on the basis
Case law dealing with the Rehabilitation Act and the Americans with Disabilities Act will often say say that the Americans with Disabilities Act and the Rehabilitation Act are governed by the same standards. Eg. Greer v. Richardson Independent School District, 2012 WL 833367, *12 fn 1 (fifth Cir. March 14, 2012). That said, are the two laws precisely the same? In important ways they are not. By way of history, the Rehabilitation Act of 1973 applies to the program or activities of any entity that takes federal funds. The Americans with Disabilities Act providing the prerequisites are met (15 or more employees for title I, a governmental entity excluding the federal government for title II, or a place of public accommodation for title III), applies regardless of whether federal funds are taken. With respect to existing facilities of governmental entities, facilities built before 1992, under the Americans with Disabilities Act, each facility does not have to be accessible, only the program does. However, under the Rehabilitation Act, a program or activity means all of the operations of various kinds of entities. Particularly noteworthy with respect to governmental entities, are: A) a department, agency, special purpose district, or other instrumentality of a State or of the local government; B) a college, university, or other postsecondary institution, or a public system of higher education; a local educational agency, or C) system of vocational education, or other school system. See, 29 U.S.C.A. § 794(b)(1)(A),(b)(2) (Westlaw, Current through P.L. 112-129 (excluding P.L. 112-96) approved 6-8-12)).
What does this mean? It means that the plaintiff by using the Rehabilitation Act could focus on the specific operation of the governmental entity receiving federal funds rather than have to worry about a program. However, if the plaintiff takes that approach, then a plaintiff is going to have to show that the disability discrimination was the sole cause rather than an “on the basis,” cause (see mixed motive article and blog entry on mixed motive for more details). If the plaintiff argues the Americans with Disabilities Act, then they will get into a debate as to what the program is but unless it is a retaliation claim (see mixed motive blog entry), may be entitled to to a mixed motive jury instruction. If the plaintiff pleads both the Americans with Disabilities Act and the Rehabilitation Act, it is possible that the plaintiff will have to worry about two different causation standards and also debate, “operations” versus a “program,” even given the same facts.
Tips: If plaintiff pleads only Rehabilitation Act, defense would want to show more than one cause was the reason for discrimination in order to defeat liability. The defense may also want to consider convincing the court that program accessibility rather than just operations apply to rehabilitation act cases as well (See id. for a case where the defense may have done exactly that); if plaintiff pleads only the Americans with Disabilities Act, the defense would need to be prepared for the possibility of a mixed motive jury instruction and in general would want to define the program as narrowly as possible (of course, the plaintiff in general will want to define the program as broadly as possible).