ADA and the Applicable Statute of Limitations

The whole idea of the statute of limitations is to prevent stale claims. Just about everything has a statute of limitations (the only two exceptions that I can think of our claims arising under USERRA and capital murder claims). The ADA does have statute of limitations to deal with, though it is not stated in the statute itself. Just what is the statute of limitations for an ADA claim? The answer to that question depends upon the title of the ADA involved as well as on an interpretation of a Supreme Court opinion. Let’s look at how each of the titles break down.

Title I
With respect to a claim of employment discrimination (title I), a person needs to file a charge within 180 calendar days from the date the discrimination took place. The 180 calendar day filing deadline is extended to 300 calendar days if a state or local agency enforces a law that prohibits employment discrimination on the same basis. Once a Notice-of-Right-to- Sue from the EEOC is received, a plaintiff must file her lawsuit within 90 days.

Titles II, III, and Retaliation

With respect to the statute of limitation for title II and title III claims as well as retaliation claims, the situation is a bit more complicated. With respect to title II and title III claims, the applicable statute of limitations is going to be the state’s personal injury statute of limitations. See Cordova v. University of Notre Dame Du Lac, _F. Supp. 2d_, 2013 WL 1332268, *3 (N.D. Ind. March 29, 2013). With respect to retaliation claims, the retaliation claim going to be derived from whatever title is at issue. See Stamm v. New York City Transit Authority 2013 WL 244793,*9 (E.D. N.Y. January 22, 2013). Thus, if a person is alleging retaliation with respect to a title II or title III matter, the statute of limitation would be the state’s personal injury statute of limitations.

However, as with the law often times, it is never so simple. Might an argument be made that in some cases as a result of the ADAAA, that the statute of limitations would be a four-year federal statute of limitations rather than the personal injury statute of limitation of the respective state? 28 U.S.C. § 1658 sets forth a catchall four-year statute of limitations for actions arising under federal statutes enacted after December 1, 1990. Obviously, since the ADA was signed by George HW Bush in July 1990, this catchall provision is not going to apply to the ADA. However, the ADAAA went into effect in January, 2009, and thus, arguably might be subject to this catchall provision. How do we know if a particular state’s statute of limitations for personal injury is in play or whether the four-year federal catchall statute of limitations is in play? To answer that question, the United States Supreme Court decision of Jones v. R.R. Donnelly and Sons Co., 541 U.S. 369 (2004), must be considered. In that case, the question was whether the amendment to the Civil Rights Act and a claim subsequently brought under the amendment to the Civil Rights Act was governed by the Illinois personal injury statute of limitations or by the four-year federal catchall statute of limitations. In deciding that the particular claim before it was subject to the federal catchall limitation, the court used a variety of terms as the standard for deciding when the catchall statute of limitations would apply. The terms that the court used include: “creation of new rights of action and corresponding liabilities;” whether “the plaintiff’s claim against the defendant was made possible by a post-1990 enactment;” and “whenever a post-1990 enactment creates a new right.” Id. at 381-382.

Does the ADAAA create any new rights and corresponding liabilities or new claims? One court has suggested that it does not, rather all the ADAAA does is clarify what was originally intended by the ADA. Cordova 2013 WL 1332268, at *5. That said, does that statement hold upon further analysis. After all, the Supreme Court in Jones recognized that the decision in a particular case as to whether new rights, corresponding liabilities or new claims were involved might be very complicated. When you review the ADAAA, it certainly seems that the vast majority of it is really nothing more than clarifying the statute and letting the court know that prior interpretations of the ADA were just not what Congress intended. However, there may be two situations where it might be possible to argue that new rights and corresponding liabilities or new claims were created by the ADAAA. The two areas I believe that may be subject to such an argument are mitigating measures and regarded as. With respect to mitigating measures, the ADA as originally enacted had no such language in it at all. Rather, the whole question of mitigating measures came up to the United States Supreme Court with the Sutton trilogy. The ADAAA makes clear that mitigating measures are not to be considered in the analysis of whether a person has a disability unless the person is dealing with the situation of corrective lenses. 42 U.S.C. § 12102(4)(E)(i),(ii),(iii). This can make a huge difference for a particular individual with a disability. For example, in past editions of my book Understanding the ADA, I have discussed my own hearing loss (I am bilaterally congenitally deaf (65 db-90+db) and through the use of hearing aids and lip reading function entirely in the hearing world)). Before the amendments act, the answer as to whether I had a disability could well have depended upon the time of day (daytime or nighttime depending on whether I was wearing my hearing aids or not). However, I most certainly would have a disability regardless of the time of day with the advent of the ADAAA. Did that create a new right for me? Arguably, yes.

The other area that may have created new claims and corresponding liabilities is in the area of regarded as. Under Sutton, for a regarded as claim to work, an employer has to perceive both a physical or mental impairment AND a substantial limitation on a major life activity. Sutton v. United Airlines 527 U.S. 471, 489 (1999). Now, under the ADAAA, the plaintiff only has to show that a physical or mental impairment was perceived and does not have to worry about whether an employer perceived a substantial limitation on a major life activity. 42 U.S.C. § 12102(3)(A). That change, means that many more people are going to be able to show that they are protected under the regarded as prong, which raises the argument that new rights and corresponding liabilities or claims were created. All this said, you don’t even have to reach this issue if the claim is filed within the statute of limitations for personal injury in your respective state’s jurisdiction. Before leaving this topic, another thing to be aware of, is that utilizing an internal grievance procedure does not toll the statute of limitations. Cordova at 2013 WL 1332268 at *6.

Breaking it down: Here is how the statute of limitations works with respect to the Americans with Disabilities Act. First, if it is a title I case, then you have strict EEOC timelines to deal with. That is, a person has 180 days from the date of the alleged discrimination to file a claim with the EEOC, though it is possible where an equivalent state agency exists, that the deadline might extend to 300 days. With respect to title II and title III claims, you need to check the personal injury statute of limitations in your respective jurisdiction. If for some reason, the claim is outside the personal injury statute of limitations, then you need to focus on whether the case involved mitigating measures or is a, “regarded as” claim. In either of those events, for the reasons mentioned in this entry, it may be possible to argue that the claim would be subject to a four-year federal statute of limitations rather than the particular state’s personal injury statute of limitations.

Comments

  1. In accessibility cases under Titles II and III the limitations period can be irrelevant because under several decisions the discrimination continues as long as the barrier to access exists even if it is years after the plaintiff encountered the barrier. (I wrote about this last December in my blog at accessdefense.com). It leads to the peculiar situation that limitations doesn’t begin to run until the claim is moot because the barrier has been removed.

  2. For those who haven’t checked out Richard’s blog, it is in my blogroll, and I commend it to you for reading. It is quite good. With respect to what Richard says, he is quite right. A continuous violation would keep the statue running. When I wrote the post, in my mind I was thinking about a discrete violation. For example, failure to accommodate an individual at a governmental meeting. Thus, if a governmental entity was not accessible to a person with a disability and subsequent governmental meeting did become accessible, there would still be a cause of action for the meeting that was not accessible. Since only injunctive relief and attorneys fees are allowed under title III of the ADA, I think the situation that Richard talks about is more likely to occur in a title III situation than in Title II. Mootness could either occur because they fixed the problem or because the facility no longer exists. I just read a case today where a title III suit was thrown out because while discrimination occurred, the building had subsequently been demolished.

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