Does Association discrimination apply to title II of the ADA?

This blog entry explores whether an association discrimination claim applies to title II of the ADA, the Rehabilitation Act, and, for that matter, the California Disabled Persons Act. As is my practice, the blog is divided into the facts, the issue, the court’s reasoning, and takeaways. Feel free to zero in on any and/or all of the sections of the entry.

I
The Facts

Consider: Plaintiff’s granddaughter suffers from significant disabilities including chromosomal disorder, lack of motor skills, visual and hearing impairments, and epilepsy. She uses a wheelchair for mobility. Her grandfather decided to take her to watch his grandson play football at a sports complex owned by the City of Porterville, California. They experienced difficulty reaching the playing field because the only way to get from the parking facility to the playing field was by traversing over grass that was too high for the grandfather to push his granddaughter in a wheelchair safely. Accordingly, the grandfather carried his granddaughter across the grassy area while his wife pushed their granddaughter’s wheelchair. He carried his granddaughter from the parking facility all the way to the football field and to the playground thereby causing him physical difficulty and frustration. He then filed a lawsuit against the City of Porterville alleging that he was denied full and equal access (in violation of title II of the ADA, the Rehabilitation Act, and the California Disabled Persons Act), to the programs, services and activities offered by the City because of his association with a person with a disability, i.e. his granddaughter. The City brought a motion to dismiss for failure to state a claim.

These are the facts in Cortez v. City of Porterville_F. Supp. 2d_, 2014 WL 1101228 (E.D. Cal.).

II
The Issues

1. Does a person have the right to file a lawsuit alleging discrimination in violation of title II of the ADA on his or her own behalf on account of his or her associating with a person with a disability?

2. Does a person have the right to file a lawsuit alleging discrimination in violation of the Rehabilitation Act on his or her own behalf on account of his or her associating with a person with a disability?

3. Does a person have the right to file a lawsuit alleging discrimination in violation of the California Disabled Persons Act on his or her own behalf on account of his or her associating with a person with a disability?

III
Court’s Reasoning

1. With respect to title II of the ADA, title II provides a remedy to any (emphasis added), person alleging discrimination on the basis of disability in violation of the provisions of title II of the ADA. The use of the phrase, “any person” in the absence of any language limiting standing to persons with disability indicates, to the court’s mind, that Congress intended to interpret standing under title II as broadly as permitted by article 3 of the Constitution. Finally, the implementing regulations for title II of the ADA, 28 C.F.R. § 35.130(g), specifically state that a public entity cannot exclude or otherwise deny equal services, program, activity to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association with. Therefore, association claims are clearly permitted under title II of the ADA.

2. The plaintiff had standing to pursue the claim for several different reasons. First, he was forced to carry his wheelchair-bound granddaughter across a grassy area in order to access the playing fields and playgrounds. Second, he desired to continue to visit the sports complex with his granddaughter, but the City’s failure to make the place accessible causes him to experience difficulty, feel anxious, frustrated and certainly conspicuous (not surprising, since he has to carry his granddaughter across the field). Third, the plaintiff’s injury is traceable to the City’s failure to provide accessible pedestrian pathways from the parking facility to the playing fields and playgrounds. Finally, the plaintiff’s inability to have full and equal access to the sports complex is something that can be addressed by the court.

3. The plaintiff’s desire to access and enjoy the sports complex with his disabled granddaughter being foreclosed by the complex’s inaccessibility means that the plaintiff has had alleged an injury that is separate and apart from that of his granddaughter.

4. With respect to the Rehabilitation Act claim, the Rehabilitation Act also contains the “any person,” language in its remedies clause and therefore, just as under title II of the ADA, an association claim is permissible under the Rehabilitation Act. This conclusion really shouldn’t be surprising since the remedies for title II of the ADA are keyed into the Rehabilitation Act.

5. Plaintiff also brought a claim under the Disabled Persons Act of California and the court allowed the associational discrimination claim to proceed under that law as well for the following reasons. First, the Disabled Persons Act provides that individuals with disabilities have the same right as the general public to the full and free use of public buildings, public facilities, and other public places. Second, the Disabled Persons Act provides that if the ADA is violated so is the Disabled Persons Act. Therefore, since the ADA is incorporated into the Disabled Persons Act, associational discrimination claims are also available under the Disabled Persons Act.

IV
Takeaways

1. While associational discrimination does appear in the text of the ADA itself at 42 U.S.C. § 12112(b)(4), that text seems to suggest that it might only apply to employment since all the statutory language around it pertains to employment. The phrase in the statute is, “jobs or benefits.” Also, title III of the ADA does contain a provision prohibiting the exclusion or denial of equal goods, services, facilities, privileges, advantages, or accommodations, or other opportunities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association with. Now we have a precedential decision that for the reasons mentioned above (that reasoning, to my mind, is not far-fetched at all), states quite clearly that title II of the ADA as well as the Rehabilitation Act (for that matter, the Disabled Persons Act of California as well), allow for associational discrimination claims.

2. From the litigation perspective, allowing associational discrimination claims in title II and Rehabilitation Act claims is a bit of a game changer because it opens up more financial resources that can be brought to bear by a plaintiff who either because of his or her own disability or because of his or her association with the person with a disability suffered discrimination. In short, now a governmental entity that discriminates against a person with a disability may have two claims against it with respect to the same set of facts (one from the person with a disability him or herself and the other from the nondisabled person that accompanied the person with a disability).

3. Governmental entities are frequently reactive rather than proactive. That said, a decision like this should give a governmental entity the incentive to review its programs and activities to make sure that they are in compliance with title II of the ADA.

4. In addition to the Rehabilitation Act and the ADA, one always has to be aware that state antidiscrimination laws are lurking out there as well.

Comments

  1. For a title III case discussing the right of a person who associates with a person with a disability to bring their own cause of action alleging a violation of title III, see, George v. AZ Eagle TT Corporation, 961 F. Supp. 2d 971 (D. Ariz. 2013).

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