This week when I was looking for a case to blog about I came across the case of Torres v. Junto De Gobierno De Servicio De Emergencia, where on April 28, 2015 United States District Court for the District of Puerto Rico denied a motion to reconsider. In the original opinion and order, they held that a claim of employment discrimination filed under title II could survive a motion to dismiss. After reading that case, that caused me to review the issue myself. There are two views on this. The minority view is from the 11th circuit in the case of Bledsoe v. Palm Beach County Soil and Water Conservation District, 133 F.3d 816 (11th Cir. 1998), where they held that title II of the ADA does apply to employment. The majority view is represented by Brumfield v. City of Chicago, 735 F.3d 619 (7th Cir. 2013), and the cases collected therein, where they held that title II of the ADA most certainly does not apply to employment.
Reasons Why It Matters If Title II Applies to Employment?
1. With respect to title II cases, administrative remedies do not need to be exhausted before filing a claim. That said, I am of the view that it is always a good idea to exhaust internal remedies first. Also, if on the plaintiff side, I am also of the view that in addition to internal remedies, it is also a good idea to go through the Department of Justice first prior to filing suit because it they get involved, that involvement changes the dynamics of the case and also gives the plaintiff free discovery.
2. Since title II is tied into the Rehabilitation Act and Title I is tied into the civil rights of 1964, damages that can be obtained may be different and the standard for getting those damages may also be different. For example, to get any damages under title II, the general rule would be that you would have to show deliberate indifference, which is not the standard for non-punitive damages under title I.
Minority View: Title II Applies to Employment (Bledsoe v. Palm Beach County Soil and Water Conservation District)
1. Legislative history clearly shows that title II of the ADA was meant to apply to employment matters.
2. § 504 is so focused on employment discrimination that it led Congress to enact subsequent legislation clarifying that § 504 applies to other forms of discrimination in addition to employment discrimination.
3. Title II prohibits all discrimination by a public entity regardless of context.
4. DOJ regulation 28 C.F.R. § 35.140 says that title II applies to employment and the regulations are neither arbitrary, capricious, nor manifestly contrary to the statute. Therefore, they are entitled to Chevron deference.
5. Prior decisions in the 11th Circuit and in districts making up the 11th Circuit suggested that title II of the ADA applies to employment.
Buy I4 (Does 28 C.F.R. § 35.140 Really Say That Title II Applies to Employment?)
One of the things not addressed by the case law is what does 28 C.F.R. § 35.140 really mean? The case law either says that this regulation is entitled to deference per Chevron or that the law is crystal clear that title I governs employment matters with respect to governmental entities and so the regulation never comes into play. I believe an argument can be made that the regulation itself supports the proposition that title II does not apply to employment. The analysis would work something like this:
1. It is true that 28 C.F.R. § 35.140(a) says that a public entity cannot discriminate on the basis of disability in employment.
The use of the terms “on the basis,” is also interesting because title II of the ADA does not use that term. Rather, it uses the term, “by reason of.” The difference may very well lead to different causation standards as discussed in this blog entry. If there is a different causation standard between the two terms (in addition to the just mentioned blog entry, see also this blog entry), an argument can be created that the Department of Justice went too far by using the term “on the basis,” in this regulation when title II of the ADA refers to, “by reason of.”
2. However, §35.140(b)(1) says that where a public entity is also subject to the jurisdiction of title I, then the requirements of title I of the ADA apply. This regulation as phrased could be read to say that title I of the ADA applies to public sector non-federal employment and not title II. The argument would be that the reference to also being subject to title II just means that nonfederal public entities have independent obligations under title II that they are subject to in addition to being subject to title I of the ADA.
3. §35.140(b)(2) says that if a public entity has less than 15 employees, then § 504 of the Rehabilitation Act is the applicable law that applies to employment matters arising from public sector non-federal employment.
A. § 35.140(b)(2) seems to be operating on the assumption that a non-federal public entity is automatically going to take federal funds. That may not be the case. Therefore, I am having trouble understanding how the Rehabilitation Act regulations could apply if the Rehabilitation Act Itself doesn’t apply. Thus, this would create an argument, to my mind, that this particular regulation goes beyond the statutory authority of the ADA and the Rehabilitation Act with respect to non-federal public sector employers of less than 15 people where that public-sector employer does not take federal funds. If the public-sector employer does take federal funds, which most probably do, then this provision seems to be saying that employment matters of non-federal public sector employers not subject to title II of the ADA are exclusively governed by § 504 of the Rehabilitation Act.
Majority View (2nd if 15 or more employees; 3, 6, 7, 9, and 10 Circuits)
The 11th Circuit is out there by itself, though the 1st Circuit, as mentioned in Torres, in prior case law seems to suggest it might go with the 11th.
1. It is absolutely true that title II of the ADA prohibits discrimination by public entities by reason of disability with respect to their services, programs or activities. However, both title I of the ADA and title II of the ADA are set up in such a way so that in addition to having a disability, you also have to be qualified. What it means to be qualified is different between title I of the ADA and title II of the ADA. Further, what it means to be qualified under title II of the ADA contains absolutely no hint that employment is involved. Instead, it talks about essential eligibility requirements and the receipt of services or the participation in programs or activities.
2. DOJ regulations are not entitled to deference because the title II of the ADA unambiguously does not apply to decisions of state and local governments in employment matters.
3. Employment cannot simply be described fairly as a service, program, or activity of a public entity nor is it ordinarily conceptualized as such.
4. If title II applies to employment, then the statute becomes redundant in the broader statutory scheme.
5. Title I of the ADA definition of what it means to be qualified specifically focuses on employment matters (i.e. perform the essential functions of the job with or without reasonable accommodations).
6. With respect to title I, the terms “reasonable accommodation” and “undue hardship,” both contain references to employment matters.
7. Title I of the ADA has its own comprehensive regulatory scheme.
For that matter, title II of the ADA has its own comprehensive regulatory scheme as well. With the exception of 28 C.F.R. § 35.140, you never see employment discussed in the title II regulations.
8. The 11th Circuit never considered the definition of qualified under title II of the ADA in its opinion.
9. With respect to the closely related issue of whether title III applies to employment, both the Third Circuit and the Sixth Circuit have said no and that title I is the exclusive arena for disability discrimination employment matters.
Brumfield does an excellent job of discussing the cases on both sides of the issue and the reader is referred to that opinion if desiring further analysis.
1. Bledsoe was the first Circuit Court decision to address the question of whether title II applies to employment. As such, it was on its own. One wonders if the question came before the 11th Circuit today whether the same decision would be reached.
2. The arguments laid out in Brumfield are compelling, and § III and § IV(7) of this blog entry make those arguments even more compelling (I mean I know those arguments are mine:-), but I do believe that those arguments buttress the Brumfield line of cases).
3. All of the cases since Bledsoe that have visited the question specifically of whether a different title of the ADA also applies to employment have held in the negative.
4. There is a Circuit Court split on this. Therefore, I would certainly expect an appeal to the First Circuit in Torres. It is true that the First Circuit has previously suggested that title II may encompass employment matters, but that was back in 2002, and also they did not specifically address that question. Therefore, it is uncertain as to what the First Circuit will do on appeal. Also, even assuming the First Circuit decides in favor of title II applying to employment, the Brumfield reasoning is so strong that to my mind it would likely prevail at the Supreme Court (since there is a Circuit split, there is a good chance that the Supreme Court would take the case).
5. So, unless you are in the 11th Circuit or are in the Second Circuit and dealing with a Title II entity with less than 15 employees that does not take federal funds, it is probably safe to say that title II of the ADA does not apply to employment matters. It would be interesting to see what would happen in the 11th Circuit if they were somehow asked to revisit the issue.
6. Preventive law dictates that the practitioner act as if title II does not apply to employment (the arguments are just too strong). Further, it would seem highly likely (though predicting the Supreme Court is always hazardous business), that the Supreme Court will eventually make the same decision.