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This blog entry explores whether title II of the ADA applies to employment issues, and how do you go about figuring out what is an essential eligibility requirement of a program.
With the exception of Bledsoe v. Palm Beach Soil and Water Conservation District, 942 F. Supp. 1439 (S.D. Fla. 1996) which was reversed on appeal at 133 F.3d 816 (11th Cir. 1998), most if not all of the cases that have considered the question of whether title II can be used for employment disputes have found that title II cannot be used in that way. Mary Jo C. v. New York State and Local Retirement System,_F.3d_, 2013 WL 322879 (2d Cir. January 29, 2013), is a very recent case that explains why using title II with respect to employment matters is just not finding traction. In holding that title II does not apply to employment matters, the Second Circuit reasoned as follows. First, the structure of the ADA is such that Congress could not have intended to extend title II to employment discrimination claims, at least those covered by Title I. Id. at *19. That is, Title I of the ADA deals with employment discrimination while title II of the ADA deals with the services, programs, or activities of a public entity thereby suggesting that Congress intended to deal with very different subjects in each title. Id.
Second, title I and title II of the ADA have different definitions of what it means to be a qualified individual. Id. at *20. That is, title I focuses on essential functions of the job while title II focuses on essential eligibility requirements for the receipt of services or the participation in programs or activities provided a public entity. Id.
Third, just who is a covered entity differs between title I and title II of the ADA. That is, title I applies to an employer while title II applies to public entities. Id.
Fourth, Congress gave the EEOC the right to implement title I of the ADA, while it gave the Department of Justice the right to implement title II of the ADA. Id.
Fifth, Title I has caps on damages whereas title II does not. Id. Also, title I requires exhaustion of administrative remedies whereas title II does not. Id.
Finally, to allow title II to be used for employment matters, would render title one superfluous in the context of suing public employers employing more than 15 people. Id. at *21.
It is hard for me to believe that Mary Jo C. will not prove to be very persuasive with respect to not allowing title II to be used for employment purposes, at least with respect to matters otherwise governed by title I of the ADA, as the Second Circuit’s reasoning seems quite sound.
That said, the key question is whether a matter would otherwise be governed by title I of the ADA. If the answer is no, a title II claim may still survive. What might be such a title II claim? It turns out that this very same case may have such a claim. Mary Jo C. involved the situation where the plaintiff was a librarian and was terminated because of behavior related to her chronic mental illness, which she had had for years. The plaintiff would have been eligible for disability retirement benefits under New York law had she filed an application with the New York State local in retirement system within three months of her last day of employment. However, she failed to do so because she could not recognize the filing deadline because of her mental illness. During the three month period following her termination, the plaintiff’s brother spoke to a New York State and Local Retirement System official who informed him that the library could file an application on the plaintiff’s behalf. The plaintiff’s brother asked the library to do so but the library denied the request. Then, the plaintiff’s brother asked the library to reclassify the plaintiff’s termination to be an unpaid leave of absence so that the time would be extended for the filing of benefits, but the library refused to do that as well. Once the plaintiff’s condition improved, she applied for disability retirement benefits, but the application was denied because it was not filed within three months of the plaintiff’s last day of work. She then requested that the New York State and Local Retirement System waive the filing deadline as a reasonable accommodation under the ADA, but the New York State and Local Retirement System did not respond. Once the plaintiff’s brother received notice that the plaintiff could appeal the denial of disability retirement benefits application, he did so but such appeal was denied by the hearing officer on the grounds that state law prohibited from waiving the filing deadline for any reason. The plaintiff then brought suit alleging violations of the ADA.
The above facts can be found at Id. at ** 1-3.
In concluding that the District Court erred when it stated in dismissing plaintiff’s claim under title II that it was not a reasonable accommodation to require state defendant to violate state law, the Second Circuit reasoned as follows. First, title II of the ADA demands that a public entity make reasonable modifications in policies, practices, or procedures to avoid discrimination on the basis of disability unless the public entity can demonstrate that making the modification fundamentally alters the nature of the service, program, or activity. Id. at *5.
Second, the court looked at the definition of a qualified individual under title II of the ADA, which is an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, removal of architectural communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities that the public entity provides. Id. at *8. By defining qualified in that way, that means the ADA distinguishes between two sets of requirements; those of which are essential and those which are not. Id.
Third, when you take the fundamental alteration and essential eligibility requirements language together, the conclusion reached is that essential eligibility requirements unlike rules, policies, and practices are not subject to reasonable modification or waiver. Id.
Fourth, since essential eligibility requirements is the phrase that is used, that is a more narrow phrase than eligibility requirements. Id. at *9. Thus, the question becomes how do you determine what is an essential eligibility requirement. The Second Circuit suggests that whether an eligibility requirement is essential is to be determined by consulting the importance of the requirements to the program in question. Id. Also, the court said, drawing upon regulations issued by the Department of Justice, said that essential eligibility requirements would be those that if absent from the program would fundamentally alter the nature the program (while the court did not cite to Easley v. Snider, 36 F.3d 297 (3d Cir. 1994), for this proposition, that case is an excellent one for seeing how an eligibility requirement if absent would fundamentally alter the nature of the program)). Therefore, from this, the Second Circuit concludes that the ADA allows the overruling of minor eligibility requirements, even though set by statute, where those requirements are not necessary to prevent a fundamental alteration of the program’s nature. Mary Jo C. 2013 WL 322879 at *9. In other words, the Second Circuit said, drawing upon PGA Tour v. Martin, that the rules being the rules does not obviate the need to figure out what are the essential eligibility requirements. Id. at *10.
Fifth, the court said that to read essential eligibility requirements as inclusive of all formal legal eligibility requirements would run counter to the ADA’s broad remedial purposes by allowing the State to insist that whatever legal requirements they said another subject to reasonable modifications under title II of the ADA. Id. at *11. Adopting such a view would mean that the class of rules, policies or practices subject to reasonable modification under title II would be extraordinarily small and that nearly all eligibility requirements for the receipt of public services would be essential eligibility requirements. Id.
Sixth, the Second Circuit noted that they New York State and Local Retirement System already waives or extends the filing deadline for disability retirement benefits for certain classes of individuals, such as a person on unpaid medical leave or a person with a qualifying World Trade Center condition, and the fact that the deadline is waived in both of those circumstances strongly suggest that the filing deadline is not essential. Id.
Seventh, since the New York State and local retirement system argued that requiring the states to violate state law was not a reasonable accommodation, the Second Circuit had to visit the question of whether the ADA would, when necessary, would preempt state law. Nothing in the ADA suggests that field preemption, an intent to preempt the field entirely in a certain area, is present, however, conflict preemption is present here. Id. at **12-13. The Second Circuit found nothing in the phrase, “reasonable modification” to suggest that Congress could have intended excluding modifications that would violate or waive mandatory state statutes in some circumstances Id. at *13 (those circumstances being where you have a person with a disability and modifying or waiving the requirement would not fundamentally alter the nature of the program, often referred to as, “otherwise qualified” in the vernacular of ADA). The court goes on to say that Congress clearly meant title II to require the preemption of inconsistent state law when necessary to effectuate the required reasonable modification. Id. at *14. If all state laws were indeed insulated from title II’s reasonable modification requirement solely because they were state laws, then state laws would be an obstacle to the accomplishment and execution of the full purposes and objectives of Congress in enacting title II, which is the very reason conflict preemption exists as a concept in the first place. See id.. In other words, the reasonable modification requirements of title II of the ADA does require the preemption of inconsistent state laws when necessary to effectuate title II’s reasonable modification provision. Id. Therefore, a discriminatory state law is not a defense to liability under federal law, rather, it is a source of liability under federal law. Id.
The meaning of it all: First, it seems quite clear that a plaintiff is not going to be able to use title II of the ADA for the typical employment discrimination claim that would otherwise be filed under title I of the ADA. Second, there may well be some claims arising in the employment context of working for a governmental entity that may have an independent existence under title II of the ADA. Third, the rules are the rules is not going to be a defense. That is, a state statute, rule, or practice may be overridden as being in conflict with the ADA where you have an otherwise qualified individual with a disability (a person with a disability who with or without reasonable modifications meets the essential eligibility requirements of the program or activity), involved. Finally, this decision gives guidance on how to go about determining what an essential eligibility requirement is. That is, an eligibility requirement is essential if it being absent from the program would fundamentally alter the nature of the program. As mentioned above, to better understand what might be an essential eligibility requirements, the reader would do well to look at Easley v. Snider, also mentioned above.