Order Code 98-921 A
Report for Congress
Received through the CRS Web
The Americans with Disabilities Act
(ADA): Statutory Language
and Recent Issues
Updated April 23, 2003
Nancy Lee Jones
American Law Division
Congressional Research Service ˜ The Library of Congress
The Americans with Disabilities Act (ADA): Statutory
Language and Recent Issues
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 sixteen ADA cases, including one
case in the 2002-2003 Supreme Court term. 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.
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Definition of Disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Statutory Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Regulatory Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Supreme Court Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Bragdon v. Abbott . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Sutton v. United Airlines and Murphy v. United Parcel Service . . . . . . 6
Albertsons, Inc. v. Kirkingburg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Toyota Motor Manufacturing of Kentucky v. Williams . . . . . . . . . . . . . 8
Other Judicial Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
General Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Statutory and Regulatory Requirements . . . . . . . . . . . . . . . . . . . . . . . 10
Clackamas Gastroenterology Associates P.C. v. Wells . . . . . . . . . . . . 12
Application of the Eleventh Amendment:
Garrett v. University of Alabama . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Other Supreme Court Employment Cases . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Receipt of SSI Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
“Qualified” Individual with a Disability . . . . . . . . . . . . . . . . . . . . . . . 19
Collective Bargaining Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Reasonable Accommodations and Seniority Systems . . . . . . . . . . . . . 21
Employment Inquiries Relating to a Disability . . . . . . . . . . . . . . . . . . . . . . 22
Defenses to a Charge of Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Drugs, Alcohol and Employer Conduct Rules . . . . . . . . . . . . . . . . . . . . . . 23
Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Public Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
General Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Supreme Court Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Other Title II Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Transportation Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Barnes v. Gorman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Public Accommodations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Statutory Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Supreme Court Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Martin v. PGA Tour and “Fundamental Alteration” . . . . . . . . . . . . . . . . . . 32
ADA and the Internet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Other Judicial Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Telecommunications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Title V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Attorneys’ Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Other Title V Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Legislation Relating to the ADA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
The Americans with Disabilities Act (ADA):
Statutory Language and Recent Issues
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 sixteen ADA cases, including one in the 20022003 Supreme Court term, Clackamas Gastroenterology Associates v. Wells.2 In the
2001-2002 term, the Court decided four ADA cases, U.S. Airways Inc. v. Barnett,
Toyota Motor Manufacturing, Kentucky Inc. v. Williams, Chevron U.S.A., Inc. v.
Echazabal and Barnes v. Gorman. All of these cases from the 2001-2002 term
narrowed the scope of the ADA. Three cases involved employment issues and all
three cases limited the rights of employees. In the 2002-2003 term, the Supreme
Court granted certiorari in two cases: Medical Board of California v. Hason3 and
42 U.S.C. §12102(b)(1).
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);
Garrett v. University of Alabama,531 U.S. 356 (2001); PGA Tour v. Martin,532 U.S. 661
(2001); Buckhannon Board and Care Home., Inc. v. West Virginia Department of Human
Resources, 532 U.S. 598 (2001); U.S. Airways Inc. v. Barnett, 535 U.S. 391 (2002); Toyota
Motor Manufacturing v. Williams, 534 U.S. 184 (2002); Chevron USA Inc. v. Echazabal,
536 U.S. 73 (2002); Barnes v. Gorman, 536 U.S. 181 (2002); and Clackamas
Gastroenterology Associates, P.C. v. Wells, 2003 U.S. LEXIS 3240 (April 22, 2003). The
three cases decided in 1998 were Bragdon v. Abbott, 524 U.S. 624 (1998); Pennsylvania
Department of Prisons v. Yeskey, 524 U.S. 206 (1998); and Wright v. Universal Maritime
Service Corporation, 525 U.S. 70 (1998). For a discussion limited to Supreme Court
decisions on the ADA see CRS Report RS20246, The Americans with Disabilities Act
(ADA): Supreme Court Decisions.
279 F.3d 1167 (9th Cir. 2002), cert. granted 71 U.S.L.W. 3347 (Nov. 19, 2002).
Clackamas Gastroenterology Associates, P.C. v. Wells.4 Clackamas was recently
decided and the Court, in an unusual move, dismissed the Hason case. In Hason the
Court was to address the issue of whether the Eleventh Amendment bars suit under
title II of the ADA against the California Medical Board for the denial of a medical
license due to the applicant’s mental illness. This case would have been the latest in
a series of federalism cases and was closely watched. Disability advocates had
lobbied California officials to ask for dismissal.
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
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
The ADA is a civil rights statute; it does not provide grant funds to help entities
comply with its requirements. It does include a section on technical assistance which
authorizes grants and awards for the purpose of technical assistance such as the
dissemination of information about rights under the ADA and techniques for
effective compliance.7 However, there are tax code provisions which may assist
certain businesses or individuals.8
271 F.3d 903, 905 (9th Cir. 2001), cert. granted, 71 U.S.L.W. 3233 (Oct. 8, 2002).
29 U.S.C. §794.
42 U.S.C. §12201(a).
42 U.S.C. §12206.
See CRS Report RS20555, Business Tax Provisions that Benefit Persons with
Disabilities, and CRS Report RS21006, Additional Standard Tax Deduction for the Blind:
A Description and Assessment. See also GAO Report GAO-03-39, “Business Tax
Incentives: Incentives to Employ Workers with Disabilities Receive Limited Use and Have
an Uncertain Impact” (December 2002).
Definition of Disability
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.”9
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 504.10
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.11 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.12 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.”13 The definitional section
of the Rehabilitation Act was also amended to create uniformity with this definition.
Section 508 provides that an individual shall not be considered to have a
disability solely because that individual is a transvestite.14 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.15
The issues involving the definition of “disability” have been among the most
controversial under the ADA. The Equal Employment Opportunity Commission
42 U.S.C. § 12102(2).
29 U.S.C. §706(8).
42 U.S.C. §12210.
H.Rept. 101-596, 101st Cong., 2d Sess. 64; 1990 U.S. Code Cong. & Ad. News 573.
42 U.S.C. §12208.
42 U.S.C. §12211.
(EEOC) has issued regulations discussing the requirements of the definition which
it amended following the Supreme Court’s decision in Sutton and Murphy.16 The
EEOC also issued detailed guidance on the definition on March 15, 1995 which was
also amended following the Supreme Court’s decisions.17 This guidance states 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. The guidance also includes the EEOC’s interpretation
of the third prong of the definition — “regarded as having a disability.” This
category is seen by EEOC as including individuals who are subjected to
discrimination on the basis of genetic information relating to illness, disease or other
The EEOC issued guidance to its field investigators to help them analyze ADA
charges after the Supreme Court’s decisions in Sutton and Murphy. This guidance
emphasizes a case by case determination regarding issues of whether an individual
has a disability and whether that individual is “qualified.” 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.”19
At the time of the Sutton decision, the EEOC’s regulations and guidance stated
that the determination of whether a condition constitutes an impairment must be
made without regard to mitigating measures. Rejecting this 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 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
29 C.F.R. §§1630 et seq.
EEOC Compliance Manual, Section 902; BNA’s Americans with Disabilities Act Manual
70:1131. [http://www.eeoc.gov/docs/902cm.html] The issue of coverage of genetic
disorders has been widely discussed. See CRS Report RL30006, Genetic Information:
Legal Issues Relating to Discrimination and Privacy.
EEOC, “Instructions for Field Offices: Analyzing ADA Charges After Supreme Court
De c i s i o n s Ad d r e s sing ‘Disa b i l i t y’ a n d ‘ Qu a l i f i e d ’ , ( J u l y 1 9 9 9 ) ,
under the ADA.20 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.21
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.22 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....”23 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
the ADA requires proof that the limitation on a major life activity by the impairment
is substantial. Recently in Toyota Motor Manufacturing v. Williams24 the Court
examined what was a “substantial” limitation of a major life activity.
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.25 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
EEOC Compliance Manual, Vol. 2, section 902, order 915.002,902-45 (1995).
See also Toyota Motor Manufacturing v. Williams,534 U.S. 184 (2002), where the Court
also discussed the definition of disability and noted: “The persuasive authority of the EEOC
regulations is less clear....Because both parties accept the EEOC regulations as reasonable,
we assume without deciding that they are, and we have no occasion to decide what level of
deference, if any, they are due.”
524 U.S. 624 (1998). For a more detailed discussion of this decision see CRS Report 98599, The Americans with Disabilities Act: HIV Infection is Covered Under the Act.
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
534 U.S. 184 (2002).
524 U.S. 624, 118 S.Ct. 2196, 141 L.Ed. 540 (1998).
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.26
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.
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
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.
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
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
“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. The Supreme
Court in Toyota Motor Manufacturing v. Williams27 examined whether the plaintiff
was an individual with a disability under the first prong of the definition of individual
with a disability; that is, whether she had a physical or mental impairment that
substantially limits a major life activity. There was no dispute regarding the fact that
the plaintiff’s carpal tunnel syndrome and tendinitis were physical impairments. The
difference of opinion involved whether these impairments substantially limited the
plaintiff in the major life activity of performing manual tasks. In order to resolve this
issue, Justice O’Connor, writing for the unanimous Court, determined that the word
substantial “clearly precluded impairments that interfere in only a minor way with the
performance of manual tasks.” Similarly, the Court found that the term “major life
activity” “refers to those activities that are of central importance to daily life.”
Finding that these terms are to be “interpreted strictly,”28 the Court held that “to be
substantially limited in performing manual tasks, an individual must have an
impairment that prevents or severely restricts the individual from doing activities that
are of central importance to most people’s daily lives.” Significantly, the Court also
stated that “[t]he impairment’s impact must also be permanent or long-term.” The
Supreme Court’s opinion emphasized the need for an individualized assessment of
the effect of the impairment. Justice O’Connor found it insufficient to merely submit
evidence of a medical diagnosis of an impairment; rather, the individual must offer
evidence that the extent of the impairment in their own situation is substantial.29
Generally Williams has been characterized as a win for employers since the
Court held that the terms “major life activity” and “substantial” were to be interpreted
strictly. However, one commentator has predicted that the decision will not be “a
clean win for employers” since litigation will now be complicated by disputes over
which life activities are affected by the disability.30
Other Judicial Decisions
Numerous lower courts have addressed issues involving the definition of
disability. These cases have involved such conditions as obesity,31 cancer,32
534 U.S. 184 (2002).
Confirmation of the need for strict interpretation was found by the Court in the ADA’s
statement of findings and purposes where Congress stated that “some 43,000,000 Americans
have one or more physical or mental disabilities.” [42 U.S.C. §12101(a)(1)] Justice
O’Connor observed that “if Congress had intended everyone with a physical impairment that
precluded the performance of some isolated, unimportant, or particularly difficult manual
task to qualify as disabled, the number of disabled Americans would surely have been much
For a more detailed discussion of this decision see CRS Report RS21105, The
Americans with Disabilities Act: Toyota Motor Manufacturing v. Williams, by Nancy Lee
Tony Mauro, “Court’s ADA Rulings Aren’t Winning Kudos for Clarity,” New Jersey L.
J. (May 6, 2002).
The EEOC’s ADA regulations state that absent unusual circumstances, “obesity is not
diabetes,33 and multiple chemical sensitivity.34 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.”35
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.36
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
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
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).
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.
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.
Tangires v. The Johns Hopkins Hospital, 79 F.Supp.2d 587 (D. Md. 2000), aff’d 230
F.3d 1354 (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.
For a more detailed discussion of these decisions see CRS Report RS20432, The
Americans with Disabilities Act: Post Sutton Decisions on Definition of Disability.
Statutory and Regulatory 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 employment.37 The term employer is
defined as a person engaged in an industry affecting commerce who has 15 or more
employees.38 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.39
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.”40 The ADA incorporates many of the concepts set forth in the regulations
42 U.S.C. §12112(a). Recently two courts of appeal have held that this prohibition of
discrimination in the “terms, conditions, or privileges of employment” creates a viable cause
of action for disability-based harassment. See Flowers v. Southern Reg’l Physician Servs,
Inc., 247 F.3d 229 (5th Cir. 2001); Fox v, General Motors Corp., 247 F.3d 169 (4th Cir.
42 U.S.C. §12111(5).
P.L. 102-166 added this provision.
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). In Fraizier v. Simmons, 254 F.3d
1247 (10th Cir. 2001), the tenth circuit held that a crime investigator with MS was not
otherwise qualified to perform his job duties since it would be very difficult for him to
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.41
“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.42 “Undue hardship” is defined as “an
action requiring significant difficulty or expense.”43 Factors to be considered in
determining whether an action would create an undue hardship include the nature and
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, 199944 which was
amended on October 17, 2002 to reflect the Supreme Court’s decision in U.S.
Airways v. Barnett. 45 Although much of the guidance reiterates longstanding EEOC
interpretations in a question and answer format, the EEOC also took issue with some
judicial interpretations.46 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; and
stand or walk for prolonged periods, to run or to physically restrain persons. Similarly, a
nurse with a back injury that prevented her from lifting more than fifteen or twenty pounds
was not a qualified individual with a disability since the ability to lift fifty pounds was an
essential function of her job. Phelps v. Optima Health, Inc., 251 F.3d 21 (1st Cir. 2001).
See 45 C.F.R. Part 84.
42 U.S.C. § 12111(9).
42 U.S.C. §12111(10).
EEOC, “EEOC Enforcement Guidance on Reasonable Accommodation and Undue
Hardship Under the Americans with Disabilities Act,” No. 915.002 (March 1, 1999).
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
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.”).
Issues regarding the amount of money that must be spent on reasonable
accommodations have also arisen. The EEOC regulations47 and guidance provide
that an employer does not have to provide a reasonable accommodation that would
cause an “undue hardship” to the employer.48 However, the seventh circuit in Vande
Zande v. State of Wisconsin Department of Administration49 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.”50
Clackamas Gastroenterology Associates P.C. v. Wells. The Supreme
Court recently examined the definition of the term “employee” under the ADA in
Clackamas Gastroenterology Associates P.C. v. Wells.51 In Clackamas, the Court
held in a 7-2 decision written by Justice Stevens, that the EEOC’s guidelines
concerning whether a shareholder-director is an employee were the correct standard
to use. Since the evidence was not clear, the case was remanded for further
proceedings. Clackamas Gastroenterology Associates is a medical clinic in Oregon
that employed Ms. Wells as a bookkeeper from 1986-1997. After her termination
from employment, Ms. Wells brought an action alleging unlawful discrimination on
the basis of discrimination under title I of the ADA. The clinic denied that it was
covered by the ADA since it argued that it did not have 15 or more employees for the
20 weeks per year required by the statute. The determination of coverage was
dependent on whether the four physician-shareholders who owned the professional
corporation were counted as employees.
The Court first looked to the definition of employee in the ADA which states
that an employee is “an individual employed by an employer.”52 This definition was
described as one which is “completely circular and explains nothing.” The majority
29 C.F.R. §1630.9.
44 F.3d 538 (7th Cir. 1995).
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.
2003 U.S. LEXIS 3240 (April 22, 2003).
42 U.S.C. §12111(4).
then looked to common law, specifically the common law element of control. This
is the position advocated by the EEOC. The EEOC has issued guidelines which list
six factors to be considered in determining whether the individual acts independently
and participates in managing the organization or whether the individual is subject to
the organization’s control and therefore an employee. These six factors are:
“Whether the organization can hire or fire the individual or set the rules and
regulations of the individual’s work; Whether and, if so, to what extent the
organization supervises the individual’s work; Whether the individual reports to
someone higher in the organization; Whether and, if so, to what extent the individual
is able to influence the organization; Whether the parties intended that the individual
be an employee, as expressed in written agreements or contracts; and whether the
individual shares in the profits, losses, and liabilities of the organization.”53
Justice Stevens, writing for the majority found that some of the district court’s
findings of fact, when considered in light of the EEOC’s standard, appeared to favor
the conclusion that the four physicians were not employees of the clinic. However,
since there was some evidence that might support the opposite conclusion, the Court
remanded the case for further proceedings.
Justice Ginsburg, joined by Justice Breyer, dissented from the majority’s
opinion. The dissenters argued that the Court’s opinion used only one of the
common-law aspects of a master-servant relationship. In addition, Justice Ginsburg
noted that the physician-shareholders argued they were employees for the purposes
of other statutes, notably the Employee Retirement Income Security Act of 1974
(ERISA) and stated “I see no reason to allow the doctors to escape from their choice
of corporate form when the question becomes whether they are employees for the
purposes of federal antidiscrimination statutes.”
Application of the Eleventh Amendment: Garrett v. University
On February 21, 2001, the Supreme Court decided Garrett v. University of
Alabama.54 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
title I of the ADA, it has broad implications regarding federal-state power55 and
emphasizes the difficulty of drafting federal legislation under section 5 of the
Fourteenth Amendment that will withstand Eleventh Amendment scrutiny.56 A
EEOC Compliance Manual §605:0009.
For a more detailed discussion of Garrett see CRS Report RS20828, University of
Alabama v. Garrett: Federalism Limits on the Americans with Disabilities Act.
For a detailed discussion of federalism see CRS Report RL30315, Federalism and the
Constitution: Limits on Congressional Power.
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
similar federalism issue is currently before the Court regarding title II of the ADA in
Medical Board of California v. Hason.
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,57 Florida Prepaid Postsecondary Educ. Expense Board v. College Savings
Bank,58 and Kimel v. Florida Board of Regents.59 They reiterated the principle that
the Congress may abrogate state immunity from suit under the Fourteenth
Amendment and found that there were three conditions necessary for successful
Congressional power is limited to the enactment of “appropriate”
legislation to enforce the substantive provisions of the Fourteenth
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.
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.
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).
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).
528 U.S. 62 (2000).
The ADA uses both the Fourteenth Amendment and the Commerce Clause of
the Constitution as its constitutional basis.60 It also specifically abrogates state
immunity under the Eleventh Amendment.61 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
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,62 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 be required, they have to come from positive
law and not through the Equal Protection Clause.”63
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
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).
42 U.S.C. §12202.
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.
Slip op. at 9-10.
only in response to state transgressions.”64 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.”65
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.66 The ADA’s accommodation requirements were seen
as “far exceed(ing) what is constitutionally required.”67 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....”68 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.
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
Slip op. at 10.
Slip op. at 11.
Slip op. at 14.
Slip op. at 14.
Slip op. at 16.
Concurring op. at 3.
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.”70 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.”71
University of Alabama v. Garrett is a major decision, further emphasizing the
Court’s federalism theories and raising separation of powers issues as well.72
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.73 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.
Several courts of appeals have examined the ADA and state sovereign immunity
issues subsequent to the Supreme Court’s decision in Garrett. The eighth circuit
court of appeals in Gibson v. Arkansas Department of Correction,74 discussed
Garrett’s, language on the limited nature of its holding, and held that state officials
may be sued for prospective relief under title I of the ADA. Although the state had
argued that the Garrett discussion was mere dicta, the court of appeals disagreed
stating: “there is no reason to think that Congress intended to limit the availability of
Dissenting op. at 3.
Dissenting op. at 9.
Linda Greenhouse, “The High Court’s Target: Congress,” The New York Times wk 3 (Feb
265 F.3d 718 (8th Cir. 2001).
prospective relief against states who continued to discriminate against the disabled.”75
In Reickenbacker v. Foster76 the fifth circuit held that the state department of
corrections was entitled to sovereign immunity with respect to mentally ill prisoners’
ADA claims. The ninth circuit in Demshki v. Monteith77 held that the ruling in
Garrett was applicable to a claim brought under title V of the ADA regarding
retaliation since the claim involved an employment issue. In addition to judicial
decisions, at least one state has enacted legislation waiving its immunity for ADA
The Supreme Court continues to examine federalism issues, including the
question of the application of the Eleventh Amendment to title II of the ADA. In
the 2001-2002 term, the Court held in Federal Maritime Commission v. South
Carolina State Ports Authority79 that the states have Eleventh Amendment immunity
from private lawsuits adjudicated by federal administrative agencies. The Supreme
Court granted certiorari in Nevada Department of Human Resources v. Hibbs, to
decide whether state employees can sue their agencies under the Family and Medical
Leave Act (FMLA).80 The Court had granted certiorari in Medical Board of
California v. Hason to decide the application of title II of the ADA but dismissed the
Hason involved a doctor who was denied a medical license by the medical board
of California because he had been treated for depression and drug dependency. He
sued under title II of the ADA which prohibits discrimination against individuals
with disabilities by states or localities. The state argued that the Eleventh
Amendment barred suits against the state medical board under the ADA but the ninth
circuit court of appeals rejected this argument, finding that the state was subject to
suit under the ADA. The Supreme Court granted certiorari to address the Eleventh
Amendment issue but dismissed the case. As was noted above, in Garrett the record
in the ADA regarding employment discrimination was found to be insufficient to
abrogate Eleventh Amendment immunity. However, Chief Justice Rehnquist writing
See also Grey v. Wilburn, 270 F.3d 607 (8th Cir. 2001), where the court held that the
Eleventh Amendment did not bar a claim by a securities agent with bipolar affective
disorder for injunctive relief regarding registration as a securities agent.
274 F.3d 974 (5th Cir. 2001).
255 F.3d 986 (9th Cir. 2001).
Chapter 159, S.F. No. 1614 (Minnesota Sessions Laws, May 22, 2001). “An employee,
former employee, or prospective employee of the state who is aggrieved by the state’s
violation of the Americans with Disabilities Act of 1990...may bring a civil action against
the state in any court of competent jurisdiction for such legal or equitable relief as will
effectuate the purposes of the act.” This Minnesota law also waived immunity regarding the
Age Discrimination in Employment Act, the Fair Labor Standards Act and the Family and
Medical Leave Act.
535 U.S. 743 (2002).
273 F.3d 844 (9th Cir. 2001); cert. granted, 122 S.Ct. 2618; 153 L.Ed.2d 802 (March 19,
2002), argued January 15, 2003.
279 F.3d 1167 (9th Cir. 2002), cert. granted, 71 U.S.L.W. 3347 (Nov. 19, 2002), cert.
dismissed April 7, 2003, [http://www.supremecourtus.gov/docket/02-479.htm]
for the majority in Garrett contrasted the ADA’s legislative history on employment
discrimination with that on state conduct that violates title II, noting that the evidence
regarding employment was sparse compared with the evidence of state conduct.
Although the Supreme Court will not address this issue in the 2002-2003 term, the
Court may be presented with similar cases in the future.
Other Supreme Court Employment Cases
Many of the 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. 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
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.”
In Chevron U.S.A. Inc., v. Echazabal,82 the Supreme Court held unanimously
that the ADA does not require an employer to hire an individual with a disability if
the job in question would endanger the individual’s health. The ADA’s statutory
language provides for a defense to an allegation of discrimination that a qualification
standard is “job related and consistent with business necessity.”83 The act also allows
an employer to impose as a qualification standard that the individual shall not pose
a direct threat to the health or safety of other individuals in the workplace84 but does
not discuss a threat to the individual’s health or safety. The ninth circuit in
Echazabal had determined that an employer violated the ADA by refusing to hire an
applicant with a serious liver condition whose illness would be aggravated through
exposure to the chemicals in the workplace.85 The Supreme Court rejected the ninth
circuit decision and upheld a regulation by the EEOC that allows an employer to
assert a direct threat defense to an allegation of employment discrimination where the
threat is posed only to the health or safety of the individual making the allegation.86
Justice Souter found that the EEOC regulations were not the kind of workplace
paternalism that the ADA seeks to outlaw. “The EEOC was certainly acting within
the reasonable zone when it saw a difference between rejecting workplace
paternalism and ignoring specific and documented risks to the employee himself,
even if the employee would take his chances for the sake of getting a job.” The Court
emphasized that a direct threat defense must be based on medical judgment that uses
the most current medical knowledge.
The Supreme Court had examined an analogous issue in UAW v. Johnson
Controls, Inc.,87 which held that under the Civil Rights Act of 1964 employers could
not enforce “fetal protection” policies that kept women, whether pregnant or with the
potential to become pregnant, from jobs that might endanger a developing fetus.
Although this case was raised by the plaintiff, the Supreme Court distinguished the
decision there from that in Echazabal. The Johnson Controls decision was described
as “concerned with paternalistic judgments based on the broad category of gender,
while the EEOC has required that judgments based on the direct threat provision be
made on the basis of individualized risk assessments.”
Echazabal has been hailed by employers as “a major victory for the business
community.”88 However, Andrew Imparato, the President of the American
Association of People with Disabilities, stated that “The United States Supreme
Court today once again demonstrated its fundamental hostility to disability rights in
536 U.S. 73 (2002).
42 U.S.C. §12113(a).
42 U.S.C. §12113(b).
226 F.3d 1063 (9th Cir. 2000).
29 C.F.R. §1630.15(b)(2).
499 U.S. 187 (1991).
Linda Greenhouse, “Employers, in 9-0 Ruling by Justices, Extend Winning Streak in
Disabilities Act Cases,” NYT A-16 (June 11, 2002).
the workplace....Today’s decision invites paternalism and represents a major step
backward for the more than 35 million working age Americans with disabilities.”89
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
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.90
Reasonable Accommodations and Seniority Systems. The Supreme
Court in U.S. Airways v. Barnett91 held that an employer’s showing that a requested
accommodation by an employee with a disability conflicts with the rules of a
seniority system is ordinarily sufficient to establish that the requested accommodation
is not “reasonable” within the meaning of the ADA. The Court, in a majority opinion
by Justice Breyer, observed that a seniority system, “provides important employee
benefits by creating, and fulfilling, employee expectations of fair, uniform treatment”
and that to require a “typical employer to show more than the existence of a seniority
system might undermine the employees’ expectations of consistent, uniform
treatment.” Thus, in most ADA cases, the existence of a seniority system would
entitle an employer to summary judgment in its favor. The Court found no language
in the ADA which would change this presumption if the seniority system was
imposed by management and not by collective bargaining. However, Justice Breyer
found that there were some exceptions to this rule for “special circumstances” and
gave as examples situations where (1) the employer “fairly frequently” changes the
seniority system unilaterally, and thereby diminishes employee expectations to the
point where one more departure would “not likely make a difference” or (2) the
seniority system contains so many exceptions that one more exception is unlikely to
Although the majority in Barnett garnered five votes, the Court’s views were
splintered. There were strong dissents and two concurring opinions. In her
concurrence, Justice O’Connor stated that she would prefer to say that the effect of
a seniority system on the ADA depends on whether the seniority system is legally
enforceable but that since the result would be the same in most cases as under the
majority’s reasoning, she joined with the majority to prevent a stalemate. The
dissents took vigorous exception to the majority’s decision with Justice Scalia, joined
by Justice Thomas, arguing that the ADA does not permit any seniority system to be
“Supreme Court Hostile to Disability Rights in the Workplace”
For more information, see CRS Report RL30008, Labor and Mandatory Arbitration
Agreements: Background Discussion.
535 U.S. 391 (2002).
overridden. The dissent by Justice Souter, joined by Justice Ginsberg, argued that
nothing in the ADA insulated seniority rules from a reasonable accommodation
requirement and that the legislative history of the ADA clearly indicated
congressional intent that seniority systems be a factor in reasonable accommodations
determinations but not the major factor.
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.92 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.93 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.94 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
The events of September 11, 2001 raised questions concerning whether an
employer may ask employees whether they will require assistance in the event of an
evacuation because of a disability or medical condition. The EEOC issued a fact
sheet stating that employers are allowed to ask employees to self-identify if they will
require assistance because of a disability or medical conditions and providing details
on how the employer may identify individuals who may require assistance.95
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,96 and (3) that religious
42 U.S.C. §12112.
EEOC, “ADA Enforcement Guidance: Preemployment Disability-Related Questions and
Medical Examinations,” Oct. 10, 1995.
[http://www.eeoc.gov/facts/evacuation.html]. For a detailed discussion of emergency
procedures for employees with disabilities see Federal Emergency Management Agency,
“Emergency Procedures for Employees with Disabilities in Office Occupancies.”
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
entities may give a preference in employment to individuals of a particular religion
to perform work connected with carrying on the entities’ activities.97 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,98 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.99
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.100 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.101
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.”102 Title I also
provides that a covered entity may prohibit the illegal use of drugs and the use of
alcohol in the workplace.103
Similarly, employers may hold all employees,
regardless of whether or not they have a disability, to the same performance and
conduct standards.104 However, if the misconduct results from a disability, the
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).
42 U.S.C. § 12113.
62 F.R. 49518 (Sept. 22, 1997).
29 C.F.R. Appendix §1630.3.
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.”)
29 C.F.R. Appendix §1630.3.
42 U.S.C. §12114(c); 29 C.F.R. §1630.16(b)(4).
EEOC Compliance Manual §902.2(c)(4). See also Hamilton v. Southwestern Bell
employer must be able to demonstrate that the rule is job-related and consistent with
The remedies and procedures set forth in sections 705, 706, 707, 709, and 710
of the Civil Rights Act of 1964,106 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
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.107 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.108 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 employment cases as well.109
In Equal Employment Opportunity Commission v. Wal-mart Stores, Inc.,110 the
tenth circuit applied Kolstad and affirmed an award of punitive damages under the
Telephone Co., 136 F.3d 1047 (5th Cir. 1998)(“the ADA does not insulate emotional or
violent outbursts blamed on an impairment”).
EEOC Enforcement Guidance on the ADA and Psychiatric Disabilities, No. 915.002,
p. 29 (March 25, 1997).
42 U.S.C. §§2000e-4, 2000e-5, 2000e-6, 2000e-8, 2000e-9.
In Gagliardo v. Connaught Laboratories, 311 F.3d 565 (3d Cir. 2002), an employee
who claimed that she was discriminated against due to her multiple sclerosis won an award
of $2.3 million despite the ADA caps. The court found that the judge had properly
proportioned the claims between the federal and state causes of action and found that the
fact that the state law did not contain a cap indicated that it was intended to provide a
remedy beyond the federal remedies.
527 U.S. 526 (1999).
But see Barnes v. Gorman, 536 U.S. 181 (2002), where the Supreme Court held that
punitive damages may not be awarded under section 202 of the ADA.
187 F.3d 1241 (10th Cir. 1999).
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,111 the plaintiff claimed that her workplace environment and her performance
reviews changed dramatically when her supervisor became aware of the plaintiff’s
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 Corporation112 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.”
247 F.3d 229 (5th Cir. 2001).
247 F.3d 169 (4th Cir. 2001).
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.113
“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 1973.114
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.115 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.116
Supreme Court Cases
Although title II has not been the subject of as much litigation as title I, several
of the ADA cases to reach the Supreme Court have involved title II.
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
42 U.S.C. §§12131-12133.
29 U.S.C. §794.
28 C.F.R. §35.150.
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.117
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.118 “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.119
Other Title II Cases
In Bartlett v. New York State Board of Law Examiners,120 the second circuit
court of appeals held that an individual’s dyslexia is a learning disability and that the
New York state bar examiners were required under the ADA to make reasonable
accommodations in administering the bar exam.
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).
Olmstead has focused federal and state attention on the development of policies that
would expand home and community-based care for individuals with disabilities. For a
discussion of these policy issues and legislation see CRS Report RS20992, Long Term Care:
107th Congress Legislation.
For a more detailed discussion of Olmstead see CRS Report RS20588, Olmstead v.
L.C.: Implications and Subsequent Judicial, Administrative, and Legislative Actions.
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.
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.121
Other title II cases have involved whether curb ramps are required,122 the application
of title II to a city ordinance allowing open burning,123 and the application of the
ADA to a city’s zoning ordinances.124
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.125 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.126 Rail systems must have at least one car per train that is accessible to
individuals with disabilities.127
Draft guidelines have been published by the Architectural and Transportation
Barriers Compliance Board (Access Board) regarding the accessibility of public
rights-of-way.128 By the end of the comment period, the Access Board received over
1,400 comments. These comments were reviewed and the key issues raised by
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.”
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. See also Barden v. Sacramento,292 F.3d 1073 (9th Cir. 2002), petition for certiorari
filed Nov. 25, 2002, No. 02-815. It should also be noted that New York City has begun
implementation of a settlement agreement which specifies the installation of curb ramps.
See “New York Agree to Spend $218 Million to Build Curb Ramps,” 11 BNA’s Americans
with Disabilities Act Manual 91 (Dec. 19, 2002).
Heather K. v. City of Mallard, Iowa, 946 F.Supp. 1373 (N.D.Iowa 1996).
Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37 (2d Cir. 1997).
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).
42 U.S.C. §12143.
42 U.S.C. §12162.
“Draft Guidelines for Accessible Public Rights-of-Way,”
[http://www.access-board.gov/rowdraft.htm] (June 17, 2002).
commentators were identified and are currently being discussed. When this is
complete, the Access Board will release a revised set of guidelines and provide
another opportunity for public comment.129
The enforcement remedies of section 505 of the Rehabilitation Act of 1973, 29
U.S.C. §794a, are incorporated by reference.130 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,131
and the Secretary of Transportation has issued regulations regarding transportation.132
Barnes v. Gorman. The Supreme Court in Barnes v. Gorman133 held in a
unanimous decision that punitive damages may not be awarded under section 202134
of the ADA and section 504 of the Rehabilitation Act of 1973.135 Jeffrey Gorman
uses a wheelchair and lacks voluntary control over his lower torso which necessitates
the use of a catheter attached to a urine bag. He was arrested in 1992 after fighting
with a bouncer at a nightclub and during his transport to the police station suffered
significant injuries due to the manner in which he was transported. He sued the
Kansas City police and was awarded over $1 million in compensatory damages and
$1.2 million in punitive damages. The eighth circuit court of appeals upheld the
award of punitive damages but the Supreme Court reversed. Although the Court was
unanimous in the result, there were two concurring opinions and the concurring
opinion by Justice Stevens, joined by Justices Ginsburg and Breyer, disagreed with
the reasoning used in Justice Scalia’s opinion for the Court.
Justice Scalia observed that the remedies for violations of both section 202 of
the ADA and section 504 of the Rehabilitation Act are “coextensive with the
remedies available in a private cause of action brought under title VI of the Civil
Rights Act of 1964.”136 Neither section 504 nor title II of the ADA specifically
mention punitive damages, rather they reference the remedies of title VI of the Civil
Rights Act. Title VI is based on the congressional power under the Spending
42 U.S.C. §12133.
28 C.F.R. Part 35.
49 C.F.R. Parts 27, 37, 38.
536 U.S. 181 (2002).
42 U.S.C. §12132. Section 203, 42 U.S.C. §12133, contains the enforcement
29 U.S.C. §794. Section 504 in relevant part prohibits discrimination against individuals
with disabilities in any program or activity that receives federal financial assistance. The
requirements of section 504, its regulations, and judicial decisions were the model for the
statutory language in the ADA where the nondiscrimination provisions are not limited to
entities that receive federal financial assistance,
42 U.S.C. §2000d et seq.
Clause137 to place conditions on grants. Justice Scalia noted that Spending Clause
legislation is “much in the nature of a contract” and, in order to be a legitimate use
of this power, the recipient must voluntarily and knowingly accept the terms of the
“contract.” “If Congress intends to impose a condition on the grant of federal
moneys, it must do so unambiguously.”138 This contract law analogy was also found
to be applicable to determining the scope of the damages remedies and, since
punitive damages are generally not found to be available for a breach of contract,
Justice Scalia found that they were not available under title VI, section 504 or the
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.139 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.140 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.”141 “Readily achievable” is defined as meaning “easily accomplishable
and able to be carried out without much difficulty or expense.”142 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.143 An undue burden is defined as an action
involving “significant difficulty or expense.”144
U.S. Const., Art. I §8, cl.1.
Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17 (1981).
42 U.S.C. §12182.
42 U.S.C. §12181.
42 U.S.C. §12182(b)(2)(A)(iv).
42 U.S.C. §12181.
42 U.S.C. §12182(b)(2)(A).
28 C.F.R. §36.104.
Title III contains a specific exemption for religious entities.145 This applies
when an entity is controlled by a religious entity. For example, a preschool that is
run by 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.
Similarly, title III does not apply to private clubs or establishments exempted
from coverage under title II of the Civil Rights Act of 1964.146 In interpreting this
provision,147 the Department of Justice has noted that courts have been most inclined
to find private club status in cases where (1) members exercise a high degree of
control over club operations, (2) the membership selection process is highly selective,
(3) substantial membership fees are charged, (4) the entity is operated on a nonprofit
basis, and (5) the club was not founded specifically to avoid compliance with federal
civil rights law. Facilities of a private club lose their exemption, however, to the
extent that they are made available for use by nonmembers as places of public
Title III also contains provisions relating to the prohibition of discrimination in
public transportation services provided by private entities. Purchases of over-theroad buses are to be made in accordance with regulations issued by the Secretary of
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
42 U.S.C. §12187.
42 U.S.C. §2000a-3(a).
42 U.S.C. 12187.
Department of Justice, “ADA Title III Technical Assistance Manual” III-1.6000.
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.
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.150
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,151 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.152 The ninth
circuit had ruled that the use of the cart was permissible since it did not
“fundamentally alter” the nature of the competition.153
Title III of the ADA defines the term “public accommodation,” specifically
listing golf courses.154 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.”155
Abbott v. Bragdon, 163 F.3d 87 (1st Cir. 1998), cert. den., 526 U.S. 1131(1999).
167 F.3d 873 (4th Cir. 1999), cert. denied, 528 U.S. 813 (1999).
532 U.S. 661 (2001).
204 F.3d 994 (9th Cir. 2000).
42 U.S.C. §12181(7).
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
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
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
Title III prohibits discrimination 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.156 The statutory language, which was enacted in 1990 prior
to widespread internet use, does not specifically cover internet sites. The question
is then whether the statute can be interpreted to include internet sites. One of the
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
42 U.S.C. §12182.
relevant issues in resolving this novel problem is whether a place of public
accommodation is limited to actual physical structures.
The courts have split on this issue with the first circuit in Carparts Distribution
Center v. Automotive Wholesalers Association of New England Inc. finding that
public accommodations are not limited to actual physical structures. The court
reasoned 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.”157
The seventh circuit in Doe v. Mutual of Omaha Insurance Company158 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.”159 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.”160 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....”161
The second circuit joined the first and seventh circuits in finding that the ADA
is not limited to physical access. The court in Pallozzi v. Allstate Life Insurance
Co.,162 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
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.,163 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
Carparts Distribution Center, Inc. v. Automotive Wholesalers’ Association of New
England, Inc., 37 F.3d 12 (1st Cir. 1994).
179 F.3d 557 (7th Cir. 1999), cert. denied, 528 U.S. 1106 (2000).
Id. at 559 (emphasis added.)
Id. at 563.
198 F.3d 28 (2d Cir. 1999).
59 F.3d 580 (6th Cir. 1995), cert. denied, 516 U.S. 1028 (1995).
allegation holding that the prohibitions of title III are restricted to places of public
accommodations. Similarly, in Parker v. Metropolitan Life Insurance Co.164 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.”165
Recently the precise issue of the ADA’s application to the internet arose in
Access Now, Inc., v. Southwest Airlines, Co.,166 where the court held that Southwest
Airlines website was not a “place of public accommodation” and therefore was not
covered by the ADA. The district court examined the ADA’s statutory language,
noting that all of the listed categories were concrete places, and that to expand the
ADA to cover “virtual” spaces would be to create new rights.
Previously, 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.167 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.”168 The case was settled on July 26, 2000.169
121 F.3d 1006 (6th Cir. 1997), cert. denied, 522 U.S. 1084 (1998).
Id. At 1010. See also, Lenox v. Healthwise of Kentucky, 149 F.3d 453 (6th Cir. 1999).
227 F.Supp.2d 1312 (S.D. Fla. 2002).
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.
National Federation of the Blind v. America
[http://www.nfb.org/bm/bm99/brlm9912.htm] (Nov. 2, 1999).
The settlement agreement can be found at the National Federation of the Blind website,
The question of ADA coverage of internet sites will undoubtedly continue to be
a closely watched issue.170 Access Now, the group that filed suit against
Southwestern, currently has a similar suit against American Airlines pending. It
should be noted that this issue does not effect the requirement that federal
government websites be accessible since the federal requirement is contained in a
separate statute, section 508 of the Rehabilitation Act.171
Other Judicial Decisions
In Ford v. Schering-Plough Corporation,172 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.”173 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.
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.174
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
For a more detailed discussion of the issue see Adam M. Schloss, “Web-Sight for
Visually-Disabled People: Does Title III of the Americans with Disabilities Act Apply to
Internet Websites?” 35 Columbia J. of Law and Social Problems 35 (2001); Matthew A.
Stowe, “Interpreting Place of Public Accommodation Under Title III of the ADA: A
Technical Determination with Potentially Broad Civil Rights Implications,” 50 Duke L.J.
297 (2000); Jonathan Bick, “Americans with Disabilities Act and the Internet,” 10 Alb. L.J.
Sci. & Tech. 205 (2000).
29 U.S.C. §794(d), as amended by P.L. 105-220. Section 508 requires that the
electronic and information technology used by federal agencies be accessible to individuals
with disabilities, including employees and member of the public. Generally, section 508
requires each federal department or agency and the U.S. Postal Service to ensure that
individuals with disabilities who are federal employees have access to and use of electronic
and information technology that is comparable to that of individuals who do not have
145 F.3d 601(3d Cir. 1998), cert. denied, 525 U.S. 1093 (1999).
Id. At 612.
58 F.3d 1063 (5th Cir. 1995), cert. den., 516 U.S. 1045 (1996).
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 Justice175 and regulations relating to the
transportation provisions of title III have been promulgated by the Department of
Title IV of the ADA amends title II of the Communications Act of 1934177 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.178
Section 505 of the ADA provides for attorneys’ fees in “any action or
administrative proceeding” under the Act. This section was the subject of a Supreme
Court decision in Buckhannon Board and Care Home, Inc., v. West Virginia
Department of Human Resources.179 In Buckhannon, the Supreme Court addressed
the “catalyst theory” of attorneys’ fees which posits that a plaintiff is a prevailing
party if the lawsuit brings about a voluntary change in the defendant’s conduct. The
Court rejected this theory finding that attorneys’ fees are only available where there
is a judicially sanctioned change in the legal relationship of the parties.
Statutes providing for the award of attorneys’ fees allow courts to make the
awards to the “prevailing party.” The question presented in Buckhannon was
whether the term “prevailing party” includes a party who did not secure a judgment
on the merits or a court-ordered consent decree, but has nonetheless achieved the
28 C.F.R. Part 36.
49 C.F.R. Parts 27, 37, 38.
47 U.S.C. §§201 et seq.
47 U.S.C. §255.
532 U.S. 598 (2001).
desired result because the lawsuit has brought about a voluntary change in the
defendant’s conduct. The Court, in an opinion by Chief Justice Rehnquist,
examined the ADA and the Fair Housing Amendments Act (FHAA)180 and held that
the term “prevailing party” cannot be interpreted in this manner, thus rejecting the
concept of a “catalyst theory.” Four other members of the Court, Justices O’Connor,
Scalia, Kennedy, and Thomas joined with the Chief Justice while Justices Ginsburg,
Stevens, Souter and Breyer dissented.
The Court first noted that in the United States parties are ordinarily required to
bear their own attorneys’ fees but that Congress has authorized the award of
attorneys’ fees in numerous statutes in addition to the ones at issue in Buckhannon.
These fee-shifting provisions have been interpreted in the same manner and the Court
noted, citing to Hensley v. Eckerhart,181 that it approached the attorneys’ fees
provisions of the ADA and the FHAA in this manner.
Examining prior Supreme Court cases, Chief Justice Rehnquist found that a
party receiving a judgment on the merits would clearly have a basis on which
attorneys’ fees might be awarded. Similarly, the court found that settlement
agreements enforced through a consent decree may serve as the basis for an award
of attorneys’ fees. The catalyst theory was seen as dissimilar from these examples
since “it allows an award where there is no judicially sanctioned change in the legal
relationship of the parties.”182 A voluntary change, even if it accomplished what the
plaintiff sought, the Court found, “lacks the necessary judicial imprimatur on the
Other Title V Provisions
Title V contains an amalgam of provisions in addition to the provision on
attorneys’ fees discussed above 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.184
42 U.S.C. §3613(c)(2).
461 U.S. 424 (1983).
532 U.S. 598, 605 (2001).
29 U.S.C. §§790 et seq.
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.”185 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
transplant.186 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.”187
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 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....”188 Section 514 provides for severability of any
provision of the Act that is found to be unconstitutional.
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
70 F.3d 958 (8th Cir. 1995).
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
42 U.S.C. §12212.
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
Legislation Relating to the ADA
Although the ADA has not been the subject of major amendments since its
enactment in 1990 several bills have been introduced. Among the most discussed
are the bills which would require notification of an alleged violation of the ADA.190
H.R. 728, the ADA Notification Act was introduced in the House on February
12, 2003 with essentially the same language as bills introduced in previous
Congresses. H.R. 728 would add provisions to the remedies and procedures of title
III of the ADA to require a plaintiff to provide notice of an alleged violation to the
defendant. This notice may be provided by registered mail or in person and shall
contain the specific facts regarding the alleged violation including the identification
of the location at which the violation occurred, and the date on which the violation
occurred. The notice also shall inform the defendant that civil action may not be
commenced until the expiration of a ninety day period. A court does not have
jurisdiction unless this notice is provided, at least ninety days have passed, and the
complaint states that the defendant has not corrected the alleged violation. If these
requirements are not met when a civil action is filed, the court shall impose an
appropriate sanction on the attorneys involved. If the criteria are subsequently met
and the action proceeds, the court may not award attorneys’ fees.
H.R. 728 was referred to the House Judiciary Committee and to the
Subcommittee on the Constitution. Although no actions have been taken by this
committee and subcommittee, the House Subcommittee on Rural Enterprises,
Agriculture, and Technology of the House Small Business Committee held hearings
on the bill on April 8, 2003.
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).
For a more detailed discussion of this legislation see CRS Report RS21187, Legislation
in the 107th Congress Requiring Notification Prior to Certain Legal Actions Under the
Americans with Disabilities Act.
The two ADA Notification Acts in the 107th Congress, H.R. 914191 and S. 792,192
like their predecessors H.R. 3590193 and S. 3122,194 106th Cong. contained similar
language.195 There was no committee action on the ADA notification legislation in
the 107th Congress. Hearings were held by the Subcommittee on the Constitution of
the House Committee on the Judiciary on H.R. 3590 on May 18, 2000.196
Other bills were also introduced in the 107th Congress to amend the ADA. In
the House these included H.R. 820 which would have amended various civil rights
acts including the ADA to require the EEOC to mediate employee claims arising
under the acts; H.R. 915, which would have amended the Internal Revenue Code to
provide a tax credit for modifications of intercity buses; H.R. 1489, which would
have amended certain civil rights laws including the ADA to prevent the involuntary
application of arbitration to claims that arise from unlawful employment
discrimination. In the Senate the following bills were introduced to amend the ADA:
S. 33, which would have exclude prisoners from the coverage of title II; S. 163
which would have amended certain civil rights laws including the ADA to prevent
the involuntary application of arbitration to claims that arise from unlawful
employment discrimination; and S. 1192 which would have amended the Internal
Revenue Code to provide a tax credit for modifications of intercity buses.
H.R. 914 was introduced by Rep. Foley.
S. 792 was introduced by Senator Inouye.
H.R. 3590 was introduced by Rep. Foley.
S. 3122 was introduced by Senator Hutchinson.
H.R. 914, 107th Cong., H.R. 3590, 106th Cong., and S. 3122, 106th Cong. are identical.
S. 792 contains some minor differences.
Hearing on H.R. 3590, the ADA Notification Act, Before the House Committee on the
J u d i c i a r y , S u b c o mmi t t e e o n t h e C o n s t i t u t i o n , M a y 1 8 , 2 0 0 0 .