusal of his
employer to retain him based on a waiver. The truck driver did not meet the general
vision standards set by the Department of Transportation for drivers of commercial
vehicles although he did qualify for a waiver. The Supreme Court in a unanimous
decision held that an employer does not have to participate in an experimental waiver
program.
Although the Court did not need to address definitional issues in Albertsons, it
did so to “correct three missteps the Ninth Circuit made in its discussion of the
matter.” The Supreme Court found there was no question regarding the fact that the
plaintiff had a physical impairment; the issue was whether his monocular vision

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“substantially limits” his vision. The ninth circuit had answered this question in the
affirmative but the Supreme Court disagreed. First, it found that in order to be
substantially limiting, a condition must impose a “significant restriction” on a major
life activity, not a “difference” as determined by the ninth circuit. Second, in
determining whether or not there is a disability, the individual’s ability to compensate
for the impairment must be taken into consideration. Third, the existence of a
disability must be determined on a case-by-case basis.
Toyota Motor Manufacturing of Kentucky v. Williams. On April 16,
2001, the Supreme Court granted certiorari in Toyota Motor Manufacturing,
Kentucky Inc. v. Williams
22 to determine whether an impairment that precluded an
individual from performing only a limited number of tasks associated with a specific
job qualifies the individual for ADA coverage. The sixth circuit in Williams held that
an employee with carpal tunnel syndrome and tendinitis in her hands, arms, and
shoulders which substantially limited her ability to perform certain tasks on an
assembly line was an individual with a disability under the ADA.
The sixth circuit’s decision examined whether the plaintiff, a woman with carpal
tunnel syndrome, had a physical impairment that substantially limits one or more of
the major life activities of such individual. The court of appeals found that her
ailments were “analogous to having missing, damaged or deformed limbs that prevent
her from doing the tasks associated with certain types of manual assembly line
jobs....”23 and noted that the fact that she can perform a range of isolated, non-
repetitive manual tasks such as carrying out personal or household chores did not
effect this determination.
The Supreme Court’s determination will clarify the interpretation of what it
means to have a physical impairment that substantially limits one or more major life
activities. The decision will be closely watched not only because it involves carpal
tunnel, an increasingly prevalent condition, but also because it could have an effect
on the coverage of other conditions as well.
Other Judicial Decisions
Numerous lower courts have addressed issues involving the definition of
disability. These cases have involved such conditions as obesity,24 cancer,25 diabetes,26
22 224 F.3d 840 (6th Cir. 2000).
23 224 F.3d 840, 843 (8th Cir. 2000).
24 The EEOC’s ADA regulations state that absent unusual circumstances, “obesity is not
considered a disabling impairment,” 29 C.F.R. §1630.2(j)(Appendix). See Andrews v. Ohio,
104 F.3d 803 (6th Cir. 1997); Francis v. City of Meriden, 129 F.3d 281 (2d Cir. 1997).
However, several cases have found situations where obesity might be covered. See, e.g., Cook
v. Rhode Island,
10 F.3d 17 (1st Cir. 1993); EEOC v. Texas Bus Lines, 923 F.Supp. 965
(S.D.Tex. 1996).
25 In most cases, an individual with cancer would most likely be covered by the ADA since
the cancer would probably limit a major life activity. But the fifth circuit court of appeals
(continued...)

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and multiple chemical sensitivity.27 However, given the recent Supreme Court cases
on the definition of disability, the precedential value of lower court cases decided
prior to the most recent Supreme Court decisions must be carefully examined to
determine if the reasoning comports with the Court’s interpretation of the statute.
There have been a number of lower court cases post-Sutton. One of the most
significant issues raised in these cases is whether an individual with a disability is
required to take medication or use an assistive device to alleviate his or her condition.
In a recent case involving an individual with asthma, the Maryland district court
denied the ADA claim and stated: “Since plaintiff’s asthma is correctable by
medication and since she voluntarily refused the recommended medication, her asthma
did not substantially limit her in any major life activity. A plaintiff who does not avail
herself of proper treatment is not a ‘qualified individual’ under the ADA.”28 Other
courts have focused on the other aspects of the definition concerning what is a major
life activity and when an individual is considered to have a history of a disability or be
“regarded as” having a disability.29
Employment
General Requirements
Title I of the ADA provides that no covered entity shall discriminate against a
qualified individual with a disability because of the disability in regard to job
application procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of
25(...continued)
held that a woman who received radiation treatments for breast cancer was not covered since
she missed very few days of work and was therefore not limited in a major life activity.
Ellison v. Software Spectrum, Inc., 85 F.3d 187 (5th Cir. 1996).
26 Lawson v. CSX Transportation Inc., 245 F.3d 916 (7th Cir. 2001). The Seventh Circuit
held that the plaintiff’s diabetes substantially limited the major life activity of eating, even
with the corrective measure of taking insulin.
27 In Patrick v. Southern Company Services, 910 F.Supp. 566 (N.D.Ala. 1996), aff’d 103
F.3d 149 (11th Cir. 1996), the court found that alleged multiple chemical sensitivity was not
a disability under the ADA since it did not substantially limit the plaintiff in the major life
activity of working. However, in Whillock v. Delta Air Lines, 926 F.Supp. 1555 (N.D.Ga.
1995, aff’d 86 F.3d. 1171 (11th Cir. 1996), the court found that multiple chemical sensitivity
might be a disability.
28 Tangires v. The Johns Hopkins Hospital, 79 F.Supp.2d 587 (D. Md. 2000), aff’d 2000
App. LEXIS 23555 (Sept. 20, 2000). See also Spradley v. Custom Campers, Inc., 68
F.Supp.2d 1225 (D.Kansas 1999). But see, Finical v. Collections Unlimited, Inc., 65
F.Supp.2d 1032 (D.Ariz. 1999), where the court rejected the employer’s argument that
Sutton’s individualized inquiry does not permit an employer to consider the use of corrective
devices which are not actually used.
29 For a more detailed discussion of these decisions see CRS Report RS20432, The
Americans with Disabilities Act: Post Sutton Decisions on Definition of Disability
.

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employment.30 The term employer is defined as a person engaged in an industry
affecting commerce who has 15 or more employees.31 Therefore, the employment
section of the ADA, unlike the section on public accommodations, which will be
discussed subsequently, is limited in scope to employers with 15 or more employees.
This parallels the coverage provided in the Civil Rights Act of 1964.
The term “employee” with respect to employment in a foreign country includes
an individual who is a citizen of the United States; however, it is not unlawful for a
covered entity to take action that constitutes discrimination with respect to an
employee in a workplace in a foreign country if compliance would cause the covered
entity to violate the law of the foreign country.32
If the issue raised under the ADA is employment related, and the threshold issues
of meeting the definition of an individual with a disability and involving an employer
employing over fifteen individuals are met, the next step is to determine whether the
individual is a qualified individual with a disability who, with or without reasonable
accommodation, can perform the essential functions of the job.
Title I defines a “qualified individual with a disability.” Such an individual is “an
individual with a disability who, with or without reasonable accommodation, can
perform the essential functions of the employment position that such person holds or
desires.”33 The ADA incorporates many of the concepts set forth in the regulations
promulgated pursuant to section 504, including the requirement to provide reasonable
accommodation unless the accommodation would pose an undue hardship on the
operation of the business.34
“Reasonable accommodation” is defined in the ADA as including making existing
facilities readily accessible to and usable by individuals with disabilities, and job
restructuring, part-time or modified work schedules, reassignment to a vacant
position, acquisition or modification of equipment or devices, adjustment of
examinations or training materials or policies, provision of qualified readers or
interpreters or other similar accommodations.35 “Undue hardship” is defined as “an
action requiring significant difficulty or expense.”36 Factors to be considered in
determining whether an action would create an undue hardship include the nature and
30 42 U.S.C. §12112(a).
31 42 U.S.C. §12111(5).
32 P.L. 102-166 added this provision.
33 42 U.S.C. §1211(8). The EEOC has stated that a function may be essential because (1)
the position exists to perform the duty, (2) there are a limited number of employees available
who could perform the function, or (3) the function is highly specialized. 29 C.F.R.
§1630(n)(2). A number of issues have been litigated concerning essential functions. For
example, some courts have found that regular attendance is an essential function of most jobs.
See e.g., Carr v. Reno, 23 F.3d 525 (D.C.Cir. 1994).
34 See 45 C.F.R. Part 84.
35 42 U.S.C. § 12111(9).
36 42 U.S.C. §12111(10).

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cost of the accommodation, the overall financial resources of the facility, the overall
financial resources of the covered entity, and the type of operation or operations of
the covered entity.
Reasonable accommodation and the related concept of undue hardship are
significant concepts under the ADA and are one of the major ways in which the ADA
is distinguishable from title VII jurisprudence. The statutory language paraphrased
above provides some guidance for employers but the details of the requirements have
been the subject of numerous judicial decisions. In addition, the EEOC issued
detailed enforcement guidance on these concepts on March 1, 1999.37 Although
much of the guidance reiterates longstanding EEOC interpretations in a question and
answer format, the EEOC also took issue with some judicial interpretations.38
Notably the EEOC stated that
! an employee who is granted leave as a reasonable accommodation is entitled
to return to his or her same position, unless this imposes an undue hardship;
! an employer is limited in the ability to question the employee’s documentation
of a disability (“An employer cannot ask for documentation when: (1) both the
disability and the need for reasonable accommodation are obvious, or (2) the
individual has already provided the employer with sufficient information to
substantiate that s/he has an ADA disability and needs the reasonable
accommodation requested.”); and
! an employer cannot include any “quantitative, financial, or other limitations
regarding the extent of the obligation to make changes to a job or work
environment.”
This last principle is an interesting contrast with the opinion of the seventh circuit
in Vande Zande v. State of Wisconsin Department of Administration.39 In Vande
Zande
, the court found that the cost of the accommodation cannot be
disproportionate to the benefit. “Even if an employer is so large or wealthy—or, like
the principal defendant in this case, is a state, which can raise taxes in order to finance
any accommodations that it must make to disabled employees—that it may not be able
to plead ‘undue hardship’, it would not be required to expend enormous sums in order
to bring about a trivial improvement in the life of a disabled employee.”40
37 EEOC, “EEOC Enforcement Guidance on Reasonable Accommodation and Undue
Hardship Under the Americans with Disabilities Act,” No. 915.002 (March 1, 1999).
38 It should be emphasized that the EEOC’s guidance does not have the force of regulations
and courts are not bound to follow the guidance although some courts do defer to agency
expertise.
39 44 F.3d 538 (7th Cir. 1995).
40 Id. At 542-543. See also Schmidt v. Methodist Hospital of Indiana, 89 F.3d 342 (7th Cir.
1996), where the court found that reasonable accommodation does not require an employer
to provide everything an employee requests.

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Application of the Eleventh Amendment: Garrett v. University
of Alabama

On February 21, 2001, the Supreme Court decided Garrett v. University of
Alabama.41 In a 5-4 decision, the Court held that the Eleventh Amendment bars suits
to recover monetary damages by state employees under title I of the Americans with
Disabilities Act (ADA). Although the ruling is narrowly focused concerning the
ADA, it has broad implications regarding federal-state power42 and emphasizes the
difficulty of drafting federal legislation under section 5 of the Fourteenth Amendment
that will withstand Eleventh Amendment scrutiny.43
The Eleventh Amendment states: “The Judicial power of the United States shall
not be construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.” The Supreme Court has found that the Eleventh
Amendment cannot be abrogated by the use of Article I powers but that section 5 of
the Fourteenth Amendment can be used for abrogation in certain circumstances.
Section 5 of the Fourteenth Amendment states: “The Congress shall have the power
to enforce, by appropriate legislation, the provisions of this article.”
The circumstances where section 5 of the Fourteenth Amendment can be used
to abrogate the Eleventh Amendment were discussed in the recent Supreme Court
decisions in College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense
Board,
44 Florida Prepaid Postsecondary Educ. Expense Board v. College Savings
Bank,45
and Kimel v. Florida Board of Regents.46 They reiterated the principle that
the Congress may abrogate state immunity from suit under the Fourteenth
41 For a more detailed discussion of Garrett see CRS Report RS20828, University of
Alabama v. Garrett: Federalism Limits on the Americans with Disabilities Act
..
42 For a detailed discussion of federalism see CRS Report RL30315, Federalism and the
Constitution: Limits on Congressional Power
.
43 It should also be observed that the Supreme Court did not address this issue in the cases
it has already decided since it was not presented to the Court.”We do not address another issue
presented by petitioners: whether application of the ADA to state prisons is a constitutional
exercise of Congress’s power under either the Commerce Clause....or §5 of the Fourteenth
Amendment....” Pennsylvania Department of Corrections v. Yeskey, supra. “This case, as
it comes to us, presents no constitutional question.” Olmstead v. L.C. , supra.
44 527 U. S.666 (1999) (The Trademark Remedy Clarification Act, TRCA, which subjected
states to suit for false and misleading advertising, did not validly abrogate state sovereign
immunity; neither the right to be free from a business competitor’s false advertising nor a
more generalized right to be secure in one’s business interests qualifies as a property right
protected by the Due Process Clause).
45 527 U.S. 627 (1999)(Congress may abrogate state sovereign immunity but must do so
through legislation that is appropriate within the meaning of section 5 of the Fourteenth
Amendment; Congress must identify conduct that violates the Fourteenth Amendment and
must tailor its legislation to remedying or preventing such conduct).
46 528 U.S. 62 (2000).

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Amendment and found that there were three conditions necessary for successful
abrogation.
! Congressional power is limited to the enactment of “appropriate” legislation
to enforce the substantive provisions of the Fourteenth Amendment.
! The legislation must be remedial in nature.
! There must be a “congruence and proportionality” between the injury to be
prevented and the means adopted to that end.
The ADA uses both the Fourteenth Amendment and the Commerce Clause of
the Constitution as its constitutional basis.47 It also specifically abrogates state
immunity under the Eleventh Amendment.48 The ADA, then, is clear regarding its
attempt to abrogate state immunity; the issue is whether the other elements of a
successful abrogation are present. The Supreme Court in Garrett found that they
were not.
Garrett involved two consolidated cases brought by separate Alabama
employees. One of the employees, Patricia Garrett, had been undergoing treatment
for breast cancer when, she alleged, she was transferred to a lesser position after
having been told that her supervisor did not like sick people. The second plaintiff,
Milton Ash, alleged that the Alabama Department of Human Services did not enforce
its non-smoking policy and that, therefore, he was not able to control his asthma. The
Eleventh Circuit held that the state was not immune from suits for damages. The
Supreme Court reversed.
Writing for the majority, Chief Justice Rehnquist briefly examined the ADA’s
statutory language and the general principles of the Eleventh Amendment immunity.
He observed that the first step in applying these principles was to identify the scope
of the constitutional right at issue, in other words, to identify constitutional rights that
individuals with disabilities have to be free from discrimination. Discussing Cleburne
v. Cleburne Living Center
,49 Chief Justice Rehnquist emphasized that discrimination
against individuals with disabilities is entitled to only “minimum ‘rational-basis’
review” and stated: “Thus, the result of Cleburne is that States are not required by the
Fourteenth Amendment to make special accommodations for the disabled, so long as
their actions towards such individuals are rational. They could quite hard headedly
– and perhaps hardheartedly – hold to job qualification requirements which do not
make allowance for the disabled. If special accommodations for the disabled are to
47 42 U.S.C. §12101(b)(4). The Commerce Clause would not be sufficient authority on
which to abrogate state sovereign immunity since the Supreme Court’s decision in Seminole
Tribe of Florida v. Florida,
517 U.S. 44 (1996).
48 42 U.S.C. §12202.
49 473 U.S. 432 (1985). In Cleburne, the Supreme Court applied the Fourteenth Amendment
to individuals with mental retardation and found that, although such individuals were not part
of a suspect class, a zoning ordinance which excluded group homes from certain locations
violated the Fourteenth Amendment.

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be required, they have to come from positive law and not through the Equal
Protection Clause.”50
After examining the constitutional rights of individuals with disabilities, the
majority opinion in Garrett examined whether Congress had identified a history and
pattern of unconstitutional employment discrimination by the states against individuals
with disabilities. Chief Justice Rehnquist observed that the authority of Congress
under section 5 of the Fourteenth Amendment “is appropriately exercised only in
response to state transgressions.”51 He found that the legislative history of the ADA
did not identify such a pattern. Although the record was replete with examples of
discrimination, Chief Justice Rehnquist noted that most of these examples were drawn
from units of local government and not the states and that “the Eleventh Amendment
does not extend its immunity to units of local government.”52
The Garrett majority observed that even if a pattern of unconstitutional
discrimination by states was found, issues relating to whether there was a “congruence
and proportionality” between the injury to be prevented and the means adopted would
raise concerns. Chief Justice Rehnquist observed that “it would be entirely rational
(and therefore constitutional) for a state employer to conserve scarce financial
resources by hiring employees who are able to use existing facilities” but that the
ADA requires that existing facilities be readily accessible to and usable by individuals
with disabilities.53 The ADA’s accommodation requirements were seen as “far
exceed(ing) what is constitutionally required.”54 The ADA’s requirements forbidding
standards, criteria, or methods of administration that disparately impact individuals
with disabilities were also seen as inconsistent with the requirements for legislation
under section 5 of the Fourteenth Amendment.
In conclusion, the majority opinion stated that “Congress is the final authority
as to desirable public policy, but in order to authorize private individuals to recover
money damages against the States, there must be a pattern of discrimination by the
States which violates the Fourteenth Amendment, and the remedy imposed by
Congress must be congruent and proportional to the targeted violation. Those
requirements are not met here....”55 However, after reaching this holding, the Garrett
majority went on to note that it does not mean that individuals with disabilities have
no federal recourse. The opinion was limited to the recovery of monetary damages
and the standards of title I of the ADA were seen as still applicable to the states. In
addition, the Court noted that the federal government could enforce those rights in
actions for monetary damages and that state law would offer some means of redress.
50 Slip op. at 9-10.
51 Slip op. at 10.
52 Slip op. at 11.
53 Slip op. at 14.
54 Slip op. at 14.
55 Slip op. at 16.

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In a concurring opinion, Justices Kennedy and O’Connor, emphasized the limited
nature of the opinion stating that “what is in question is not whether the Congress,
acting pursuant to a power granted to it by the Constitution, can compel the States
to act. What is involved is only the question whether the States can be subjected to
liability in suits brought not by the Federal Government but by private persons seeking
to collect moneys from the state treasury without the consent of the State.”56
Justice Breyer, joined by Justices Stevens, Souter and Ginsburg, strongly
disagreed with the majority’s opinion and stated that Congress could have reasonably
concluded that the title I remedies of the ADA were appropriate legislation under the
Fourteenth Amendment. The emphasis in the majority opinion on the limited
legislative history was described as ignoring the “powerful evidence of discriminatory
treatment throughout society in general” which “implicates state governments as well,
for state agencies form part of that same larger society.”57 The rules the majority used
to find the legislative record inadequate were seen as flawed, using standards more
appropriately applied to judges than to Congress. In the view of the dissenters,
Congress has broad authority to remedy violations of the Fourteenth Amendment.
“There is simply no reason to require Congress, seeking to determine facts relevant
to the exercise of its §5 authority, to adopt rules or presumptions that reflect a court’s
institutional limitations. Unlike courts, Congress can readily gather facts from across
the Nation, assess the magnitude of a problem, and more easily find an appropriate
remedy.”58
University of Alabama v. Garrett is a major decision, further emphasizing the
Court’s federalism theories and raising separation of powers issues as well.59
Although the majority does not rule out all legislation enacted pursuant to §5 of the
Fourteenth Amendment, it has made the enactment of such legislation significantly
less likely to withstand Eleventh Amendment scrutiny. In addition, the Court’s
comments on disparate impact discrimination could signal a challenge to other uses
of this approach and some commentators have stated this could have implications for
other statutes, including title VII of the Civil Rights Act, which prohibits racial
discrimination.60 More specifically, with regard to the ADA, the majority took pains
to describe the limited nature of the holding. It is limited to title I of the ADA, deals
only with monetary damages and leaves open other avenues of relief such as
enforcement by the Equal Employment Opportunities Commission and state laws.
However, the absence of monetary damages does make individual suits against states
much less likely and has been described as a significant blow to ADA enforcement.
56 Concurring op. at 3.
57 Dissenting op. at 3.
58 Dissenting op. at 9.
59 Linda Greenhouse, “The High Court’s Target: Congress,” The New York Times wk 3 (Feb
25, 2001.)
60Id.

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Other Supreme Court Cases
Six of the nine Supreme Court decisions have involved employment situations
although a number of these cases did not reach past the threshold issue of whether the
individual alleging employment discrimination was an individual with a disability.
There are still several significant employment issues, such as reasonable
accommodations, which have not been dealt with by the Court. The Court has
recently granted certiorari in U.S. Airways Inc., v. Barnett, to determine an issue
regarding a seniority system. In addition, the landmark decision of University of
Alabama v. Garrett
on the application of the Eleventh Amendment arose in the
employment context although it is discussed separately above.
Receipt of SSI Benefits. The relationship between the receipt of SSDI
benefits and the ability of an individual to pursue an ADA employment claim was the
issue in Cleveland v. Policy Management Systems Corp, supra. The Supreme Court
unanimously held that pursuit and receipt of SSDI benefits does not automatically
stop a recipient from pursuing an ADA claim or even create a strong presumption
against success under the ADA. Observing that the Social Security Act and the ADA
both help individuals with disabilities but in different ways, the Court found that
“despite the appearance of conflict that arises from the language of the two statutes,
the two claims do not inherently conflict to the point where courts should apply a
special negative presumption like the one applied by the Court of Appeals here.” The
fact that the ADA defines a qualified individual as one who can perform the essential
functions of the job with or without reasonable accommodation was seen as a key
distinction between the ADA and the Social Security Act. In addition, the Court
observed that SSDI benefits are sometimes granted to individuals who are working.
“Qualified” Individual with a Disability. In the Albertsons decision
discussed in part previously, the Supreme Court held that an employer need not adopt
an experimental vision waiver program. Title I of the ADA prohibits discrimination
in employment against a “qualified” individual with a disability. In finding that the
plaintiff’s inability to comply with the general regulatory vision requirements
rendered him unqualified, the Court framed the question in the following manner. “Is
it reasonable...to read the ADA as requiring an employer like Albertsons to shoulder
the general statutory burden to justify a job qualification that would tend to exclude
the disabled, whenever the employer chooses to abide by the otherwise clearly
applicable, unamended substantive regulatory standard despite the Government’s
willingness to waive it experimentally and without any finding of its being
inappropriate?” Answering this question in the negative, the Court observed that
employers should not be required to “reinvent the Government’s own wheel” and
stated that “it is simply not credible that Congress enacted the ADA (before there was
any waiver program) with the understanding that employers choosing to respect the
Government’s sole substantive visual acuity regulation in the face of an experimental
waiver might be burdened with an obligation to defend the regulation’s application
according to its own terms.”
Collective Bargaining Agreements. The interplay between rights under
the ADA and collective bargaining agreements was the subject of the Supreme
Court’s decision in Wright v. Universal Maritime Service Corp., supra. The Court

CRS-16
held there that the general arbitration clause in a collective bargaining agreement does
not require a plaintiff to use the arbitration procedure for an alleged violation of the
ADA. However, the Court’s decision was limited since the Court did not find it
necessary to reach the issue of the validity of a union-negotiated waiver. In other
words, the Court found that a general arbitration agreement in a collective bargaining
agreement is not sufficient to waive rights under civil rights statutes but situations
where there is a specific waiver of ADA rights were not addressed.61
Another issue relating to collective bargaining involves the relationship between
collective bargaining and reasonable accommodation. In a seventh circuit court of
appeals decision, the court found that “the ADA does not require disabled individuals
to be accommodated by sacrificing the collectively bargained, bona fide seniority
rights of other employees.”62 This decision is apparently contrary to the EEOC’s
position. In its March 1, 1999 guidance the EEOC argues that if no reasonable
accommodation exists that avoids violating a collective bargaining agreement,
employers and unions have a responsibility to negotiate in good faith a variance from
the collective bargaining agreement.
U.S. Airways v. Barnett. The Supreme Court on April 16, 2001 granted
certiorari in U.S. Airways Inc. v. Barnett, 228 F.3d 1105 (9th Cir. 2000), a case
involving a seniority system but one imposed by the employer and not the result of a
collective bargaining agreement.
The ninth circuit in Barnett held that (1) an employer is required to engage in
good faith discussions with an employee with a disability to identify reasonable
accommodations, and (2) a seniority system is not an automatic bar to reassignment
but may be used as a factor in the undue hardship analysis. The Equal Employment
Opportunities Commission (EEOC) has issued guidance stating that “the ADA
requires employers to provide reasonable accommodations to individuals with
disabilities, including reassignment, even though they are not available to others....
And, if an employer has a policy prohibiting transfers, it would have to modify that
policy in order to reassign an employee with a disability.” The EEOC also rejected
the idea that a collective bargaining agreement automatically trumps a reasonable
accommodation. Rather, such an agreement is a factor in determining whether an
action constitutes an undue hardship. In addition, the House Education and Labor
Committee report on the ADA indicated that “if a collective bargaining agreement
reserves certain jobs for employees with a given amount of seniority, it may be
considered as a factor in determining whether it is a reasonable accommodation to
assign an employee with a disability without seniority to the job. However, the
agreement would not be determinative on the issue.”63 The Supreme Court will
determine whether or not to follow the policy enunciated by the EEOC in Barnett.
61 For more information see CRS Report RL30008, Labor and Mandatory Arbitration
Agreements: Background Discussion
.
62 Eckles v. Consolidated Rail Corporation, 94 F.3d 1041, 1051 (7th Cir. 1996), cert. den.,
520 U.S. 1146, 137 L.Ed.2d 480, 117 S.Ct. 1318 (1997).
63 H.Rept. 101-485, pt 2, at 63 (1990). See also, S.Rept. 101-116, at 32 (1989).

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Employment Inquiries Relating to a Disability
Before an offer of employment is made, an employer may not ask a disability
related question or require a medical examination.64 The EEOC in its guidance on this
issue stated that the rationale for this exclusion was to isolate an employer’s
consideration of an applicant’s non-medical qualifications from any consideration of
the applicant’s medical condition.65 Once an offer is made, disability related questions
and medical examinations are permitted as long as all individuals who have been
offered a job in that category are asked the same questions and given the same
examinations.66 However, there is uncertainty concerning whether predictive medical
testing is permissible. Some employers have tested new employees for the human
immunodeficiency virus (HIV), for sickle cell traits, and for genetic markers that
indicate an individual may have a higher than average susceptibility to cancer or
Huntington’s disease.
Defenses to a Charge of Discrimination
The ADA specifically lists some defenses to a charge of discrimination, including
(1) that the alleged application of qualification standards has been shown to be job
related and consistent with business necessity and such performance cannot be
accomplished by reasonable accommodation, (2) that the term “qualification
standards” can include a requirement that an individual shall not pose a direct threat
to the health or safety of other individuals in the workplace,67 and (3) that religious
entities may give a preference in employment to individuals of a particular religion to
perform work connected with carrying on the entities’ activities.68 In addition,
religious entities may require that all applicants and employees conform to the
religious tenets of the organization. The Secretary of Health and Human Services has,
pursuant to a statutory requirement,69 listed infectious diseases transmitted through
the handling of food; and if the risk cannot be eliminated by reasonable
accommodation, a covered entity may refuse to assign or continue to assign an
individual with such a disease to a job involving food handling.70
64 42 U.S.C. §12112.
65 EEOC, “ADA Enforcement Guidance: Preemployment Disability-Related Questions and
Medical Examinations,” Oct. 10, 1995.
66 Id.
67 The EEOC in its regulations states that the following factors should be considered when
determining whether an individual poses a direct threat: the duration of the risk, the nature and
severity of the potential harm, the likelihood that the potential harm will occur, and the
imminence of the potential harm. 29 C.F.R. § 1630.2(r).
68 42 U.S.C. § 12113.
69 Id.
70 62 F.R. 49518 (Sept. 22, 1997).

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Drugs, Alcohol and Employer Conduct Rules
A controversial issue that arose during the enactment of the ADA regarding
employment concerned the application of the Act to drug addicts and alcoholics. The
ADA provides that, with regard to employment, current illegal drug users are not
considered to be qualified individuals with disabilities. However, former drug users
and alcoholics would be covered by the Act if they are able to perform the essential
functions of the job. Exactly what is “current” use of illegal drugs has been the
subject of some discussion. The EEOC has defined current to mean that the illegal
drug use occurred “recently enough” to justify an employer’s reasonable belief that
drug use is an ongoing problem.71 The courts that have examined this issue have
generally found that to be covered by the ADA, the individual must be free of drugs
for a considerable period of time, certainly longer than weeks.72
In the appendix to its regulations, EEOC further notes that “an employer, such
as a law enforcement agency, may also be able to impose a qualification standard that
excludes individuals with a history of illegal use of drugs if it can show that the
standard is job-related and consistent with business necessity.”73 Title I also provides
that a covered entity may prohibit the illegal use of drugs and the use of alcohol in the
workplace.74 Similarly, employers may hold all employees, regardless of whether or
not they have a disability, to the same performance and conduct standards.75
However, if the misconduct results from a disability, the employer must be able to
demonstrate that the rule is job-related and consistent with business necessity.76
Remedies
The remedies and procedures set forth in sections 705, 706, 707, 709, and 710
of the Civil Rights Act of 1964,77 are incorporated by reference. This provides for
certain administrative enforcement as well as allowing for individual suits. The Civil
Rights Act of 1991, P.L. 102-166, expanded the remedies of injunctive relief and back
pay. A plaintiff who was the subject of unlawful intentional discrimination (as
opposed to an employment practice that is discriminatory because of its disparate
impact) may recover compensatory and punitive damages. In order to receive
punitive damages, the plaintiff must show that there was a discriminatory practice
71 29 C.F.R. Appendix §1630.3.
72 See e.g., Shafer v. Preston Memorial Hospital Corp., 107 F.3d 274 (4th Cir.
1997)(individual is a current user if he or she has illegally used drugs “in a periodic fashion
during the weeks and months prior to discharge.”)
73 29 C.F.R. Appendix §1630.3.
74 42 U.S.C. §12114(c); 29 C.F.R. §1630.16(b)(4).
75 EEOC Compliance Manual §902.2(c)(4). See also Hamilton v. Southwestern Bell
Telephone Co.,
136 F.3d 1047 (5th Cir. 1998)(“the ADA does not insulate emotional or
violent outbursts blamed on an impairment”).
76 EEOC Enforcement Guidance on the ADA and Psychiatric Disabilities, No. 915.002, p.
29 (March 25, 1997).
77 42 U.S.C. §§2000e-4, 2000e-5, 2000e-6, 2000e-8, 2000e-9.

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engaged in with malice or with reckless indifference to the rights of the aggrieved
individuals. The amount that can be awarded in punitive and compensatory damages
is capped, with the amounts varying from $50,000 to $300,000 depending upon the
size of the business. Similarly, there is also a “good faith” exception to the award of
damages with regard to reasonable accommodation.
It should also be noted that the Supreme Court addressed the issue of punitive
damages in a title VII sex discrimination case, Kolstad v. American Dental
Association.
78 The Court held in Kolstad that plaintiffs are not required to prove
egregious conduct to be awarded punitive damages; however, the effect of this
holding is limited by the Court’s determination that certain steps taken by an employer
may immunize them from punitive damages. Since the ADA incorporates the title VII
provisions, it is likely that the holding in Kolstad would be applicable to ADA cases
as well.
In Equal Employment Opportunity Commission v. Wal-mart Stores, Inc.,79 the
tenth circuit applied Kolstad and affirmed an award of punitive damages under the
ADA. This case involved a hearing impaired employee of Wal-mart who sometimes
required the assistance of an interpreter. After being employed for about two years
in the receiving department, the employee was required to attend a training session
but left when the video tape shown was not close captioned and no interpreter was
provided. After refusing to attend in the absence of an interpreter, the employee was
transferred to the maintenance department to perform janitorial duties. When he
questioned the transfer and asked for an interpreter, he was again denied. After
threatening to file a complaint with the EEOC, the employee was suspended and later
terminated from employment. He then sued and won compensatory damages and
$75,000 in punitive damages. On appeal, the tenth circuit examined the reasoning in
Kolstad and concluded that the record in Wal-mart “is sufficient to resolve the
questions of intent and agency laid out in Kolstad.” With regard to intent, the court
reiterated the facts and further noted that the store manager, who ultimately approved
the employee’s suspension, had testified that he was familiar with the ADA and its
provisions regarding accommodation, discrimination and retaliation. This was seen
as sufficient for a reasonable jury to conclude that Wal-mart intentionally
discriminated. Wal-mart had also made an agency argument, stating that liability for
punitive damages was improper because the employees who discriminated against the
employee did not occupy positions of managerial control. Looking again to the
reasoning in Kolstad, the tenth circuit noted that the Wal-mart employees had
authority regarding hiring and firing decisions and observed that such authority is an
indicium of supervisory or managerial capacity.
In two other cases courts drew on title VII jurisprudence to hold that the ADA
allows suits for workplace harassment. In Flowers v. Southern Regional Physician
Services,
80 the plaintiff claimed that her workplace environment and her performance
reviews changed dramatically when her supervisor became aware of the plaintiff’s
78 527 U.S. 526 (1999).
79 187 F.3d 1241 (10th Cir. 1999).
80 2001 U.S. App. LEXIS 5288 (5th Cir. March 30, 2001).

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HIV infection. She was eventually fired from her job. Although there was no
precedent among the courts of appeals, the fifth circuit found that “it is evident, after
a review of the ADA’s language, purpose, and remedial framework, that Congress’s
intent in enacting the ADA was, inter alia, to eradicate disability-based harassment
in the workplace.” The Fourth Circuit in Fox v. General Motors Corporation81 ruled
similarly. The plaintiff in Fox had been on disability leave and when he returned he
was placed in light duty by his doctor. He was taunted and insulted by his coworkers
and supervisors and ordered to do work beyond his physical capability. In analyzing
whether the ADA permits workplace harassment suits, the fourth circuit noted the
parallels between the ADA and Title VII and held that “for these reasons, we have
little difficulty in concluding that the ADA, like Title VII, creates a cause of action for
hostile work environment harassment.”
Public Services
General Requirements
Title II of the ADA provides that no qualified individual with a disability shall be
excluded from participation in or be denied the benefits of the services, programs, or
activities of a public entity or be subjected to discrimination by any such entity.82
“Public entity” is defined as state and local governments, any department or other
instrumentality of a state or local government and certain transportation authorities.
The ADA does not apply to the executive branch of the federal government; the
executive branch and the U.S. Postal Service are covered by section 504 of the
Rehabilitation Act of 1973.83
The Department of Justice regulations for title II contain a specific section on
program accessibility. Each service, program, or activity conducted by a public entity,
when viewed in its entirety, must be readily accessible to and usable by individuals
with disabilities. However, a public entity is not required to make each of its existing
facilities accessible.84 Program accessibility is limited in certain situations involving
historic preservation. In addition, in meeting the program accessibility requirement,
a public entity is not required to take any action that would result in a fundamental
alteration in the nature of its service, program, or activity or in undue financial and
administrative burdens.85
Supreme Court Cases
Although title II has not been the subject of as much litigation as title I, two of
the ADA cases to reach the Supreme Court have involved title II.
81 2001 U.S. App. LEXIS 6256 (4th Cir. April 13, 2001).
82 42 U.S.C. §§12131-12133.
83 29 U.S.C. §794.
84 28 C.F.R. §35.150.
85 Id.

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In the first ADA case to reach the Supreme Court, Pennsylvania Department of
Corrections v. Yeskey, supra, the Court found in a unanimous decision that state
prisons “fall squarely within the statutory definition of ‘public entity’” for title II.
Yeskey involved a prisoner who was sentenced to 18 to 36 months in a Pennsylvania
correctional facility but was recommended for placement in a motivational boot camp
for first time offenders. If the boot camp was successfully completed, the prisoner
would have been eligible for parole in six months. The prisoner was denied admission
to the program due to his medical history of hypertension and sued under the ADA.
The state argued that state prisoners were not covered under the ADA since such
coverage would “alter the usual constitutional balance between the States and the
Federal Government.” The Supreme Court rejected this argument, observing that
“the ADA plainly covers state institutions without any exception that could cast the
coverage of prisons into doubt.” The Court noted that prisoners receive many
services, including medical services, educational and vocational programs and
recreational activities so that the ADA language applying the “benefits of the services,
programs, or activities of a public entity” is applicable to state prisons.86
In Olmstead v. Georgia, supra, the Supreme Court examined issues raised by
state mental health institutions and held that title II of the ADA requires states to
place individuals with mental disabilities in community settings rather than institutions
when the State’s treatment professionals have determined that community placement
is appropriate, community placement is not opposed by the individual with a disability,
and the placement can be reasonably accommodated. “Unjustified isolation...is
properly regarded as discrimination based on disability.” The Olmstead case had been
closely watched by both disability groups and state governments. Although disability
groups have applauded the holding that undue institutionalization qualifies as
discrimination by reason of disability, the Supreme Court did place certain limitations
on this right. In addition to the agreement of the individual affected, the Court also
dealt with the issue of what is a reasonable modification of an existing program and
stated: “Sensibly construed, the fundamental-alteration component of the reasonable-
modifications regulation would allow the State to show that, in the allocation of
available resources, immediate relief for the plaintiffs would be inequitable, given the
responsibility the State has undertaken for the care and treatment of a large and
diverse population of persons with mental disabilities.” This examination of what
constitutes a reasonable modification may have implications for the interpretation of
similar concepts in the employment and public accommodations titles of the ADA.
Other Title II Cases
In Bartlett v. New York State Board of Law Examiners,87 the second circuit court
of appeals held that an individual’s dyslexia is a learning disability and that the New
86 The Supreme Court had remanded this case for consideration of whether Yeskey was an
individual with a disability. On remand, the district court held that he was not covered by the
ADA since he was not substantially limited in a major life activity. Yeskey v. Pennsylvania
Department of Corrections,
76 F.Supp. 2d 572 (M.D. Pa.1999).
87 156 F.3d 321 (2d Cir. 1998), vacated and remanded for further consideration in light of
Sutton, Murphy and Albertsons, 527 U.S. 1031 (1999). The second circuit held that plaintiff
may be disabled, 226 F.3d 69 (2d Cir. 2000), petition for certiorari filed, March 21, 2001.

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York state bar examiners were required under the ADA to make reasonable
accommodations in administering the bar exam.
In another title II case, a Hawaii regulation requiring the quarantine of all dogs,
including guide dogs for visually impaired individuals, was found to violate title II.88
Another major decision under title II involved the extent to which the ADA required
the modification of bar examination requirements. Other title II cases have involved
whether curb ramps are required,89 the application of title II to a city ordinance
allowing open burning,90 and the application of the ADA to a city’s zoning
ordinances.91
Transportation Provisions
Title II also provides specific requirements for public transportation by intercity
and commuter rail and for public transportation other than by aircraft or certain rail
operations.92 All new vehicles purchased or leased by a public entity that operates a
fixed route system must be accessible, and good faith efforts must be demonstrated
with regard to the purchase or lease of accessible use vehicles. Retrofitting of existing
buses is not required. Paratransit services must be provided by a public entity that
operates a fixed route service, other than one providing solely commuter bus
service.93 Rail systems must have at least one car per train that is accessible to
individuals with disabilities.94
88 Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996). The court stated: “Although Hawaii’s
quarantine requirement applies equally to all persons entering the state with a dog, its
enforcement burdens visually-impaired persons in a manner different and greater than it
burdens others. Because of the unique dependence upon guide dogs among many of the
visually-impaired, Hawaii’s quarantine effectively denies these persons...meaningful access
to state services, programs, and activities while such services, programs, and activities remain
open and easily accessible by others.”
89 In Kinney v. Yerusalim, 812 F.Supp. 547 (E.D. Pa. 1993), aff’d 9 F.3d 1067 (3d Cir.
1993), cert. den., 511 U.S. 1033, 128 L.Ed.2d 196, 114 S.Ct. 1545 (1994), the court found
that street repair projects must include curb ramps for individuals with disabilities. See also
28 C.F.R. §35.151(e)(1), where the Department of Justice detailed the requirements for curb
ramps.
90 Heather K. v. City of Mallard, Iowa, 946 F.Supp. 1373 (N.D.Iowa 1996).
91 Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37 (2d Cir. 1997).
92 42 U.S.C. §§12141-12165. P.L. 104-287 added a new definition. The term “commuter
rail transportation” has the meaning given the term “commuter rail passenger transportation”
in 45 U.S.C. §502(9).
93 42 U.S.C. §12143.
94 42 U.S.C. §12162.

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Remedies
The enforcement remedies of section 505 of the Rehabilitation Act of 1973, 29
U.S.C. §794a, are incorporated by reference.95 These remedies are similar to those
of title VI of the Civil Rights Act of 1964, and include damages and injunctive relief.
The Attorney General has promulgated regulations relating to subpart A of the title,96
and the Secretary of Transportation has issued regulations regarding transportation.97
Public Accommodations
Statutory Requirements
Title III provides that no individual shall 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.98
Entities that are covered by the term “public accommodation” are listed, and include,
among others, hotels, restaurants, theaters, auditoriums, laundromats, museums,
parks, zoos, private schools, day care centers, professional offices of health care
providers, and gymnasiums.99 Religious institutions or entities controlled by religious
institutions are not included on the list.
There are some limitations on the nondiscrimination requirements, and a failure
to remove architectural barriers is not a violation unless such a removal is “readily
achievable.”100 “Readily achievable” is defined as meaning “easily accomplishable
and able to be carried out without much difficulty or expense.”101 Reasonable
modifications in practices, policies or procedures are required unless they would
fundamentally alter the nature of the goods, services, facilities, or privileges or they
would result in an undue burden.102 An undue burden is defined as an action involving
“significant difficulty or expense.”103
Title III contains a specific exemption for religious entities.104 This applies when
an entity is controlled by a religious entity. For example, a preschool that is run by
95 42 U.S.C. §12133.
96 28 C.F.R. Part 35.
97 49 C.F.R. Parts 27, 37, 38.
98 42 U.S.C. §12182.
99 42 U.S.C. §12181.
100 42 U.S.C. §12182(b)(2)(A)(iv).
101 42 U.S.C. §12181.
102 42 U.S.C. §12182(b)(2)(A).
103 28 C.F.R. §36.104.
104 42 U.S.C. §12187.

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a religious entity would not be covered under the ADA; however a preschool that is
not run by a religious entity but that rents space from the religious entity, would be
covered by title III.
Title III also contains provisions relating to the prohibition of discrimination in
public transportation services provided by private entities. Purchases of over-the-road
buses are to be made in accordance with regulations issued by the Secretary of
Transportation.105
Supreme Court Cases
The nondiscrimination mandate of title III does not require that an entity permit
an individual to participate in or benefit from the services of a public accommodation
where such an individual poses a direct threat to the health or safety of others. This
issue was discussed by the Supreme Court in Bragdon v. Abbott, supra, where the
Court stated that “the existence, or nonexistence, of a significant risk must be
determined from the standpoint of the person who refuses the treatment or
accommodation, and the risk assessment must be based on medical or other objective
evidence.” Dr. Bragdon had the duty to assess the risk of infection “based on the
objective, scientific information available to him and others in his profession. His
belief that a significant risk existed, even if maintained in good faith, would not relieve
him from liability.” The Supreme Court remanded the case for further consideration
of the direct threat issue. On remand, the first circuit court of appeals held that
summary judgment was warranted finding that Dr. Bragdon’s evidence was too
speculative or too tangential to create a genuine issue of fact.106
The Supreme Court declined to review a fourth circuit court of appeals decision
regarding the direct threat exception to title III. In Montalvo v. Radcliffe,107 the
fourth circuit held that excluding a child who has HIV from karate classes did not
violate the ADA because the child posed a significant risk to the health and safety of
others which could not be eliminated by reasonable modification.
Martin v. PGA Tour and “Fundamental Alteration”
In Martin v. PGA Tour, the Supreme Court in a 7-2 decision by Justice Stevens
held that the ADA’s requirements for equal access gave a golfer with a mobility
impairment the right to use a golf cart in professional competitions.108 The ninth
105 42 U.S.C. §12184. This section was amended by P.L. 104-59 to provide that accessibility
requirements for private over-the-road buses must be met by small providers within three
years after the issuance of final regulations and with respect to other providers, within two
years after the issuance of such regulations.
106 Abbott v. Bragdon, 163 F.3d 87 (1st Cir. 1998), cert. den., 526 U.S. 1131(1999).
107 167 F.3d 873 (4th Cir. 1999), cert. denied, 528 U.S. 813 (1999).
108 2001 U.S. LEXIS 4115 (May 29, 2001).

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circuit had ruled that the use of the cart was permissible since it did not
“fundamentally alter” the nature of the competition.109
Title III of the ADA defines the term “public accommodation,” specifically listing
golf courses.110 The majority opinion looked at this definition and the general intent
of the ADA to find that golf tours and their qualifying rounds “fit comfortably within
the coverage of title III.” The Court then discussed whether there was a violation of
the substantive nondiscrimination provision of title III. The ADA states that
discrimination includes “a failure to make reasonable modifications in policies,
practices, or procedures, when such modifications are necessary to afford such goods,
services, facilities, privileges, advantages, or accommodations to individuals with
disabilities, unless the entity can demonstrate that making such modifications would
fundamentally alter the nature of such goods, services, facilities, privileges,
advantages, or accommodations.
”111
In theory, the Court opined, there might be a fundamental alteration of a golf
tournament in two ways: (1) an alteration in an essential aspect of the game, such as
changing the diameter of the hole, might be unacceptable even if it affected all players
equally, or (2) a less significant change that has only a peripheral impact on the game
might give a golfer with a disability an advantage over others and therefore
fundamentally alter the rules of competition. Looking at both these types of
situations, Justice Stevens found that a waiver of the walking rule for Casey Martin
109 204 F.3d 994 (9th Cir. 2000).
110 42 U.S.C. §12181(7).
111 42 U.S.C. §12182(b)(2)(A)(ii)(emphasis added). The Department of Justice regulations
echo the statutory language and provide the following illustration. “A health care provider
may refer an individual with a disability to another provider if that individual is seeking, or
requires, treatment or services outside of the referring provider’s area of specialization, and
if the referring provider would make a similar referral for an individual without a disability
who seeks or requires the same treatment or services.” 28 C.F.R. §36.302. The concept of
fundamental alteration did not originate in the statutory language of the ADA but was derived
from Supreme Court interpretation of section 504 of the Rehabilitation Act of 1973, 29
U.S.C. §794, which, in part, prohibits discrimination against an individual with a disability
in any program or activity that receives federal financial assistance and was the model on
which the ADA was based. In Southeastern Community College v. Davis, 442 U.S. 397
(1979), the Supreme Court addressed a suit by a hearing impaired woman who wished to
attend a college nursing program. The college rejected her application because it believed her
hearing disability made it impossible for her to participate safely in the normal clinical training
program and to provide safe patient care. The Supreme Court found no violation of section
504 and held that it did “not encompass the kind of curricular changes that would be
necessary to accommodate respondent in the nursing program.” Since Davis could not
function in clinical courses without close supervision, the Court noted that the college would
have had to limit her to academic courses. The Court further observed that “whatever benefits
respondent might realize from such a course of study, she would not receive even a rough
equivalent of the training a nursing program normally gives. Such a fundamental alteration
in the nature of a program is far more than the ‘modification’ the regulation requires.” (At
409-410) In conclusion, the Court found that “nothing in the language or history of § 504
reflects an intention to limit the freedom of an educational institution to require reasonable
physical qualifications for admission to a clinical training program.” (At 414).

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did not amount to a fundamental alteration. He noted that the essence of the game
was shot-making and that the walking rule was not an indispensable feature of
tournament golf as golf carts are allowed on the Senior PGA Tour as well as certain
qualifying events. In addition, Justice Stevens found that the fatigue from walking the
approximately five miles over five hours was not significant. Regarding the question
of whether allowing Casey Martin to use a cart would give him an advantage, the
majority observed that an individualized inquiry must be made concerning whether a
specific modification for a particular person’s disability would be reasonable under the
circumstances and yet not be a fundamental alteration. In examining the situation
presented, the majority found that Casey Martin endured greater fatigue even with a
cart than other contenders do by walking.
Justice Scalia, joined by Justice Thomas, wrote a scathing dissent describing the
majority’s opinion as distorting the text of Title III, the structure of the ADA and
common sense. The dissenters contended that title III of the ADA applies only to
particular places and persons and does not extend to golf tournaments. The dissent
also contended that “the rules are the rules,” that they are by nature arbitrary, and
there is no basis for determining any of them “non-essential.”
ADA and the Internet
On November 2, 1999, the National Federation of the Blind (NFB) filed a
complaint against America Online (AOL) in federal district court alleging that AOL
violated title III of the ADA.112 NFB and other blind plaintiffs stated that they could
only independently use computers by concurrently running screen access software
programs for the blind that convert visual information into synthesized speech or
braille. They alleged that AOL had designed its service so that it is incompatible with
screen access software programs for the blind, failing “to remove communications
barriers presented by its designs thus denying the blind independent access to this
service, in violation of Title III of the ADA, 42 U.S.C. §12181, et seq.”113 This
complaint attracted wide spread interest since the implications are significant. The
case was settled on July 26, 2000.114
112 It should be noted that section 508 of the Rehabilitation Act of 1973, 29 U.S.C. §794(d),
as amended by P.L. 105-220, requires that the electronic and information technology used by
federal agencies be accessible to individuals with disabilities, including employees and
members of the public. On December 21, 2000 the Architectural and Transportation Barriers
Compliance Board (Access Board) issued standards providing technical criteria specific to
various types of technologies and performance-based requirements.65 Fed. Reg. 80500 (Dec.
21, 2000). To be published at 36 C.F.R. Part 1194. On January 22, 2001, the Federal
Acquisition Regulation (FAR) Council published a proposed rule to implement section 508.
[http://www.access-board.gov/sec508/FARnotice.htm] To be published at 48 C.F.R. Parts
2,7, 10, 11, 12, and 39.
113 National Federation of the Blind v. America Online, Complaint,
[http://www.nfb.org/aolcompl.htm] (Nov. 2, 1999).
114 The settlement agreement can be found at the National Federation of the Blind website,
[http://www.nfb.org]

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One of the relevant issues in resolving this novel problem is whether a place of
public accommodation is limited to actual physical structures. The first circuit court
of appeals has held that public accommodations are not so limited, reasoning that “to
exclude this broad category of businesses from the reach of Title III and limit the
application of Title III to physical structures which persons must enter to obtain
goods and services would run afoul of the purposes of the ADA.”115 The seventh
circuit in Doe v. Mutual of Omaha Insurance Company116 agreed with the first
circuit. In Doe Judge Posner discussed the nondiscrimination requirements of title III
in the context of a case involving a cap on insurance policies for AIDS and AIDS
related complications and found that “The core meaning of this provision, plainly
enough, is that the owner or operator of a store, hotel, restaurant, dentist’s office,
travel agency, theater, Web site, or other facility (whether in physical space or in
electronic space)...that is open to the public cannot exclude disabled persons from
entering the facility and, once in, from using the facility in the same way that the
nondisabled do.”117 The court reasoned that “the owner or operator of, say, a camera
store can neither bar the door to the disabled nor let them in but then refuse to sell its
cameras to them on the same terms as to other customers.”118 However, Judge
Posner found no violation of the ADA in this case and concluded that “section 302(a)
does not require a seller to alter his product to make it equally valuable to the disabled
and nondisabled....”119
Most recently, the second circuit joined the first and seventh circuits in finding
that the ADA is not limited to physical access. In Pallozzi v. Allstate Life Insurance
Co.,
120 the court stated that “Title III’s mandate that the disabled be accorded ‘full and
equal enjoyment of goods, [and] services....of any place of public accommodation,’
suggests to us that the statute was meant to guarantee them more than mere physical
access.”
On the other hand, the third, sixth and ninth circuits apparently restrict the
concept of public accommodations to physical places. In Stoutenborough v. National
Football League, Inc.,
121 the sixth circuit dealt with a case brought by an association
of individuals with hearing impairments who filed suit against the National Football
League (NFL) and several television stations under title III alleging that the NFL’s
blackout rule discriminated against them since they had no other way of accessing
football games when live telecasts are prohibited. The sixth circuit rejected this
allegation holding that the prohibitions of title III are restricted to places of public
115 Carparts Distribution Center, Inc. v. Automotive Wholesalers’ Association of New
England, Inc.,
37 F.3d 12 (1st Cir. 1994).
116 179 F.3d 557 (7th Cir. 1999), cert. denied, 528 U.S. 1106 (2000).
117 Id. at 559 (emphasis added.)
118 Id.
119 Id. at 563.
120 198 F.3d 28 (2d Cir. 1999).
121 59 F.3d 580 (6th Cir. 1995), cert. denied, 516 U.S. 1028 (1995).

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accommodations. Similarly, in Parker v. Metropolitan Life Insurance Co.122 the sixth
circuit held that the ADA’s nondiscrimination prohibition relating to public
accommodations did not prohibit an employer from providing employees a disability
plan that provided longer benefits for employees disabled by physical illness than those
disabled by mental illness. In arriving at this holding, the sixth circuit found that “a
benefit plan offered by an employer is not a good offered by a place of public
accommodation....A public accommodation is a physical place.”123
In Ford v. Schering-Plough Corporation,124 the third circuit found a disparity in
benefits for physical and mental illnesses did not violate the ADA and found that the
disability benefits at issue did not fall within title III. The court stated “This is in
keeping with the host of examples of public accommodations provided by the ADA,
all of which refer to places.”125 This conclusion was found to be in keeping with
judicial decisions under title II of the Civil Rights Act of 1964, 42 U.S.C. §2000(a).
Another issue under title III is whether franchisers are subject to the title. In Nef
v. American Dairy Queen Corp., the fifth circuit court of appeals found that a
franchiser with limited control over the store a franchisee runs is not covered under
title III of the ADA.126
Remedies
The remedies and procedures of title II of the Civil Rights Act of 1964 are
incorporated in title III of the ADA. Title II of the Civil Rights Act has generally
been interpreted to include injunctive relief, not damages. In addition, state and local
governments can apply to the Attorney General to certify that state or local building
codes meet or exceed the minimum accessibility requirements of the ADA. The
Attorney General may bring pattern or practice suits with a maximum civil penalty of
$50,000 for the first violation and $100,000 for a violation in a subsequent case. The
monetary damages sought by the Attorney General do not include punitive damages.
Courts may also consider an entity’s “good faith” efforts in considering the amount
of the civil penalty. Factors to be considered in determining good faith include
whether an entity could have reasonably anticipated the need for an appropriate type
of auxiliary aid to accommodate the unique needs of a particular individual with a
disability. Regulations relating to public accommodations have been promulgated by
the Department of Justice127 and regulations relating to the transportation provisions
of title III have been promulgated by the Department of Transportation.128
122 121 F.3d 1006 (6th Cir. 1997), cert. denied, 522 U.S. 1084 (1998).
123 Id. At 1010. See also, Lenox v. Healthwise of Kentucky, 149 F.3d 456 (6th Cir. 1999).
124 145 F.3d 601(3d Cir. 1998), cert. denied, 525 U.S. 1093 (1999).
125 Id. At 612.
126 58 F.3d 1063 (5th Cir. 1995), cert. den., 516 U.S. 1045 (1996).
127 28 C.F.R. Part 36.
128 49 C.F.R. Parts 27, 37, 38.

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Telecommunications
Title IV of the ADA amends title II of the Communications Act of 1934129 by
adding a section providing that the Federal Communications Commission shall ensure
that interstate and intrastate telecommunications relay services are available, to the
extent possible and in the most efficient manner, to hearing impaired and speech
impaired individuals. Any television public service announcement that is produced or
funded in whole or part by any agency or instrumentality of the federal government
shall include closed captioning of the verbal content of the announcement. The FCC
is given enforcement authority with certain exceptions.130
Miscellaneous Provisions in Title V
Title V contains an amalgam of provisions, several of which generated
considerable controversy during ADA debate. Section 501 concerns the relationship
of the ADA to other statutes and bodies of law. Subpart (a) states that “except as
otherwise provided in this Act, nothing in the Act shall be construed to apply a lesser
standard than the standards applied under title V of the Rehabilitation Act ... or the
regulations issued by Federal agencies pursuant to such title.” Subpart (b) provides
that nothing in the Act shall be construed to invalidate or limit the remedies, rights
and procedures of any federal, state or local law that provides greater or equal
protection. Nothing in the Act is to be construed to preclude the prohibition of or
restrictions on smoking. Subpart (d) provides that the Act does not require an
individual with a disability to accept an accommodation which that individual chooses
not to accept.131
Subpart (c) of section 501 limits the application of the Act with respect to the
coverage of insurance; however, the subsection may not be used as a subterfuge to
evade the purposes of titles I and III. The exact parameters of insurance coverage
under the ADA are somewhat uncertain. As the EEOC has stated: “the interplay
between the nondiscrimination principles of the ADA and employer provided health
insurance, which is predicated on the ability to make health-related distinctions, is
both unique and complex.”132 The eighth circuit court of appeals in Henderson v.
Bodine Aluminum, Inc.
issued a preliminary injunction compelling the plaintiff’s
employer to pay for chemotherapy that required an autologous bone marrow
129 47 U.S.C. §§201 et seq.
130 47 U.S.C. §255.
131 29 U.S.C. §§790 et seq.
132 EEOC, “Interim Policy Guidance on ADA and Health Insurance,” BNA’s Americans with
Disabilities Act Manual 70:1051 (June 8, 1993). This guidance deals solely with the ADA
implications of disability-based health insurance plan distinctions and states that “insurance
distinctions that are not based on disability, and that are applied equally to all insured
employees, do not discriminate on the basis of disability and so do not violate the ADA.”

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transplant.133 The plaintiff was diagnosed with an aggressive form of breast cancer
and her oncologist recommended entry into a clinical trial that randomly assigns half
of its participants to high dose chemotherapy that necessitates an autologous bone
marrow transplant. Because of the possibility that the plaintiff might have the more
expensive bone marrow treatment, the employer’s health plan refused to precertify the
placement noting that the policy covered high dose chemotherapy only for certain
types of cancer, not breast cancer. The court concluded that, “if the evidence shows
that a given treatment is non-experimental — that is, if it is widespread, safe, and a
significant improvement on traditional therapies — and the plan provides the
treatment for other conditions directly comparable to the one at issue, the denial of
treatment violates the ADA.”134
Section 502 abrogates the Eleventh Amendment state immunity from suit and
was discussed in the section on public services. Section 503 prohibits retaliation and
coercion against an individual who has opposed an act or practice made unlawful by
the ADA. Section 504 requires the Architectural and Transportation Barriers
Compliance Board (ATBCB) to issue guidelines regarding accessibility. Section 505
provides for attorneys’ fees in “any action or administrative proceeding” under the
Act. Section 506 provides for technical assistance to help entities covered by the Act
in understanding their responsibilities. Section 507 provides for a study by the
National Council on Disability regarding wilderness designations and wilderness land
management practices and “reaffirms” that nothing in the Wilderness Act is to be
construed as prohibiting the use of a wheelchair in a wilderness area by an individual
whose disability requires the use of a wheelchair. Section 513 provides that “where
appropriate and to the extent authorized by law, the use of alternative means of
dispute resolution ... is encouraged....”135 Section 514 provides for severability of any
provision of the Act that is found to be unconstitutional.
The coverage of Congress was a major controversy during the House-Senate
conference on the ADA. Although the original language of the ADA did provide for
some coverage of the legislative branch, Congress expanded upon this in the
Congressional Accountability Act, P.L. 104-1. The major area of expansion was the
incorporation of remedies that were analogous to those in the ADA applicable to the
private sector.136
133 70 F.3d 958 (8th Cir. 1995).
134 See also Rogers v. Department of Health and Environmental Control, 174 F.3d 431 (4th
Cir. 1999), where the fourth circuit court of appeals held that the ADA does not require
employers to offer the same long-term disability insurance benefits for mental and physical
disabilities.
135 42 U.S.C. §12212.
136 For a more detailed discussion of the application of the ADA to Congress see CRS Report
95-557, Congressional Accountability Act of 1995. Congress has also applied the
employment and public accommodation provisions of the ADA to the Executive Office of the
President. P.L. 104-331 (October 26, 1996).

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