The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues
Prepared for Members and Committees of Congress
The Americans with Disabilities Act (ADA) provides broad nondiscrimination protection in
employment, public services, public accommodations, services operated by public entities,
transportation, and telecommunications for individuals with disabilities. This report summarizes
the major provisions of the ADA and discusses selected recent issues, including the Supreme
Court cases and the ADA Amendments Act of 2008.
Backgr ound ..................................................................................................................................... 1
Definition of Disability...................................................................................................................3
Statement of Findings and Purposes Regarding the Definition..........................................3
Major Life Activities...........................................................................................................4
Regarded as Having a Disability.........................................................................................4
Regulatory Authority to Promulgate Regulations Regarding the Definition of
Disabi lity..................................................................................................................... ..... 5
Title V Provisions on the Definition of Disability..............................................................5
Supreme Court Cases................................................................................................................6
Bragdon v. Abbott...............................................................................................................6
Sutton v. United Airlines, Murphy v. United Parcel Service, and Albertsons, Inc. v
Kirkingburg ...................................................................................................................... 7
Toyota Motor Manufacturing of Kentucky v. Williams........................................................8
Application of the Eleventh Amendment to the ADA.....................................................................8
Backgr ound ............................................................................................................................... 8
United States v. Georgia............................................................................................................9
Tennessee v. Lane....................................................................................................................10
Garrett v. University of Alabama.............................................................................................11
Employment ..................................................................................................................... ............. 14
Statutory and Regulatory Requirements...........................................................................14
Clackamas Gastroenterology Associates P.C. v. Wells......................................................16
Other Supreme Court Employment Cases..............................................................................17
Receipt of SSI Benefits.....................................................................................................17
“Qualified” Individual with a Disability...........................................................................18
Collective Bargaining Agreements...................................................................................19
Reasonable Accommodations and Seniority Systems......................................................19
Rehiring of Individual who has been Terminated for Illegal Drug Use............................20
Employment Inquiries Relating to a Disability.......................................................................21
Defenses to a Charge of Discrimination..................................................................................21
Drugs, Alcohol, and Employer Conduct Rules.......................................................................22
Reme dies ....................................................................................................................... .......... 22
Supreme Court Cases..............................................................................................................25
Other Title II Cases.................................................................................................................26
Reme dies ....................................................................................................................... .......... 27
Barnes v. Gorman.............................................................................................................27
Bragdon v. Abbott and Direct Threats to Health and Safety...................................................29
Martin v. PGA Tour and “Fundamental Alteration”................................................................30
Spector v. Norwegian Cruise Line, Ltd. and the Application of the ADA to Foreign
ADA and the Internet..............................................................................................................32
Other Judicial Decisions.........................................................................................................34
Reme dies ....................................................................................................................... .......... 35
Te lecommunications ............................................................................................................. ......... 35
Buckhannon Board and Care Home, Inc. v. West Virginia and Attorneys’ Fees.....................38
Legislation Relating to the ADA in the 110th and 111th Congresses..............................................39
ADA Amendments Act............................................................................................................39
Ledbetter Fair Pay Act............................................................................................................40
ADA Notification Act.............................................................................................................40
Author Contact Information..........................................................................................................41
The Americans with Disabilities Act, ADA, 42 U.S.C. §§12101 et seq., has often been described
as the most sweeping nondiscrimination legislation since the Civil Rights Act of 1964. It provides
broad nondiscrimination protection in employment, public services, public accommodations, and
services operated by private entities, transportation, and telecommunications for individuals with 1
disabilities. As stated in the act, its purpose is “to provide a clear and comprehensive national
mandate for the elimination of discrimination against individuals with disabilities.” Enacted on 2
July 26, 1990, the majority of the ADA’s provisions took effect in 1992. The ADA Amendments
Act, P.L. 110-325, was enacted on September 25, 2008, to respond to a series of Supreme Court 3
decisions that had interpreted the definition of disability narrowly.
The Supreme Court has decided 20 ADA cases,4 including one in the 2005-2006 Supreme Court 5
term, United States v. Georgia, and one case was decided in the 2004-2005 term, Spector v. 6
Norwegian Cruise Line, Ltd. Two ADA cases were decided in the 2003-2004 Supreme Court 78
term, Raytheon Co. v. Hernandez and Tennessee v. Lane, and one ADA case was decided in the 9
In the most recent Supreme Court decision, United States v. Georgia,10 the Court held that Title II
of the ADA created a private cause of action for damages against the states for conduct that
actually violated the Fourteenth Amendment. However, the Court did not reach the issue of
whether the Eleventh Amendment permits a prisoner to secure money damages from a state for
state actions that violate the ADA but not the Constitution. In addition, the Supreme Court
1 The ADA and Section 504 of the Rehabilitation Act of 1973, however, have not been found to cover medical
treatment decisions. See e.g. Burger v. Bloomberg,418 F.3d 882 (8th Cir. 2005); McElroy v. Patient Selection
Committee of the Nebraska Medical Center, 2007 U.S. Dist. LEXIS 86321 (D. Nebraska Nov. 21, 2007)(an individual
with mental illness was denied a kidney transplant on medical grounds).
2 42 U.S.C. §12102(b)(1).
3 For a more detailed discussion of P.L. 110-325, see CRS Report RL34691, The ADA Amendments Act: P.L. 110-325,
by Nancy Lee Jones.
4 For a discussion of these Supreme Court decisions see CRS Report RL31401, The Americans with Disabilities Act:
Supreme Court Decisions, by Nancy Lee Jones.
5 546 U.S. 151 (2006).
6 545 U.S. 119 (2005).
7 540 U.S. 44 (2003).
8 541 U.S. 509 (2004).
9 Other Supreme Court ADA cases are: Bragdon v. Abbott, 524 U.S. 624 (1998); Pennsylvania Department of Prisons
v. Yeskey, 524 U.S. 206 (1998); Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998); Cleveland v. Policy
Management Systems, 526 U.S. 795 (1999); Olmstead v. L.C., 527 U.S. 581 (1999); Murphy v. United Parcel Service,
Inc., 527 U.S. 516 (1999); Sutton v. United Air Lines, Inc., 527 U.S. 471(1999); Albertson’s Inc. v., Kirkingburg,. 527
U.S. 555 (1999); Garrett v. University of Alabama,531 U.S. 356 (2001); PGA Tour v. Martin,532 U.S. 661 (2001);
Buckhannon Board and Care Home., Inc. v. West Virginia Department of Human Resources, 532 U.S. 598 (2001); U.S.
Airways Inc. v. Barnett, 535 U.S. 391 (2002); Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2002); Chevron
USA Inc. v. Echazabal, 536 U.S. 73 (2002); Barnes v. Gorman, 536 U.S. 181 (2002); and Clackamas Gastroenterology
Associates, P.C. v. Wells, 538 U.S 440 (2003). The three cases decided in 1998 were Bragdon v. Abbott, 524 U.S. 624
(1998); ePennsylvania Department of Prisons v. Yeskey, 524 U.S. 206 (1998); and Wright v. Universal Maritime
Service Corporation, 525 U.S. 70 (1998). For a discussion limited to Supreme Court decisions on the ADA see CRS
Report RL31401, The Americans with Disabilities Act: Supreme Court Decisions, by Nancy Lee Jones.
10 546 U.S. 151 (2006).
decided Arbaugh v. Y. & H Corp.,11 a case under Title VII of the Civil Rights Act of 1964, which
has implications for the ADA’s prohibition of discrimination where employers employ 15 or more
On December 7, 2007, the Supreme Court granted certiorari in Huber v. Wal-Mart Stores,12 to
determine whether an individual with a disability who cannot perform her current job must be
reassigned to a vacant, equivalent position without competing with other workers. However, the
Court dismissed the petition since the case was settled prior to oral argument. Currently, there is a
split in the circuits on this accommodation issue, and in light of the Court’s dismissal of the case, 13
there will continue to be divergent views.
Before examining the provisions of the ADA and these cases, it is important to briefly note the
ADA’s historical antecedents. A federal statutory provision which existed prior to the ADA,
Section 504 of the Rehabilitation Act of 1973, prohibits discrimination against an otherwise
qualified individual with a disability, solely on the basis of the disability, in any program or
activity that receives federal financial assistance, the executive agencies or the U.S. Postal 14
Service. Many of the concepts used in the ADA originated in Section 504 and its interpretations;
however, there is one major difference. While Section 504’s prohibition against discrimination is
tied to the receipt of federal financial assistance, the ADA also covers entities not receiving such
funds. In addition, the federal executive agencies and the U.S. Postal Service are covered under
Section 504, not the ADA. The ADA contains a specific provision stating that except as otherwise
provided in the act, nothing in the act shall be construed to apply a lesser standard than the
standards applied under Title V of the Rehabilitation Act (which includes Section 504) or the 15
regulations issued by federal agencies pursuant to such Title.
The ADA is a civil rights statute; it does not provide grant funds to help entities comply with its
requirements. It does include a section on technical assistance which authorizes grants and awards
for the purpose of technical assistance such as the dissemination of information about rights under 16
the ADA and techniques for effective compliance. However, there are tax code provisions which 17
may assist certain businesses or individuals.
11 Arbaugh v. Y.& H. Corp., 546 U.S. 500 (2006).
12 486 F.3d 480 (8th Cir. 2007), cert. granted 128 S.Ct. 742, 169 L.Ed 2d 579 (2007); cert. dismissed, 128 S.Ct. 116,
169 L.Ed 801 (2008).
13 See e.g., Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999), holding that a vacant position automatically
goes to a qualified individual with a disability; EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024 (7th Cir. 2000), holding
that an employer does not have to “turn away a superior applicant.”
14 29 U.S.C. §794. For a more detailed discussion of Section 504 see CRS Report RL34041, Section 504 of the
Rehabilitation Act of 1973: Prohibiting Discrimination Against Individuals with Disabilities in Programs or Activities
Receiving Federal Assistance, by Nancy Lee Jones.
15 42 U.S.C. §12201(a).
16 42 U.S.C. §12206.
17 See CRS Report RS21006, Business Tax Provisions That Benefit Persons with Disabilities, by Pamela J. Jackson,
and CRS Report RS20555, Additional Standard Tax Deduction for the Blind: A Description and Assessment, by
Pamela J. Jackson and Jennifer Teefy. See also GAO Report GAO-03-39, “Business Tax Incentives: Incentives to
Employ Workers with Disabilities Receive Limited Use and Have an Uncertain Impact” (December 2002).
The definitions in the ADA, particularly the definition of “disability,” are the starting point for an 18
analysis of rights provided by the law. The term “disability,” with respect to an individual, is
defined as “(A) a physical or mental impairment that substantially limits one or more of the major
life activities of such individual; (B) a record of such an impairment; or (C) being regarded as 19
having such an impairment (as described in paragraph (3)).” The definition of disability was the
subject of numerous cases brought under the ADA including major Supreme Court decisions
which generally interpreted the definition narrowly. Due to these interpretations, Congress
enacted the ADA Amendments Act, which kept essentially the same statutory language but
contains new rules of construction regarding the definition of disability. These rules of
construction provide that
• the definition of disability shall be construed in favor of broad coverage to the
maximum extent permitted by the terms of the act;
• the term “substantially limits” shall be interpreted consistently with the findings
and purposes of the ADA Amendments Act;
• an impairment that substantially limits one major life activity need not limit other
major life activities to be considered a disability;
• an impairment that is episodic or in remission is a disability if it would have
substantially limited a major life activity when active;
• the determination of whether an impairment substantially limits a major life
activity shall be made without regard to the ameliorative effects of mitigating
measures, except that the ameliorative effects of ordinary eyeglasses or contact 20
lenses shall be considered.
The findings of the ADA Amendments Act include statements indicating that the Supreme Court 2122
decisions in Sutton v. United Air Lines, Inc., and Toyota Motor Manufacturing v. Williams as
18 The issue of whether the ADA definition of disability would cover individuals who are discriminated against due to a
genetic condition is of less importance since the enactment of the Genetic Information Nondiscrimination Act of 2008
(GINA), P.L. 110-233. For a discussion of this act see CRS Report RL30006, Genetic Information: Legal Issues
Relating to Discrimination and Privacy, by Nancy Lee Jones and Amanda K. Sarata, and CRS Report R40116, The
Genetic Information Nondiscrimination Act of 2008: Selected Issues, by Amanda K. Sarata.
19 P.L. 110-325, §4(a), amending 42 U.S.C. §12102(3). For a more detailed discussion of these amendments see CRS
Report RL31401, The Americans with Disabilities Act: Supreme Court Decisions, by Nancy Lee Jones.
20 Low vision devices are not included in the ordinary eyeglasses and contact lens exception.
21 527 U.S. 471 (1999).
22 534 U.S. 184 (2004).
well as lower court cases have narrowed and limited the ADA from what was intended by
Congress. P.L. 110-325 specifically states that the current EEOC regulations defining the term
“substantially limits” as “significantly restricted” are “inconsistent with congressional intent, by
expressing too high a standard.” The codified findings in the original ADA are also amended to
delete the finding that “43,000,000 Americans have one or more physical or mental disabilities....
” This finding was used in Sutton to support limiting the reach of the definition of disability.
The ADA Amendments Act states that the purposes of the legislation are to carry out the ADA’s
objectives of the elimination of discrimination and the provision of “‘clear, strong, consistent,
enforceable standards addressing discrimination’ by reinstating a broad scope of protection
available under the ADA.” P.L. 110-325 rejected the Supreme Court’s holdings that mitigating
measures are to be used in making a determination of whether an impairment substantially limits
a major life activity as well as holdings defining the “substantially limits” requirements. The
substantially limits requirements of Toyota as well as the EEOC regulations defining substantially
limits as “significantly restricted” are specifically rejected in the new law.
The ADA Amendments Act specifically lists examples of major life activities including caring for
oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting,
bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and
working. The act also states that a major life activity includes the operation of a major bodily
function. The House Judiciary Committee report indicates that “this clarification was needed to
ensure that the impact of an impairment on the operation of major bodily functions is not
overlooked or wrongly dismissed as falling outside the definition of ‘major life activities’ under 23
the ADA.” There had been judicial decisions which found that certain bodily functions had not 24
been covered by the definition of disability. For example, in Furnish v. SVI Sys., Inc., the
seventh circuit held that an individual with cirrhosis of the liver due to infection with Hepatitis B
was not an individual with a disability because liver function was not “integral to one’s daily
The third prong of the definition of disability covers individuals who are “regarded as having
such an impairment (as described in paragraph (3)).” Paragraph 3 states that “[a]n individual
meets the requirement of ‘being regarded as having such an impairment’ if the individual
establishes that he or she has been subjected to an action prohibited under this Act because of an
actual or perceived physical or mental impairment whether or not the impairment limits or is
perceived to limit a major life activity.” However, impairments that are transitory and minor are
specifically excluded from the regarded prong. A transitory impairment is one with an actual or
expected duration of six months or less. The ADA Amendments Act also provides in a rule of 25
construction in Title V of the ADA that a covered entity under Title I, a public entity under Title
II, or a person who operates a place of public accommodation under Title III, need not provide a
23 H.Rept. 110-730, Part 2, at 16 (2008).
24 270 F.3d 445 (7th Cir. 2001).
25 Title I of the ADA covers employment, Title II covers states and localities, and Title III covers places of public
accommodations such as grocery stores, doctors’ offices, and movie theaters.
reasonable accommodation or a reasonable modification to policies, practices, or procedures to an
individual who meets the definition of disability solely under the “regarded as” prong of the
The Supreme Court in Sutton questioned the authority of regulatory agencies to promulgate
regulations for the definition of disability in the ADA. The definition of disability is contained in
Section 3 of the ADA, and the ADA does not specifically give any agency the authority to
interpret the definitions in Section 3, including the definition of disability. The Supreme Court
declined to address this issue since, as both parties to Sutton accepted the regulation as valid, “we
have no occasion to consider what deference they are due, if any.” The ADA Amendments Act
specifically grants regulatory authority and states that “[t]he authority to issue regulations granted
to the Equal Employment Opportunity Commission, the Attorney General, and the Secretary of
Transportation under this Act, includes the authority to issue regulations implementing the
definitions contained in sections 3 and 4.”
The definition of “disability” was further elaborated in Title V of the ADA. Section 510 provides
that the term “individual with a disability” in the ADA does not include an individual who is
currently engaging in the illegal use of drugs when the covered entity acts on the basis of such 26
use. An individual who has been rehabilitated would be covered. However, the conference
report language clarifies that the provision does not permit individuals to invoke coverage simply
by showing they are participating in a drug rehabilitation program; they must refrain from using 27
drugs. The conference report also indicates that the limitation in coverage is not intended to be
narrowly construed to only persons who use drugs “on the day of, or within a matter of weeks 28
before, the action in question.” The definitional section of the Rehabilitation Act was also
amended to create uniformity with this definition.
Section 508 provides that an individual shall not be considered to have a disability solely because 29
that individual is a transvestite. Section 511 similarly provides that homosexuality and
bisexuality are not disabilities under the act and that the term disability does not include
transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not
resulting from physical impairments, or other sexual behavior disorders, compulsive gambling,
kleptomania, or pyromania, or psychoactive substance use disorders resulting from current illegal 30
use of drugs.
26 42 U.S.C. §12210.
27 H.Rept. 101-596, 101st Cong., 2d Sess. 64; 1990 U.S. Code Cong. & Ad. News 573.
29 42 U.S.C. §12208.
30 42 U.S.C. §12211.
The issues involving the definition of “disability” have been among the most controversial under
the ADA. The Equal Employment Opportunity Commission (EEOC) has issued regulations
discussing the requirements of the definition which it amended following the Supreme Court’s 31
decision in Sutton and Murphy. The EEOC also issued detailed guidance on the definition on 32
March 15, 1995, which was also amended following the Supreme Court’s decisions. This
guidance states that the following conditions would not constitute impairments: environmental,
cultural, and economic disadvantages; age; pregnancy; common personality traits; and normal
deviations in height, weight and strength. However, certain aspects of these conditions could give
rise to an impairment. For example, complications arising from pregnancy or conditions
associated with age, such as hearing loss, could be considered to be disabilities.
The regulations and guidance issued with regard to the definition of disability are in a state of
flux since the passage of the ADA Amendments Act of 2008. The act’s provisions regarding the
definition of disability will necessitate a revision of the regulations.
The Supreme Court has decided several cases relating to the definition of disability. The first
ADA case to address the definitional issue was Bragdon v. Abbott, a case involving a dentist who 33
refused to treat an HIV infected individual outside of a hospital. In Bragdon, the Court found
that the plaintiff’s asymptomatic HIV infection was a physical impairment impacting on the
major life activity of reproduction thus rending HIV infection a disability under the ADA. The 3435
other decisions—Sutton v. United Airlines, Murphy v. United Parcel Service, Inc., Albertsons 3637
Inc. v. Kirkingburg, and Toyota Motor Manufacturing v. Williams—all involved issues which
Congress later addressed in the ADA Amendments Act. Thus, although these decisions are of
historical interest, especially regarding the impetus for the enactment of the ADA Amendments
Act, they can no longer be assumed to be valid precedent and therefore will only be briefly
The Supreme Court in Bragdon v. Abbott addressed the ADA definition of individual with a
disability and held that the respondent’s asymptomatic HIV infection was a physical impairment
impacting on the major life activity of reproduction thus rendering the HIV infection a disability 38
under the ADA. In 1994, Dr. Bragdon performed a dental examination on Ms. Abbott and
31 29 C.F.R. §§1630 et seq.
33 524 U.S. 624 (1998). For a more detailed discussion of this decision, see CRS Report 98-599, The Americans with
Disabilities Act: HIV Infection is Covered Under the Act, by Nancy Lee Jones.
34 527 U.S. 471 (1999). Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2004).
35 527 U.S. 516 (1999).
36 527 U.S. 555 (1999).
37 534 U.S. 184 (2002).
38 524 U.S. 624 (1998).
discovered a cavity. Ms. Abbott had indicated in her registration form that she was HIV positive
but at that time she was asymptomatic. Dr. Bragdon told her that he would not fill her cavity in
his office but would treat her only in a hospital setting. Ms. Abbott filed an ADA complaint and
prevailed at the district court, courts of appeals and the Supreme Court on the issue of whether
she was an individual with a disability but the case was remanded for further consideration
regarding the issue of direct threat.
In arriving at its holding, Justice Kennedy, writing for the majority, first looked to whether Ms.
Abbott’s HIV infection was a physical impairment. Noting the immediacy with which the HIV
virus begins to damage an individual’s white blood cells, the Court found that asymptomatic HIV
infection was a physical impairment. Second, the Court examined whether this physical
impairment affected a major life activity and concluded that the HIV infection placed a
substantial limitation on her ability to reproduce and to bear children and that reproduction was a
major life activity. Finally, the Court examined whether the physical impairment was a substantial
limitation on the major life activity of reproduction. After evaluating the medical evidence, the
Court concluded that Ms. Abbott’s ability to reproduce was substantially limited in two ways: (1)
an attempt to conceive would impose a significant risk on Ms. Abbott’s partner, and (2) an HIV 39
infected woman risks infecting her child during gestation and childbirth.
Three Supreme Court decisions in 1999 addressed the definition of disability and specifically
discussed the concept of mitigating measures. Sutton v. United Air Lines involved sisters who
were rejected from employment as pilots with United Air Lines because they wore eyeglasses.
The Supreme Court in Sutton examined the definition of disability used in the original ADA and
found that the determination of whether an individual has a disability should be made with
reference to measures that mitigate the individual’s impairment. The Sutton Court stated: “a
disability’ exists only where an impairment ‘substantially limits’ a major life activity, not where it
‘might,’ ‘could,’ or ‘would’ be substantially limiting if mitigating measures were not taken.” The
Court also emphasized that the statement of findings in the ADA that some 43,000,000 Americans
have one or more physical or mental disability “requires the conclusion that Congress did not
intend to bring under the statute’s protection all those whose uncorrected conditions amount to
Similarly, in Murphy v. United Parcel Service, Inc., the Court held that the fact that an individual
with high blood pressure was unable to meet the Department of Transportation (DOT) safety
standards was not sufficient to create an issue of fact regarding whether an individual is regarded
as unable to utilize a class of jobs. The Court in Murphy found that an employee is regarded as
having a disability if the covered entity mistakenly believes that the employee’s actual,
nonlimiting impairment substantially limits one or more major life activities. And in the last of
this trilogy of 1999 cases, the Court in Albertsons v. Kirkingburg held that a trucker with
monocular vision who was able to compensate for this impairment was not a person with a
39 Another major issue addressed in Bragdon involved the interpretation of the ADA’s direct threat exemption which
will be discussed in the section on public accommodations. For a more detailed discussion of Bragdon, see CRS Report
98-599, The Americans with Disabilities Act: HIV Infection is Covered Under the Act, by Nancy Lee Jones.
In the 2002 case of Toyota Motor Manufacturing v. Williams, the meaning of “substantially
limits” was examined, and Justice O’Connor, writing for the unanimous Court, determined that
the word substantial “clearly precluded impairments that interfere in only a minor way with the
performance of manual tasks.” The Court also found that the term “major life activity” “refers to
those activities that are of central importance to daily life.” Finding that these terms are to be
“interpreted strictly,”the Court held that “to be substantially limited in performing manual tasks,
an individual must have an impairment that prevents or severely restricts the individual from
doing activities that are of central importance to most people’s daily lives.”
The Eleventh Amendment states: “The Judicial power of the United States shall not be construed
to extend to any suit in law or equity, commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects of any Foreign State.” The Supreme Court
has found that the Eleventh Amendment cannot be abrogated by the use of Article I powers but
that Section 5 of the Fourteenth Amendment can be used for abrogation in certain circumstances.
Section 5 of the Fourteenth Amendment states: “The Congress shall have the power to enforce, by
appropriate legislation, the provisions of this article.”
The circumstances where Section 5 of the Fourteenth Amendment can be used to abrogate the
Eleventh Amendment were discussed in the Supreme Court decisions in College Savings Bank v. 40
Florida Prepaid Postsecondary Educ. Expense Board, Florida Prepaid Postsecondary Educ. 4142
Expense Board v. College Savings Bank, and Kimel v. Florida Board of Regents. They
reiterated the principle that the Congress may abrogate state immunity from suit under the
Fourteenth Amendment and found that there were three conditions necessary for successful
• Congressional power is limited to the enactment of “appropriate” legislation to
enforce the substantive provisions of the Fourteenth Amendment.
• The legislation must be remedial in nature.
• There must be a “congruence and proportionality” between the injury to be
prevented and the means adopted to that end.
40 527 U.S. 666 (1999) (The Trademark Remedy Clarification Act, TRCA, which subjected states to suit for false and
misleading advertising, did not validly abrogate state sovereign immunity; neither the right to be free from a business
competitor’s false advertising nor a more generalized right to be secure in one’s business interests qualifies as a
property right protected by the Due Process Clause).
41 527 U.S. 627 (1999)(Congress may abrogate state sovereign immunity but must do so through legislation that is
appropriate within the meaning of Section 5 of the Fourteenth Amendment; Congress must identify conduct that
violates the Fourteenth Amendment and must tailor its legislation to remedying or preventing such conduct).
42 528 U.S. 62 (2000).
The ADA uses both the Fourteenth Amendment and the Commerce Clause of the Constitution as 43
its constitutional basis. It also specifically abrogates state immunity under the Eleventh 44
Amendment. The ADA, then, is clear regarding its attempt to abrogate state immunity; the issue
is whether the other elements of a successful abrogation are present. The Supreme Court in
Garrett v. University of Alabama found that they were not with regard to Title I while in 45
Tennessee v. Lane the Court upheld Title II as it applies to the access to courts. Most recently, 46
the Supreme Court in United States v. Georgia, held that Title II of the ADA created a private
cause of action for damages against the states for conduct that actually violates the Fourteenth
Amendment. However, the Court did not reach the issue of whether the Eleventh Amendment
permits a prisoner to secure money damages from a state for state actions that violate the ADA
but not the Constitution.
United States v. Georgia47 raised the issue of whether Congress has validly abrogated State
immunity from damage suits under Title II of the ADA in situations involving accommodations
for prisoners with disabilities. The Supreme Court addressed issues involving prisoners under the 48
ADA in Pennsylvania Department of Corrections v. Yeskey. In Yeskey the Court held that state
prisons are within the ADA’s statutory definition of “public entity” but did not address the
constitutional issues. United States v. Georgia involved the claims of a Georgia prisoner who is
paraplegic and uses a wheelchair. The inmate claimed that he was confined for 23-24 hours a day
to a cell so small that he was unable to maneuver his wheelchair. In addition, he argued that he
was deprived of access to a toilet, and a shower and was forced to sit in his own bodily waste
because prison officials refused to provide assistance. These conditions, he argued, violated the
Eighth Amendment’s prohibition on cruel and unusual punishment and the ADA. The eleventh
circuit court of appeals did not address the sufficiency of the claim under Title II of the ADA but
found that the Title II claims for monetary damages against the state were barred by sovereign
The Supreme Court, in an unanimous opinion written by Justice Scalia, held that Title II of the
ADA created a private cause of action for damages against the states for conduct that actually
violates the Fourteenth Amendment. In arriving at this holding, the Court noted that the plaintiff’s
claims for money damages under the ADA were based in large part on violations of Section 1 of
the Fourteenth Amendment and observed that this differed from other cases regarding the
Eleventh Amendment such as Tennessee v. Lane. Justice Scalia recognized that the Supreme
Court has been split “regarding the scope of Congress’s ‘prophylactic’ enforcement powers under
§5 of the Fourteenth Amendment,” but found common ground in the recognition of Section 5
powers to enforce the provisions of the Fourteenth Amendment by creating private remedies
against actual violations of these provisions. Thus, Justice Scalia concluded for the Court,
43 42 U.S.C. §12101(b)(4). The Commerce Clause would not be sufficient authority on which to abrogate state
sovereign immunity since the Supreme Court’s decision in Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996).
44 42 U.S.C. §12202.
45 It should be noted that the Eleventh Amendment applies only to states, not municipalities. See e.g., Ability Center of
Greater Toledo v. City of Sandusky, 385 F.3d 901 (6th Cir. 2004).
46 546 U.S. 151 (2006).
48 524 U.S. 206 (1998). This case is discussed in more detail in the section on Title II of the ADA.
“insofar as Title II creates a private cause of action for damages against the States for conduct that
actually violated the Fourteenth Amendment, Title II validly abrogates state sovereign immunity.”
United States v. Georgia is a limited decision which does not address the split in the Supreme
Court regarding when there is abrogation of the Eleventh Amendment under the ADA.
In Tennessee v. Lane,49 the Supreme Court retreated somewhat from its previous approaches to
the application of the Eleventh Amendment, holding that Title II of the ADA, as it applies to the
fundamental right of access to the courts, constitutes a valid exercise of congressional authority
under Section 5 of the Fourteenth Amendment. Lane was an action brought by George Lane and
Beverly Jones, both paraplegics who use wheelchairs for mobility, against Tennessee. Mr. Lane
alleged that he was compelled to appear in court to answer criminal charges and had to crawl up
two flights of stairs to get to the court room. Ms. Jones, a certified court reporter, alleged that she
was been unable to gain access to a number of county courthouses, thus losing employment
opportunities. In a 5-4 decision, with the opinion written by Justice Stevens, the Court noted that
when analyzing an Eleventh Amendment immunity issue, two questions must be resolved: (1)
whether Congress unequivocally expressed its intent to abrogate; and (2), if so, whether it acted
pursuant to a valid grant of congressional authority. The ADA specifically provides for 5051
abrogation so the Court then applied the test set out in City of Boerne v. Flores, which found
that legislation enacted pursuant to Section 5 of the Fourteenth Amendment is valid if it had “a
congruence and proportionality between the injury to be prevented or remedied and the means 52
adopted to that end.”
Justice Stevens’ opinion found that Title II of the ADA, like Title I, sought to prohibit irrational
discrimination but noted that Title II also sought to enforce a variety of basic constitutional
guarantees, including the right of access to the courts. Noting the pattern of disability
discrimination that led to the enactment of the ADA, and the “sheer volume of evidence
demonstrating the nature and extent of unconstitutional discrimination against persons with
disabilities in the provision of public services,” the Court held that the inadequate provisions of
public services and access to public facilities was an appropriate subject for remedial prophylactic
legislation. The final issue was whether Title II was an appropriate response to this history and
pattern of discrimination. Although the Court had been urged to consider the entire sweep of Title
II, Justice Stevens declined to broaden the ruling beyond the issue of the accessibility of judicial
services. The Court held that the remedies were congruent and proportional to the goal of
enforcing the right of access to the courts and emphasized that Title II of the ADA requires only
“reasonable modifications” that would not fundamentally alter the nature of the service provided
and that do not impose an undue financial or administrative burden, or threaten historic
preservation interests. Thus, the Court concluded, Title II “as it applies to the class of cases
implicating the fundamental right of access to the courts, constitutes a valid exercise of Congress’
§5 authority to enforce the guarantees of the Fourteenth Amendment.”
49 541 U.S. 509 (2004).
50 42 U.S.C. §12202.
51 521 U.S. 507 (1997).
52 Id. at 520.
The Lane decision was close, 5-4, with two concurring opinions and a dissenting opinion written
by then Chief Justice Rehnquist. It is also limited in its scope. Although the Chief Justice argued
in his dissenting opinion that Title II of the ADA ought to be considered as a whole, not on a case-
by-case basis, the majority disagreed and reached a finding of constitutionality on the specific
issue of the accessibility of judicial services. The majority’s emphasis on detailed fact finding in 53
the legislative history and its statement in the ADA’s findings and purposes indicates how
crucial these facts are to proper abrogation of the Eleventh Amendment. In addition, the Court’s
emphasis on the constitutional rights involved in the access to courts indicates that cases which
do not involve such rights may not pass constitutional muster in subsequent decisions.
In a decision prior to Lane on Title I of the ADA, the Supreme Court reached a different 54
conclusion regarding abrogation. In Garrett v. University of Alabama, another 5-4 decision, the
Court held that the Eleventh Amendment bars suits to recover monetary damages by state
employees under Title I of the Americans with Disabilities Act (ADA). Although the ruling is
narrowly focused concerning Title I of the ADA, it has broad implications regarding federal-state 55
power and emphasizes the difficulty of drafting federal legislation under Section 5 of the 56
Fourteenth Amendment that will withstand Eleventh Amendment scrutiny.
Garrett involved two consolidated cases brought by separate Alabama employees. One of the
employees, Patricia Garrett, had been undergoing treatment for breast cancer when, she alleged,
she was transferred to a lesser position after having been told that her supervisor did not like sick
people. The second plaintiff, Milton Ash, alleged that the Alabama Department of Human
Services did not enforce its non-smoking policy and that, therefore, he was not able to control his
asthma. The Eleventh Circuit held that the state was not immune from suits for damages. The
Supreme Court reversed.
Writing for the majority, Chief Justice Rehnquist briefly examined the ADA’s statutory language
and the general principles of the Eleventh Amendment immunity. He observed that the first step
in applying these principles was to identify the scope of the constitutional right at issue, in other
words, to identify constitutional rights that individuals with disabilities have to be free from 57
discrimination. Discussing Cleburne v. Cleburne Living Center, Chief Justice Rehnquist
emphasized that discrimination against individuals with disabilities is entitled to only “minimum
‘rational-basis’ review” and stated: “Thus, the result of Cleburne is that States are not required by
the Fourteenth Amendment to make special accommodations for the disabled, so long as their
53 42 U.S.C. §12101(a)(3).
54 531 U.S. 356 (2001). For a more detailed discussion of Garrett, see CRS Report RS20828, University of Alabama v.
Garrett: Federalism Limits on the Americans with Disabilities Act, by Nancy Lee Jones.
55 For a detailed discussion of federalism, see CRS Report RL30315, Federalism, State Sovereignty, and the
Constitution: Basis and Limits of Congressional Power, by Kenneth R. Thomas.
56 It should also be observed that the Supreme Court did not address this issue in the cases it has already decided since
it was not presented to the Court. “We do not address another issue presented by petitioners: whether application of the
ADA to state prisons is a constitutional exercise of Congress’s power under either the Commerce Clause ... or §5 of the
Fourteenth Amendment.... ” Pennsylvania Department of Corrections v. Yeskey, supra. “This case, as it comes to us,
presents no constitutional question.” Olmstead v. L.C., supra.
57 473 U.S. 432 (1985). In Cleburne, the Supreme Court applied the Fourteenth Amendment to individuals with mental
retardation and found that, although such individuals were not part of a suspect class, a zoning ordinance which
excluded group homes from certain locations violated the Fourteenth Amendment.
actions towards such individuals are rational. They could quite hard headedly—and perhaps
hardheartedly—hold to job qualification requirements which do not make allowance for the
disabled. If special accommodations for the disabled are to be required, they have to come from 58
positive law and not through the Equal Protection Clause.”
After examining the constitutional rights of individuals with disabilities, the majority opinion in
Garrett examined whether Congress had identified a history and pattern of unconstitutional
employment discrimination by the states against individuals with disabilities. Chief Justice
Rehnquist observed that the authority of Congress under Section 5 of the Fourteenth Amendment 59
“is appropriately exercised only in response to state transgressions.” He found that the
legislative history of the ADA did not identify such a pattern. Although the record was replete
with examples of discrimination, Chief Justice Rehnquist noted that most of these examples were
drawn from units of local government and not the states and that “the Eleventh Amendment does 60
not extend its immunity to units of local government.”
The Garrett majority observed that even if a pattern of unconstitutional discrimination by states
was found, issues relating to whether there was a “congruence and proportionality” between the
injury to be prevented and the means adopted would raise concerns. Chief Justice Rehnquist
observed that “it would be entirely rational (and therefore constitutional) for a state employer to
conserve scarce financial resources by hiring employees who are able to use existing facilities”
but that the ADA requires that existing facilities be readily accessible to and usable by individuals 61
with disabilities. The ADA’s accommodation requirements were seen as “far exceed(ing) what is 62
constitutionally required.” The ADA’s requirements forbidding standards, criteria, or methods of
administration that disparately impact individuals with disabilities were also seen as inconsistent
with the requirements for legislation under Section 5 of the Fourteenth Amendment.
In conclusion, the majority opinion stated that “Congress is the final authority as to desirable
public policy, but in order to authorize private individuals to recover money damages against the
States, there must be a pattern of discrimination by the States which violates the Fourteenth
Amendment, and the remedy imposed by Congress must be congruent and proportional to the 63
targeted violation. Those requirements are not met here.... ” However, after reaching this
holding, the Garrett majority went on to note that it does not mean that individuals with
disabilities have no federal recourse. The opinion was limited to the recovery of monetary
damages and the standards of Title I of the ADA were seen as still applicable to the states. In
addition, the Court noted that the federal government could enforce those rights in actions for
monetary damages and that state law would offer some means of redress.
In a concurring opinion, Justices Kennedy and O’Connor, emphasized the limited nature of the
opinion stating that “what is in question is not whether the Congress, acting pursuant to a power
granted to it by the Constitution, can compel the States to act. What is involved is only the
question whether the States can be subjected to liability in suits brought not by the Federal
58 531 U.S. 356, 367-368.
59 Id. at 368.
60 Id. at 369.
61 Id. at 372.
63 Id. at 374.
Government but by private persons seeking to collect moneys from the state treasury without the 64
consent of the State.”
Justice Breyer, joined by Justices Stevens, Souter and Ginsburg, strongly disagreed with the
majority’s opinion and stated that Congress could have reasonably concluded that the Title I
remedies of the ADA were appropriate legislation under the Fourteenth Amendment. The
emphasis in the majority opinion on the limited legislative history was described as ignoring the
“powerful evidence of discriminatory treatment throughout society in general” which “implicates 65
state governments as well, for state agencies form part of that same larger society.” The rules the
majority used to find the legislative record inadequate were seen as flawed, using standards more
appropriately applied to judges than to Congress. In the view of the dissenters, Congress has
broad authority to remedy violations of the Fourteenth Amendment. “There is simply no reason to
require Congress, seeking to determine facts relevant to the exercise of its §5 authority, to adopt
rules or presumptions that reflect a court’s institutional limitations. Unlike courts, Congress can
readily gather facts from across the Nation, assess the magnitude of a problem, and more easily 66
find an appropriate remedy.”
University of Alabama v. Garrett is a major decision, further emphasizing the Court’s federalism 67
theories and raising separation of powers issues as well. Although the majority in Garrett did
not rule out all legislation enacted pursuant to §5 of the Fourteenth Amendment, it made the
enactment of such legislation significantly less likely to withstand Eleventh Amendment scrutiny.
In addition, the Court’s comments on disparate impact discrimination could signal a challenge to
other uses of this approach and some commentators have stated this could have implications for 68
other statutes, including Title VII of the Civil Rights Act, which prohibits racial discrimination.
More specifically, with regard to the ADA, the majority took pains to describe the limited nature
of the holding. It is limited to Title I of the ADA, deals only with monetary damages, and leaves
open other avenues of relief such as enforcement by the Equal Employment Opportunities
Commission and state laws. However, the absence of monetary damages does make individual
suits against states much less likely and has been described as a significant blow to ADA
enforcement. Although the Court’s federalism doctrine has been somewhat reined in by Tennessee 69
v. Lane (discussed above) and Nevada Dept. of Human Resources v. Hibbs, which upheld the 70
Family and Medical Leave Act as a valid exercise of congressional power pursuant to Section 5
of the Fourteenth Amendment, the limited nature of these holdings renders their application to
other as yet untried aspects of the ADA regarding the Eleventh Amendment unclear. In other
words, the reasoning in Garrett was not refuted by Tennessee v. Lane and it remains for future
decisions to determine what result will be reached in cases involving access to facilities such as 71
64 Id. at 376.
65 Id. at 378.
66 Id. at 384.
67 Linda Greenhouse, “The High Court’s Target: Congress,” New York Times, wk 3 (Feb 25, 2001).
69 538 U.S. 721 (2003).
70 29 U.S.C. §2601 et seq.
71 At least two states have enacted legislation waiving the state’s immunity for ADA purposes. See Minn. Stat. §1.05
(2005): “An employee, former employee, or prospective employee of the state who is aggrieved by the state’s violation
of the Americans with Disabilities Act of 1990 ... may bring a civil action against the state in any court of competent
jurisdiction for such legal or equitable relief as will effectuate the purposes of the act.” This Minnesota law also waived
Title I of the ADA, as amended by the ADA Amendments Act of 2008, provides that no covered
entity shall discriminate against a qualified individual on the basis of disability in regard to job
application procedures, the hiring, advancement, or discharge of employees, employee 72
compensation, job training, and other terms, conditions, and privileges of employment. The
term employer is defined as a person engaged in an industry affecting commerce who has 15 or 73
more employees. Therefore, the employment section of the ADA, unlike the section on public
accommodations, which will be discussed subsequently, is limited in scope to employers with 15
or more employees. This parallels the coverage provided in the Civil Rights Act of 1964. As 74
noted previously, the Supreme Court, in Arbaugh v. Y. & H. Corp., held that the 15-employee 75
limitation in Title VII of the Civil Rights Act was not jurisdictional, but rather was related to the
substantive adequacy of a claim. Thus, if the defense that the employer employs fewer than 15
employees is not raised in a timely manner, a court is not obligated to dismiss the case. Because
the ADA’s 15-employee limitation language parallels that of Title VII, it is likely that a court
would interpret the ADA’s requirement in the same manner.
The term employee with respect to employment in a foreign country includes an individual who is
a citizen of the United States; however, it is not unlawful for a covered entity to take action that
constitutes discrimination with respect to an employee in a workplace in a foreign country if 76
compliance would cause the covered entity to violate the law of the foreign country.
If the issue raised under the ADA is employment related, and the threshold issues of meeting the
definition of an individual with a disability and involving an employer employing more than 15
individuals are met, the next step is to determine whether the individual is a qualified individual
immunity regarding the Age Discrimination in Employment Act, the Fair Labor Standards Act, and the Family and
Medical Leave Act. Illinois statutes contain a similar section. See 745 Ill. Compiled Stat. Ann. 5/1.5 (2006).
72 42 U.S.C. §12112(a), as amended by P.L. 110-325, §5. The ADA Amendments Act strikes the prohibition of
discrimination against a qualified individual with a disability because of the disability of such individual and substitutes
the prohibition of discrimination against a qualified individual “on the basis of disability.” The Senate Managers’
Statement noted that this change “ensures that the emphasis in questions of disability discrimination is properly on the
critical inquiry of whether a qualified person has been discriminated against on the basis of disability, and not unduly
focused on the preliminary question of whether a particular person is a ‘person with a disability.’” 153 CONG. REC. S.
8347 (Sept. 11, 2008)(Statement of Managers to Accompany S. 3406, the Americans with Disabilities Act
Amendments Act of 2008). Two courts of appeal have held that the prohibition of discrimination in the “terms,
conditions, or privileges of employment” creates a viable cause of action for disability-based harassment. See Flowers thth
v. Southern Reg’l Physician Servs, Inc., 247 F.3d 229 (5 Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4 th
Cir. 2001); Shaver v. Independent Stave Co., 350 F.3d 716 (8 Cir. 2003).
73 42 U.S.C. §12111(5).
74 Arbaugh v. Y. & H. Corp., 546 U.S. 500 (2006).
75 42 U.S.C. §2000e(b).
76 P.L. 102-166 added this provision.
with a disability who, with or without reasonable accommodation, can perform the essential
functions of the job.
Title I defines a “qualified individual with a disability.” Such an individual is “an individual with
a disability who, with or without reasonable accommodation, can perform the essential functions 77
of the employment position that such person holds or desires.” The ADA incorporates many of
the concepts set forth in the regulations promulgated pursuant to Section 504, including the
requirement to provide reasonable accommodation unless the accommodation would pose an 78
undue hardship on the operation of the business.
“Reasonable accommodation” is defined in the ADA as including making existing facilities
readily accessible to and usable by individuals with disabilities, and job restructuring, part-time or
modified work schedules, reassignment to a vacant position, acquisition or modification of
equipment or devices, adjustment of examinations or training materials or policies, provision of 79
qualified readers or interpreters or other similar accommodations. “Undue hardship” is defined 80
as “an action requiring significant difficulty or expense.” Factors to be considered in
determining whether an action would create an undue hardship include the nature and cost of the
accommodation, the overall financial resources of the facility, the overall financial resources of
the covered entity, and the type of operation or operations of the covered entity.
Reasonable accommodation and the related concept of undue hardship are significant concepts
under the ADA and are one of the major ways in which the ADA is distinguishable from Title VII
jurisprudence. The statutory language paraphrased above provides some guidance for employers
but the details of the requirements have been the subject of numerous judicial decisions. In 81
addition, the EEOC issued detailed enforcement guidance on these concepts on March 1, 1999,
which was amended on October 17, 2002, to reflect the Supreme Court’s decision in U.S. Airways 82
v. Barnett. Although much of the guidance reiterates longstanding EEOC interpretations in a 83
question and answer format, the EEOC also took issue with some judicial interpretations.
Notably the EEOC stated that
77 42 U.S.C. §1211(8). The EEOC has stated that a function may be essential because (1) the position exists to perform
the duty, (2) there are a limited number of employees available who could perform the function, or (3) the function is
highly specialized. 29 C.F.R. §1630(n)(2). A number of issues have been litigated concerning essential functions. For
example, some courts have found that regular attendance is an essential function of most jobs. See e.g., Carr v. Reno, th
23 F.3d 525 (D.C.Cir. 1994), Brenneman v. Medcentral Health System, 366 F.3d 412 (6 Cir. 2004), cert. denied, 543
U.S. 1114 (2005)(“the record is replete with evidence of plaintiff’s excessive absenteeism, which rendered him st
unqualified for that position.”) In Mulloy v. Acushnet Co., 460 F.3d 141 (1 Cir. 2006), the first circuit found that an
essential function of the job at issue included being physically present at the plant in order to perform troubleshooting
and take corrective actions and found that the plaintiff could not perform the job’s essential functions remotely. In th
Fraizier v. Simmons, 254 F.3d 1247 (10 Cir. 2001), the tenth circuit held that a crime investigator with MS was not
otherwise qualified to perform his job duties since it would be very difficult for him to stand or walk for prolonged
periods, to run or to physically restrain persons. Similarly, a nurse with a back injury that prevented her from lifting
more than 15 or 20 pounds was not a qualified individual with a disability since the ability to lift fifty pounds was an st
essential function of her job. Phelps v. Optima Health, Inc., 251 F.3d 21 (1 Cir. 2001).
78 See 45 C.F.R. Part 84.
79 42 U.S.C. § 12111(9).
80 42 U.S.C. §12111(10).
81 EEOC, “EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans
with Disabilities Act,” No. 915.002 (March 1, 1999).
83 It should be emphasized that the EEOC’s guidance does not have the force of regulations and courts are not bound to
• an employee who is granted leave as a reasonable accommodation is entitled to
return to his or her same position, unless this imposes an undue hardship; and
• an employer is limited in the ability to question the employee’s documentation of
a disability (“An employer cannot ask for documentation when: (1) both the
disability and the need for reasonable accommodation are obvious, or (2) the
individual has already provided the employer with sufficient information to
substantiate that s/he has an ADA disability and needs the reasonable
Issues regarding the amount of money that must be spent on reasonable accommodations have 84
also arisen. The EEOC regulations and guidance provide that an employer does not have to 85
provide a reasonable accommodation that would cause an “undue hardship” to the employer. 86
However, the seventh circuit in Vande Zande v. State of Wisconsin Department of Administration
found that the cost of the accommodation cannot be disproportionate to the benefit. “Even if an
employer is so large or wealthy—or, like the principal defendant in this case, is a state, which can
raise taxes in order to finance any accommodations that it must make to disabled employees—
that it may not be able to plead ‘undue hardship’, it would not be required to expend enormous 87
sums in order to bring about a trivial improvement in the life of a disabled employee.”
The Supreme Court examined the definition of the term “employee” under the ADA in 88
Clackamas Gastroenterology Associates P.C. v. Wells. In Clackamas, the Court held in a 7-2
decision written by Justice Stevens, that the EEOC’s guidelines concerning whether a
shareholder-director is an employee were the correct standard to use. Since the evidence was not
clear, the case was remanded for further proceedings. Clackamas Gastroenterology Associates is a
medical clinic in Oregon that employed Ms. Wells as a bookkeeper from 1986-1997. After her
termination from employment, Ms. Wells brought an action alleging unlawful discrimination on
the basis of discrimination under Title I of the ADA. The clinic denied that it was covered by the
ADA since it argued that it did not have 15 or more employees for the 20 weeks per year required
by the statute. The determination of coverage was dependent on whether the four physician-
shareholders who owned the professional corporation were counted as employees.
The Court first looked to the definition of employee in the ADA which states that an employee is 89
“an individual employed by an employer.” This definition was described as one which is
“completely circular and explains nothing.” The majority then looked to common law,
specifically the common law element of control. This is the position advocated by the EEOC. The
EEOC has issued guidelines which list six factors to be considered in determining whether the
follow the guidance although some courts do defer to agency expertise.
84 29 C.F.R. §1630.9.
86 44 F.3d 538 (7th Cir. 1995).
87 Id. At 542-543. See also Schmidt v. Methodist Hospital of Indiana, 89 F.3d 342 (7th Cir. 1996), where the court found
that reasonable accommodation does not require an employer to provide everything an employee requests.
88 538 U.S. 440 (2003).
89 42 U.S.C. §12111(4).
individual acts independently and participates in managing the organization or whether the
individual is subject to the organization’s control and therefore an employee. These six factors
are: “Whether the organization can hire or fire the individual or set the rules and regulations of
the individual’s work; Whether and, if so, to what extent the organization supervises the
individual’s work; Whether the individual reports to someone higher in the organization; Whether
and, if so, to what extent the individual is able to influence the organization; Whether the parties
intended that the individual be an employee, as expressed in written agreements or contracts; and 90
Whether the individual shares in the profits, losses, and liabilities of the organization.”
Justice Stevens, writing for the majority found that some of the district court’s findings of fact,
when considered in light of the EEOC’s standard, appeared to favor the conclusion that the four
physicians were not employees of the clinic. However, since there was some evidence that might
support the opposite conclusion, the Court remanded the case for further proceedings.
Justice Ginsburg, joined by Justice Breyer, dissented from the majority’s opinion. The dissenters
argued that the Court’s opinion used only one of the common-law aspects of a master-servant
relationship. In addition, Justice Ginsburg noted that the physician-shareholders argued they were
employees for the purposes of other statutes, notably the Employee Retirement Income Security
Act of 1974 (ERISA) and stated “I see no reason to allow the doctors to escape from their choice
of corporate form when the question becomes whether they are employees for the purposes of
federal antidiscrimination statutes.”
Many of the Supreme Court decisions have involved employment situations although a number of
these cases did not reach past the threshold issue of whether the individual alleging employment
discrimination was an individual with a disability. There are still several significant employment
issues, such as reasonable accommodations, which have not been dealt with by the Court. In
addition, the landmark decision of University of Alabama v. Garrett on the application of the
Eleventh Amendment arose in the employment context although it is discussed separately above.
The relationship between the receipt of SSDI benefits and the ability of an individual to pursue an
ADA employment claim was the issue in Cleveland v. Policy Management Systems Corp, supra.
The Supreme Court unanimously held that pursuit and receipt of SSDI benefits does not
automatically stop a recipient from pursuing an ADA claim or even create a strong presumption
against success under the ADA. Observing that the Social Security Act and the ADA both help
individuals with disabilities but in different ways, the Court found that “despite the appearance of
conflict that arises from the language of the two statutes, the two claims do not inherently conflict
to the point where courts should apply a special negative presumption like the one applied by the
Court of Appeals here.” The fact that the ADA defines a qualified individual as one who can
perform the essential functions of the job with or without reasonable accommodation was seen as
a key distinction between the ADA and the Social Security Act. In addition, the Court observed
that SSDI benefits are sometimes granted to individuals who are working.
90 EEOC Compliance Manual §605:0009.
The seventh circuit in Johnson v. ExxonmobilCorp.,91 applied the Supreme Court’s analysis in
Cleveland and distinguished the factual situations. In Cleveland the plaintiff had argued that she
had made consistent statements in her ADA claim and in the SSDI application; however, in
Johnson the seventh circuit found that the plaintiff had merely argued that “he was mistaken in
his SSDI application.” The court of appeals concluded that “Cleveland does not stand for the
proposition that defendants should be allowed to explain why they gave false statements on their 92
SSDI applications, which is essentially what Johnson seeks to do here.”
In Albertsons, Inc. v. Kirkingburg,93 the Supreme Court held that an employer need not adopt an
experimental vision waiver program. Title I of the ADA prohibits discrimination in employment
against a “qualified” individual with a disability. In finding that the plaintiff’s inability to comply
with the general regulatory vision requirements rendered him unqualified, the Court framed the
question in the following manner. “Is it reasonable ... to read the ADA as requiring an employer
like Albertsons to shoulder the general statutory burden to justify a job qualification that would
tend to exclude the disabled, whenever the employer chooses to abide by the otherwise clearly
applicable, unamended substantive regulatory standard despite the Government’s willingness to
waive it experimentally and without any finding of its being inappropriate?” Answering this
question in the negative, the Court observed that employers should not be required to “reinvent
the Government’s own wheel” and stated that “it is simply not credible that Congress enacted the
ADA (before there was any waiver program) with the understanding that employers choosing to
respect the Government’s sole substantive visual acuity regulation in the face of an experimental
waiver might be burdened with an obligation to defend the regulation’s application according to
its own terms.”
In Chevron U.S.A. Inc., v. Echazabal,94 the Supreme Court held unanimously that the ADA does
not require an employer to hire an individual with a disability if the job in question would
endanger the individual’s health. The ADA’s statutory language provides for a defense to an
allegation of discrimination that a qualification standard is “job related and consistent with 95
business necessity.” The act also allows an employer to impose as a qualification standard that
the individual shall not pose a direct threat to the health or safety of other individuals in the 96
workplace but does not discuss a threat to the individual’s health or safety. The ninth circuit in
Echazabal had determined that an employer violated the ADA by refusing to hire an applicant
with a serious liver condition whose illness would be aggravated through exposure to the 97
chemicals in the workplace. The Supreme Court rejected the ninth circuit decision and upheld a
regulation by the EEOC that allows an employer to assert a direct threat defense to an allegation
of employment discrimination where the threat is posed only to the health or safety of the 98
individual making the allegation. Justice Souter found that the EEOC regulations were not the
91 426 F.3d 887 (7th Cir. 2005).
92 Id. at 892.
93 527 U.S. 555 (1999).
94 536 U.S. 73 (2002).
95 42 U.S.C. §12113(a).
96 42 U.S.C. §12113(b).
97 226 F.3d 1063 (9th Cir. 2000).
98 29 C.F.R. §1630.15(b)(2).
kind of workplace paternalism that the ADA seeks to outlaw. “The EEOC was certainly acting
within the reasonable zone when it saw a difference between rejecting workplace paternalism and
ignoring specific and documented risks to the employee himself, even if the employee would take
his chances for the sake of getting a job.” The Court emphasized that a direct threat defense must
be based on medical judgment that uses the most current medical knowledge.
The Supreme Court had examined an analogous issue in UAW v. Johnson Controls, Inc.,99 which
held that under the Civil Rights Act of 1964 employers could not enforce “fetal protection”
policies that kept women, whether pregnant or with the potential to become pregnant, from jobs
that might endanger a developing fetus. Although this case was raised by the plaintiff, the
Supreme Court distinguished the decision there from that in Echazabal. The Johnson Controls
decision was described as “concerned with paternalistic judgments based on the broad category of
gender, while the EEOC has required that judgments based on the direct threat provision be made
on the basis of individualized risk assessments.”
Echazabal has been hailed by employers as “a major victory for the business community.”100
However, Andrew Imparato, the President of the American Association of People with
Disabilities, stated that “The United States Supreme Court today once again demonstrated its
fundamental hostility to disability rights in the workplace.... Today’s decision invites paternalism
and represents a major step backward for the more than 35 million working age Americans with 101
The interplay between rights under the ADA and collective bargaining agreements was the
subject of the Supreme Court’s decision in Wright v. Universal Maritime Service Corp., supra.
The Court held there that the general arbitration clause in a collective bargaining agreement does
not require a plaintiff to use the arbitration procedure for an alleged violation of the ADA.
However, the Court’s decision was limited since the Court did not find it necessary to reach the
issue of the validity of a union-negotiated waiver. In other words, the Court found that a general
arbitration agreement in a collective bargaining agreement is not sufficient to waive rights under
civil rights statutes but situations where there is a specific waiver of ADA rights were not 102
The Supreme Court in U.S. Airways v. Barnett103 held that an employer’s showing that a
requested accommodation by an employee with a disability conflicts with the rules of a seniority
system is ordinarily sufficient to establish that the requested accommodation is not “reasonable”
99 499 U.S. 187 (1991).
100 Linda Greenhouse, “Employers, in 9-0 Ruling by Justices, Extend Winning Streak in Disabilities Act Cases,” NYT
A-16 (June 11, 2002).
101 “Supreme Court Hostile to Disability Rights in the Workplace”
102 For more information, see CRS Report RL30008, Labor and Mandatory Arbitration Agreements: Background and
Discussion, by Jon O. Shimabukuro.
103 535 U.S. 391 (2002).
within the meaning of the ADA. The Court, in a majority opinion by Justice Breyer, observed that
a seniority system, “provides important employee benefits by creating, and fulfilling, employee
expectations of fair, uniform treatment” and that to require a “typical employer to show more than
the existence of a seniority system might undermine the employees’ expectations of consistent,
uniform treatment.” Thus, in most ADA cases, the existence of a seniority system would entitle an
employer to summary judgment in its favor. The Court found no language in the ADA which
would change this presumption if the seniority system was imposed by management and not by
collective bargaining. However, Justice Breyer found that there were some exceptions to this rule
for “special circumstances” and gave as examples situations where (1) the employer “fairly
frequently” changes the seniority system unilaterally, and thereby diminishes employee
expectations to the point where one more departure would “not likely make a difference” or (2)
the seniority system contains so many exceptions that one more exception is unlikely to matter.
Although the majority in Barnett garnered five votes, the Court’s views were splintered. There
were strong dissents and two concurring opinions. In her concurrence, Justice O’Connor stated
that she would prefer to say that the effect of a seniority system on the ADA depends on whether
the seniority system is legally enforceable but that since the result would be the same in most
cases as under the majority’s reasoning, she joined with the majority to prevent a stalemate. The
dissents took vigorous exception to the majority’s decision with Justice Scalia, joined by Justice
Thomas, arguing that the ADA does not permit any seniority system to be overridden. The dissent
by Justice Souter, joined by Justice Ginsberg, argued that nothing in the ADA insulated seniority
rules from a reasonable accommodation requirement and that the legislative history of the ADA
clearly indicated congressional intent that seniority systems be a factor in reasonable
accommodations determinations but not the major factor.
In Raytheon Co. v. Hernandez,104 the Supreme Court was presented with the issue of whether the
ADA confers preferential rehiring rights on employees who have been lawfully terminated for
misconduct, in this case illegal drug use. However, the Court, in an opinion by Justice Thomas,
did not reach this issue, finding that the ninth circuit had improperly applied a disparate impact
analysis in a disparate treatment case and remanding the case. The Court observed that it “has
consistently recognized a distinction between claims of discrimination based on disparate
treatment and claims of discrimination based on disparate impact.” Disparate treatment was
described as when an employer intentionally treats some people less favorably than others
because of a protected characteristic such as race and liability depends on whether the protected
trait actually motivated the employer’s decision. Disparate impact, in contrast, involves practices
that are facially neutral but in fact impact a protected group more harshly and cannot be justified
by business necessity. Disparate impact cases do not require evidence of an employer’s subjective 105
104 540 U.S. 44 (2003).
105 Upon review, the Ninth Circuit Court of Appeals reversed and remanded the district court’s grant of the employer’s
motion for summary judgment. Hernandez v. Hughes Missile Systems Co., 362 F.3d 564 (9th Cir. 2004).
Before an offer of employment is made, an employer may not ask a disability related question or 106
require a medical examination. The EEOC in its guidance on this issue stated that the rationale
for this exclusion was to isolate an employer’s consideration of an applicant’s non-medical 107
qualifications from any consideration of the applicant’s medical condition. Once an offer is
made, disability related questions and medical examinations are permitted as long as all
individuals who have been offered a job in that category are asked the same questions and given 108
the same examinations. It is not always clear exactly what is a medical test. In Karraker v. 109
Rent-a-Center, Inc., the seventh circuit examined the issue of whether an employer’s use of the
Minnesota Multiphasic Personality Inventory (MMPI) in order to obtain a promotion violated the
ADA. The MMPI contains questions such as “I commonly hear voices without knowing where
they are coming from” and “I see things or animals or people around me that others do not see.”
The court found that, even though the test was not interpreted by a psychologist, the MMPI was a
medical test since it was designed in part to reveal mental illness.
The events of September 11, 2001 raised questions concerning whether an employer may ask
employees whether they will require assistance in the event of an evacuation because of a
disability or medical condition. The EEOC issued a fact sheet stating that employers are allowed
to ask employees to self-identify if they will require assistance because of a disability or medical
conditions and providing details on how the employer may identify individuals who may require 110
The ADA specifically lists defenses to a charge of discrimination, including (1) that the alleged
application of qualification standards has been shown to be job related and consistent with
business necessity and such performance cannot be accomplished by reasonable accommodation;
(2) that the term “qualification standards” can include a requirement that an individual shall not 111
pose a direct threat to the health or safety of other individuals in the workplace; (3) that a
covered entity may not use qualification standards, employment tests, or other selection criteria
based on an individual’s uncorrected vision unless the standard, test or selection criteria is shown 112
to be job-related for the position in question and consistent with business necessity; and (4) that
religious entities may give a preference in employment to individuals of a particular religion to
106 42 U.S.C. §12112.
107 EEOC, “ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations,”
October 10, 1995.
109 411 F.3d 831 (7th Cir. 2005). For a more detailed discussion of this case see Maureen E. Mulvihill, “Karraker v.
Rent-a-Center: Testing the Limits of the ADA, Personality Tests, and Employer Preemployment Screening,” 37 LOY.
U. CHI. L. J. 865 (2006).
110 http://www.eeoc.gov/facts/evacuation.html. For a detailed discussion of emergency procedures for employees with
disabilities see Federal Emergency Management Agency, “Emergency Procedures for Employees with Disabilities in
Office Occupancies.” http://www.securitymanagement.com/library/disable.html.
111 The EEOC in its regulations states that the following factors should be considered when determining whether an
individual poses a direct threat: the duration of the risk, the nature and severity of the potential harm, the likelihood that
the potential harm will occur, and the imminence of the potential harm. 29 C.F.R. § 1630.2(r).
112 This provision was added by P.L. 110-325, §5.
perform work connected with carrying on the entities’ activities.113 In addition, religious entities
may require that all applicants and employees conform to the religious tenets of the organization. 114
The Secretary of Health and Human Services has, pursuant to a statutory requirement, listed
infectious diseases transmitted through the handling of food; and if the risk cannot be eliminated
by reasonable accommodation, a covered entity may refuse to assign or continue to assign an 115
individual with such a disease to a job involving food handling.
A controversial issue that arose during the enactment of the ADA regarding employment
concerned the application of the act to drug addicts and alcoholics. The ADA provides that, with
regard to employment, current illegal drug users are not considered to be qualified individuals
with disabilities. However, former drug users and alcoholics would be covered by the act if they
are able to perform the essential functions of the job. Exactly what is “current” use of illegal
drugs has been the subject of some discussion. The EEOC has defined current to mean that the
illegal drug use occurred “recently enough” to justify an employer’s reasonable belief that drug 116
use is an ongoing problem. The courts that have examined this issue have generally found that
to be covered by the ADA, the individual must be free of drugs for a considerable period of time, 117
certainly longer than weeks.
In the appendix to its regulations, EEOC further notes that “an employer, such as a law
enforcement agency, may also be able to impose a qualification standard that excludes individuals
with a history of illegal use of drugs if it can show that the standard is job-related and consistent 118
with business necessity.” Title I of the ADA also provides that a covered entity may prohibit the 119
illegal use of drugs and the use of alcohol in the workplace. Similarly, employers may hold all
employees, regardless of whether or not they have a disability, to the same performance and 120
conduct standards. However, if the misconduct results from a disability, the employer must be 121
able to demonstrate that the rule is job-related and consistent with business necessity.
The remedies and procedures set forth in Sections 705, 706, 707, 709, and 710 of the Civil Rights 122
Act of 1964, are incorporated by reference. This provides for certain administrative
enforcement as well as allowing for individual suits. The Civil Rights Act of 1991, P.L. 102-166,
expanded the remedies of injunctive relief and back pay. A plaintiff who was the subject of
113 42 U.S.C. § 12113.
115 62 F.R. 49518 (September 22, 1997).
116 29 C.F.R. Appendix §1630.3.
117 See e.g., Shafer v. Preston Memorial Hospital Corp., 107 F.3d 274 (4th Cir. 1997)(individual is a current user if he
or she has illegally used drugs “in a periodic fashion during the weeks and months prior to discharge.”)
118 29 C.F.R. Appendix §1630.3.
119 42 U.S.C. §12114(c); 29 C.F.R. §1630.16(b)(4).
120 EEOC Compliance Manual §902.2(c)(4). See also Hamilton v. Southwestern Bell Telephone Co., 136 F.3d 1047 (5th
Cir. 1998)(“the ADA does not insulate emotional or violent outbursts blamed on an impairment”).
121 EEOC Enforcement Guidance on the ADA and Psychiatric Disabilities, No. 915.002, p. 29 (March 25, 1997).
122 42 U.S.C. §§2000e-4, 2000e-5, 2000e-6, 2000e-8, 2000e-9.
unlawful intentional discrimination (as opposed to an employment practice that is discriminatory
because of its disparate impact) may recover compensatory and punitive damages. In order to
receive punitive damages, the plaintiff must show that there was a discriminatory practice
engaged in with malice or with reckless indifference to the rights of the aggrieved individuals.
The amount that can be awarded in punitive and compensatory damages is capped, with the 123
amounts varying from $50,000 to $300,000 depending upon the size of the business. Similarly,
there is also a “good faith” exception to the award of damages with regard to reasonable
It should also be noted that the Supreme Court addressed the issue of punitive damages in a Title 124
VII sex discrimination case, Kolstad v. American Dental Association. The Court held in
Kolstad that plaintiffs are not required to prove egregious conduct to be awarded punitive
damages; however, the effect of this holding is limited by the Court’s determination that certain
steps taken by an employer may immunize them from punitive damages. Since the ADA
incorporates the Title VII provisions, the holding in Kolstad may be applicable to ADA 125
employment cases as well.
In Equal Employment Opportunity Commission v. Wal-mart Stores, Inc.,126 the tenth circuit
applied Kolstad and affirmed an award of punitive damages under the ADA. This case involved a
hearing impaired employee of Wal-mart who sometimes required the assistance of an interpreter.
After being employed for about two years in the receiving department, the employee was required
to attend a training session but left when the video tape shown was not close captioned and no
interpreter was provided. After refusing to attend in the absence of an interpreter, the employee
was transferred to the maintenance department to perform janitorial duties. When he questioned
the transfer and asked for an interpreter, he was again denied. After threatening to file a complaint
with the EEOC, the employee was suspended and later terminated from employment. He then
sued and won compensatory damages and $75,000 in punitive damages. On appeal, the tenth
circuit examined the reasoning in Kolstad and concluded that the record in Wal-mart “is sufficient
to resolve the questions of intent and agency laid out in Kolstad.” With regard to intent, the court
reiterated the facts and further noted that the store manager, who ultimately approved the
employee’s suspension, had testified that he was familiar with the ADA and its provisions
regarding accommodation, discrimination and retaliation. This was seen as sufficient for a
reasonable jury to conclude that Wal-mart intentionally discriminated. Wal-mart had also made an
agency argument, stating that liability for punitive damages was improper because the employees
who discriminated against the employee did not occupy positions of managerial control. Looking
again to the reasoning in Kolstad, the tenth circuit noted that the Wal-mart employees had
authority regarding hiring and firing decisions and observed that such authority is an indicium of
supervisory or managerial capacity.
123 In Gagliardo v. Connaught Laboratories, 311 F.3d 565 (3d Cir. 2002), an employee who claimed that she was
discriminated against due to her multiple sclerosis won an award of $2.3 million despite the ADA caps. The court
found that the judge had properly proportioned the claims between the federal and state causes of action and found that
the fact that the state law did not contain a cap indicated that it was intended to provide a remedy beyond the federal
124 527 U.S. 526 (1999).
125 But see Barnes v. Gorman, 536 U.S. 181 (2002), where the Supreme Court held that punitive damages may not be
awarded under Section 202 of the ADA.
126 187 F.3d 1241 (10th Cir. 1999).
Title II of the ADA provides that no qualified individual with a disability shall be excluded from
participation in or be denied the benefits of the services, programs, or activities of a public entity 127
or be subjected to discrimination by any such entity. “Public entity” is defined as state and local
governments, any department or other instrumentality of a state or local government and certain
transportation authorities. The ADA does not apply to the executive branch of the federal
government; the executive branch and the U.S. Postal Service are covered by Section 504 of the 128
Rehabilitation Act of 1973.
The Department of Justice regulations for Title II contain a specific section on program
accessibility. Each service, program, or activity conducted by a public entity, when viewed in its
entirety, must be readily accessible to and usable by individuals with disabilities. However, a 129
public entity is not required to make each of its existing facilities accessible. Program
accessibility is limited in certain situations involving historic preservation. In addition, in meeting
the program accessibility requirement, a public entity is not required to take any action that would
result in a fundamental alteration in the nature of its service, program, or activity or in undue 130
financial and administrative burdens. The Department of Justice has proposed new regulations 131
for both Titles II and III of the ADA. The proposed regulations include a “safe harbor”
provision, detailed requirements regarding service animals, and requirements regarding power-
driven mobility devices. The proposed Title II regulations have provisions on program
accessibility, including play areas and swimming pools.
Title II of the ADA would also apply to state and local government emergency preparedness and
response programs. The Department of Justice has issued an ADA guide for local governments,
noting that “one of the most important roles of local government is to protect their citizenry from
harm, including helping people prepare for and respond to emergencies. Making local
government emergency preparedness and response programs accessible to people with disabilities
is critical part of this responsibility. Making these programs accessible is also required by the 132
127 42 U.S.C. §§12131-12133.
128 29 U.S.C. §794.
129 28 C.F.R. §35.150.
130 Id. The Department of Justice provided a document containing examples of common ADA compliance problems by
city governments that have been identified through the Department of Justice’s ongoing enforcement efforts. See
131 73 FED. REG. 34466, 34508 (June 17, 2008). For a more detailed discussion of these proposed regulations see CRS
Report RS22930, The Americans with Disabilities Act (ADA) Proposed Regulations, by Nancy Lee Jones.
132 http://www.usdoj.gov/crt/ada/emergencyprep.htm For a more detailed discussion of these issues, see CRS Report
RS22254, The Americans with Disabilities Act and Emergency Preparedness and Response, by Nancy Lee Jones.
Although Title II has not been the subject of as much litigation as Title I, several of the ADA
cases to reach the Supreme Court have involved Title II. The most significant of these to date is 133
Tennessee v. Lane. In Lane, which was discussed previously under the application of the
eleventh amendment section, the Supreme Court held that Title II of the ADA, as it applies to the
fundamental right of access to the courts, constitutes a valid exercise of congressional authority
under Section 5 of the Fourteenth Amendment. In addition, as discussed previously regarding the 134
Eleventh Amendment, the Supreme Court in United States v. Georgia., held that Title II of the
ADA created a private cause of action for damages against the states for conduct that actually
violates the Fourteenth Amendment.
In the first ADA case to reach the Supreme Court, Pennsylvania Department of Corrections v.
Yeskey, supra, the Court found in a unanimous decision that state prisons “fall squarely within the
statutory definition of ‘public entity’” for Title II. Yeskey involved a prisoner who was sentenced
to 18 to 36 months in a Pennsylvania correctional facility but was recommended for placement in
a motivational boot camp for first time offenders. If the boot camp was successfully completed,
the prisoner would have been eligible for parole in six months. The prisoner was denied
admission to the program due to his medical history of hypertension and sued under the ADA.
The state argued that state prisoners were not covered under the ADA since such coverage would
“alter the usual constitutional balance between the States and the Federal Government.” The
Supreme Court rejected this argument, observing that “the ADA plainly covers state institutions
without any exception that could cast the coverage of prisons into doubt.” The Court noted that
prisoners receive many services, including medical services, educational and vocational programs
and recreational activities so that the ADA language applying the “benefits of the services, 135
programs, or activities of a public entity” is applicable to state prisons. However, the Court in
Yeskey did not address the constitutional issues.
In Olmstead v. Georgia, supra, the Supreme Court examined issues raised by state mental health
institutions and held that Title II of the ADA requires states to place individuals with mental
disabilities in community settings rather than institutions when the State’s treatment professionals
have determined that community placement is appropriate, community placement is not opposed 136
by the individual with a disability, and the placement can be reasonably accommodated.
“Unjustified isolation ... is properly regarded as discrimination based on disability.” The
Olmstead case had been closely watched by both disability groups and state governments.
Although disability groups have applauded the holding that undue institutionalization qualifies as
discrimination by reason of disability, the Supreme Court did place certain limitations on this
right. In addition to the agreement of the individual affected, the Court also dealt with the issue of
what is a reasonable modification of an existing program and stated: “Sensibly construed, the
fundamental-alteration component of the reasonable-modifications regulation would allow the
133 541 U.S. 509 (2004).
134 546 U.S. 151 (2006).
135 The Supreme Court had remanded this case for consideration of whether Yeskey was an individual with a disability.
On remand, the district court held that he was not covered by the ADA since he was not substantially limited in a major
life activity. Yeskey v. Pennsylvania Department of Corrections, 76 F.Supp. 2d 572 (M.D. Pa.1999).
136 Olmstead has focused federal and state attention on the development of policies that would expand home and
community-based care for individuals with disabilities. For a discussion of these policy issues and legislation, see CRS th
Report RS20992, Long Term Care: 107 Congress Legislation, by Carol O’Shaughnessy and Bob Lyke.
State to show that, in the allocation of available resources, immediate relief for the plaintiffs
would be inequitable, given the responsibility the State has undertaken for the care and treatment
of a large and diverse population of persons with mental disabilities.” This examination of what
constitutes a reasonable modification may have implications for the interpretation of similar 137
concepts in the employment and public accommodations Titles of the ADA.
Courts have examined various other issues regarding compliance with Title II. For example, in
Crowder v. Kitagawa, a Hawaii regulation requiring the quarantine of all dogs, including guide 138
dogs for visually impaired individuals, was found to violate Title II. Other Title II cases have 139
involved whether curb ramps are required, the application of Title II to a city ordinance 140141
allowing open burning, and the application of the ADA to a city’s zoning ordinances.
Title II also provides specific requirements for public transportation by intercity and commuter 142
rail and for public transportation other than by aircraft or certain rail operations. All new
vehicles purchased or leased by a public entity that operates a fixed route system must be
accessible, and good faith efforts must be demonstrated with regard to the purchase or lease of
accessible use vehicles. Retrofitting of existing buses is not required. Paratransit services must be
provided by a public entity that operates a fixed route service, other than one providing solely 143
commuter bus service. Rail systems must have at least one car per train that is accessible to 144
individuals with disabilities.
137 See also Frederick L., Nina S., Kevin C. And Steven F. v. Department of Public Welfare, 422 F.3d 151 (3d Cir.
2005), where the court found that Pennsylvania’s Department of Public Welfare was obligated to integrate eligible
patients into local community-based settings and was required to articulate a commitment to this requirement in a
specific comprehensive, effectively working, plan before it could utilize a “fundamental alteration” defense.
138 Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996). The court stated: “Although Hawaii’s quarantine requirement
applies equally to all persons entering the state with a dog, its enforcement burdens visually-impaired persons in a
manner different and greater than it burdens others. Because of the unique dependence upon guide dogs among many
of the visually-impaired, Hawaii’s quarantine effectively denies these persons ... meaningful access to state services,
programs, and activities while such services, programs, and activities remain open and easily accessible by others.”
139 In Kinney v. Yerusalim, 812 F.Supp. 547 (E.D. Pa. 1993), aff’d 9 F.3d 1067 (3d Cir. 1993), cert. den., 511 U.S. 1033
(1994), the court found that street repair projects must include curb ramps for individuals with disabilities. Similarly, th
see Ability Center of Greater Toledo v. Lechner, 385 F.3d 901 (6 Cir. 2004), where the court held that Title II “does
not merely prohibit intentional discrimination. It also imposes on public entities the requirement that they provide
qualified disabled individuals with meaningful access to public services, which in certain instances necessitates that
public entities take affirmative steps to remove architectural barriers to such access in the process of altering existing th
facilities.” At 912. See also Barden v. Sacramento,292 F.3d 1073 (9 Cir. 2002), cert. denied, 539 U.S. 958 (2003). See
also 28 C.F.R. §35.151(e)(1), where the Department of Justice details the requirements for curb ramps.
140 Heather K. v. City of Mallard, Iowa, 946 F.Supp. 1373 (N.D.Iowa 1996).
141 Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37 (2d Cir. 1997).
142 42 U.S.C. §§12141-12165. P.L. 104-287 added a new definition. The term “commuter rail transportation” has the
meaning given the term “commuter rail passenger transportation” in 45 U.S.C. §502(9).
143 42 U.S.C. §12143.
144 42 U.S.C. §12162.
Draft guidelines have been published by the Architectural and Transportation Barriers 145
Compliance Board (Access Board) regarding the accessibility of public rights-of-way. The
purpose of the draft guidelines is to gather additional information for the regulatory assessment
and the preparation of technical assistance materials to accompany a future rule. The Board will
issue a notice of proposed rulemaking at a future date and will solicit comments at that time, prior
to issuing a final rule.
The enforcement remedies of Section 505 of the Rehabilitation Act of 1973, 29 U.S.C. §794a, are 146
incorporated by reference. These remedies are similar to those of Title VI of the Civil Rights
Act of 1964, and include damages and injunctive relief. The Attorney General has promulgated 147
regulations relating to subpart A of the Title, and the Secretary of Transportation has issued 148
regulations regarding transportation.
The Supreme Court in Barnes v. Gorman149 held in a unanimous decision that punitive damages 150
may not be awarded under Section 202 of the ADA and Section 504 of the Rehabilitation Act 151
of 1973. Jeffrey Gorman uses a wheelchair and lacks voluntary control over his lower torso
which necessitates the use of a catheter attached to a urine bag. He was arrested in 1992 after
fighting with a bouncer at a nightclub and during his transport to the police station suffered
significant injuries due to the manner in which he was transported. He sued the Kansas City
police and was awarded over $1 million in compensatory damages and $1.2 million in punitive
damages. The eighth circuit court of appeals upheld the award of punitive damages but the
Supreme Court reversed. Although the Court was unanimous in the result, there were two
concurring opinions and the concurring opinion by Justice Stevens, joined by Justices Ginsburg
and Breyer, disagreed with the reasoning used in Justice Scalia’s opinion for the Court.
Justice Scalia observed that the remedies for violations of both Section 202 of the ADA and
Section 504 of the Rehabilitation Act are “coextensive with the remedies available in a private 152
cause of action brought under Title VI of the Civil Rights Act of 1964.” Neither Section 504
nor Title II of the ADA specifically mention punitive damages, rather they reference the remedies
of Title VI of the Civil Rights Act. Title VI is based on the congressional power under the 153
Spending Clause to place conditions on grants. Justice Scalia noted that Spending Clause
145 70 Fed. Reg. 70734 (November 23, 2005).
146 42 U.S.C. §12133.
147 28 C.F.R. Part 35.
148 49 C.F.R. Parts 27, 37, 38.
149 536 U.S. 181 (2002).
150 42 U.S.C. §12132. Section 203, 42 U.S.C. §12133, contains the enforcement provisions.
151 29 U.S.C. §794. Section 504 in relevant part prohibits discrimination against individuals with disabilities in any
program or activity that receives federal financial assistance. The requirements of Section 504, its regulations, and
judicial decisions were the model for the statutory language in the ADA where the nondiscrimination provisions are not
limited to entities that receive federal financial assistance.
152 42 U.S.C. §2000d et seq.
153 U.S. Const., Art. I §8, cl.1.
legislation is “much in the nature of a contract” and, in order to be a legitimate use of this power,
the recipient must voluntarily and knowingly accept the terms of the “contract.” “If Congress 154
intends to impose a condition on the grant of federal moneys, it must do so unambiguously.”
This contract law analogy was also found to be applicable to determining the scope of the
damages remedies and, since punitive damages are generally not found to be available for a
breach of contract, Justice Scalia found that they were not available under Title VI, Section 504 or
Title III provides that no individual shall be discriminated against on the basis of disability in the
full and equal enjoyment of the goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation by any person who owns, leases (or 155
leases to), or operates a place of public accommodation. Entities that are covered by the term
“public accommodation” are listed, and include, among others, hotels, restaurants, theaters,
auditoriums, laundromats, museums, parks, zoos, private schools, day care centers, professional 156
offices of health care providers, and gymnasiums. Religious institutions or entities controlled
by religious institutions are not included on the list.
There are some limitations on the nondiscrimination requirements, and a failure to remove 157
architectural barriers is not a violation unless such a removal is “readily achievable.” “Readily
achievable” is defined as meaning “easily accomplishable and able to be carried out without 158
much difficulty or expense.” Reasonable modifications in practices, policies or procedures are
required unless they would fundamentally alter the nature of the goods, services, facilities, or 159
privileges or they would result in an undue burden. An undue burden is defined as an action 160
involving “significant difficulty or expense.”
Title III contains a specific exemption for religious entities.161 This applies when an entity is
controlled by a religious entity. For example, a preschool that is run by a religious entity would
not be covered under the ADA; however a preschool that is not run by a religious entity but that
rents space from the religious entity, would be covered by Title III.
Similarly, Title III does not apply to private clubs or establishments exempted from coverage 162163
under Title II of the Civil Rights Act of 1964. In interpreting this provision, the Department
154 Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17 (1981).
155 42 U.S.C. §12182.
156 42 U.S.C. §12181.
157 42 U.S.C. §12182(b)(2)(A)(iv).
158 42 U.S.C. §12181.
159 42 U.S.C. §12182(b)(2)(A).
160 28 C.F.R. §36.104.
161 42 U.S.C. §12187.
162 42 U.S.C. §2000a-3(a).
163 42 U.S.C. 12187.
of Justice has noted that courts have been most inclined to find private club status in cases where
(1) members exercise a high degree of control over club operations, (2) the membership selection
process is highly selective, (3) substantial membership fees are charged, (4) the entity is operated
on a nonprofit basis, and (5) the club was not founded specifically to avoid compliance with
federal civil rights law. Facilities of a private club lose their exemption, however, to the extent 164
that they are made available for use by nonmembers as places of public accommodation.
Title III also contains provisions relating to the prohibition of discrimination in public
transportation services provided by private entities. Purchases of over-the-road buses are to be 165
made in accordance with regulations issued by the Secretary of Transportation.
The Department of Justice has proposed new regulations for both Titles II and III of the ADA.166
The proposed regulations include a “safe harbor” provision, detailed requirements regarding
service animals, and requirements regarding power-driven mobility devices. The proposed Title
III regulations have provisions on ticketing for accessible seating, play areas and swimming
pools, and communications. In addition, a new provision for examinations is added that specifies
that if any request for documentation is required, the requirement is to be “reasonable and limited 167
to the need for the modification or aid requested.” DOJ noted that this change was made to 168
eliminate inappropriate or burdensome requests by testing entities.
The nondiscrimination mandate of Title III does not require that an entity permit an individual to
participate in or benefit from the services of a public accommodation where such an individual 169
poses a direct threat to the health or safety of others. This issue was discussed by the Supreme
Court in Bragdon v. Abbott, supra, where the Court stated that “the existence, or nonexistence, of
a significant risk must be determined from the standpoint of the person who refuses the treatment
or accommodation, and the risk assessment must be based on medical or other objective
evidence.” Dr. Bragdon had the duty to assess the risk of infection “based on the objective,
scientific information available to him and others in his profession. His belief that a significant
risk existed, even if maintained in good faith, would not relieve him from liability.” The Supreme
Court remanded the case for further consideration of the direct threat issue. On remand, the first
circuit court of appeals held that summary judgment was warranted finding that Dr. Bragdon’s 170
evidence was too speculative or too tangential to create a genuine issue of fact.
164 Department of Justice, “ADA Title III Technical Assistance Manual” III-1.6000.
165 42 U.S.C. §12184. This section was amended by P.L. 104-59 to provide that accessibility requirements for private
over-the-road buses must be met by small providers within three years after the issuance of final regulations and with
respect to other providers, within two years after the issuance of such regulations.
166 73 FED. REG. 34466, 34508 (June 17, 2008). For a more detailed discussion of these proposed regulations see CRS
Report RS22930, The Americans with Disabilities Act (ADA) Proposed Regulations, by Nancy Lee Jones.
167 Proposed 28 C.F.R. §36.309.
168 73 FED. REG. 34539 (June 17, 2008).
169 For a more detailed discussion of this issue, see CRS Report RS22219, The Americans with Disabilities Act (ADA)
Coverage of Contagious Diseases, by Nancy Lee Jones.
170 Abbott v. Bragdon, 163 F.3d 87 (1st Cir. 1998), cert. den., 526 U.S. 1131(1999).
The Supreme Court declined to review a fourth circuit court of appeals decision regarding the 171
direct threat exception to Title III. In Montalvo v. Radcliffe, the fourth circuit held that
excluding a child who has HIV from karate classes did not violate the ADA because the child
posed a significant risk to the health and safety of others which could not be eliminated by
In Martin v. PGA Tour, the Supreme Court in a 7-2 decision by Justice Stevens held that the
ADA’s requirements for equal access gave a golfer with a mobility impairment the right to use a 172
golf cart in professional competitions. The ninth circuit had ruled that the use of the cart was 173
permissible since it did not “fundamentally alter” the nature of the competition.
Title III of the ADA defines the term “public accommodation,” specifically listing golf courses.174
The majority opinion looked at this definition and the general intent of the ADA to find that golf
tours and their qualifying rounds “fit comfortably within the coverage of Title III.” The Court
then discussed whether there was a violation of the substantive nondiscrimination provision of
Title III. The ADA states that discrimination includes “a failure to make reasonable modifications
in policies, practices, or procedures, when such modifications are necessary to afford such goods,
services, facilities, privileges, advantages, or accommodations to individuals with disabilities,
unless the entity can demonstrate that making such modifications would fundamentally alter the 175
nature of such goods, services, facilities, privileges, advantages, or accommodations.”
In theory, the Court opined, there might be a fundamental alteration of a golf tournament in two
ways: (1) an alteration in an essential aspect of the game, such as changing the diameter of the
hole, might be unacceptable even if it affected all players equally, or (2) a less significant change
that has only a peripheral impact on the game might give a golfer with a disability an advantage
171 167 F.3d 873 (4th Cir. 1999), cert. denied, 528 U.S. 813 (1999).
172 532 U.S. 661 (2001).
173 204 F.3d 994 (9th Cir. 2000).
174 42 U.S.C. §12181(7).
175 42 U.S.C. §12182(b)(2)(A)(ii)(emphasis added). The Department of Justice regulations echo the statutory language
and provide the following illustration. “A health care provider may refer an individual with a disability to another
provider if that individual is seeking, or requires, treatment or services outside of the referring provider’s area of
specialization, and if the referring provider would make a similar referral for an individual without a disability who
seeks or requires the same treatment or services.” 28 C.F.R. §36.302. The concept of fundamental alteration did not
originate in the statutory language of the ADA but was derived from Supreme Court interpretation of Section 504 of
the Rehabilitation Act of 1973, 29 U.S.C. §794, which, in part, prohibits discrimination against an individual with a
disability in any program or activity that receives federal financial assistance and was the model on which the ADA
was based. In Southeastern Community College v. Davis, 442 U.S. 397 (1979), the Supreme Court addressed a suit by a
hearing impaired woman who wished to attend a college nursing program. The college rejected her application because
it believed her hearing disability made it impossible for her to participate safely in the normal clinical training program
and to provide safe patient care. The Supreme Court found no violation of Section 504 and held that it did “not
encompass the kind of curricular changes that would be necessary to accommodate respondent in the nursing program.”
Since Davis could not function in clinical courses without close supervision, the Court noted that the college would
have had to limit her to academic courses. The Court further observed that “whatever benefits respondent might realize
from such a course of study, she would not receive even a rough equivalent of the training a nursing program normally
gives. Such a fundamental alteration in the nature of a program is far more than the ‘modification’ the regulation
requires.” (At 409-410) In conclusion, the Court found that “nothing in the language or history of § 504 reflects an
intention to limit the freedom of an educational institution to require reasonable physical qualifications for admission to
a clinical training program.” (At 414).
over others and therefore fundamentally alter the rules of competition. Looking at both these
types of situations, Justice Stevens found that a waiver of the walking rule for Casey Martin did
not amount to a fundamental alteration. He noted that the essence of the game was shot-making
and that the walking rule was not an indispensable feature of tournament golf as golf carts are
allowed on the Senior PGA Tour as well as certain qualifying events. In addition, Justice Stevens
found that the fatigue from walking the approximately five miles over five hours was not
significant. Regarding the question of whether allowing Casey Martin to use a cart would give
him an advantage, the majority observed that an individualized inquiry must be made concerning
whether a specific modification for a particular person’s disability would be reasonable under the
circumstances and yet not be a fundamental alteration. In examining the situation presented, the
majority found that Casey Martin endured greater fatigue even with a cart than other contenders
do by walking.
Justice Scalia, joined by Justice Thomas, wrote a scathing dissent describing the majority’s
opinion as distorting the text of Title III, the structure of the ADA and common sense. The
dissenters contended that Title III of the ADA applies only to particular places and persons and
does not extend to golf tournaments. The dissent also contended that “the rules are the rules,” that
they are by nature arbitrary, and there is no basis for determining any of them “non-essential.”
The Supreme Court in Spector v. Norwegian Cruise Line, Ltd. held in a decision written by
Justice Kennedy that the ADA applies to companies that operate foreign cruise ships in U.S. 176
waters. Prior to this decision there had been a split in the circuits with the eleventh circuit 177
holding in Stevens v. Premier Cruises Inc. that Title III of the ADA does apply to foreign cruise 178
ships and the fifth circuit in Spector v. Norwegian Cruise Lines holding that the ADA would
not be applicable since applicability would impose U.S. law on foreign nations. The Supreme
Court’s decision specifically held that the statute is applicable to foreign ships in the United
States waters to the same extent that it is applicable to American ships in those waters. The
majority concurred that cruise ships need not comply with the ADA if modifications would
conflict with international legal obligations since the ADA only requires “readily achievable”
accommodations. The 5-4 decision, however, was fragmented with various Justices joining for
various aspects of the opinion. It is difficult, therefore, to determine exactly what type of
accommodations would be required by the application of the ADA. Since the case below had
been dismissed without a trial, it was remanded to determine the statutory requirements in this
particular situation. The question of whether Title III requires any permanent and significant
structural modifications that interfere with the international affairs of any cruise ship, foreign flag
or domestic, was specifically left undecided. Justice Scalia, in his dissenting opinion, argued that
the ADA should not be interpreted to apply in the absence of a clear statement from Congress.
176 545 U.S. 119 (2005).
177 215 F.3d 1237 (11th Cir. 2000), rehearing and rehearing en banc denied, 284 F.3d 1187 (11th Cir. 2002).
178 356 F.3d 641 (5th Cir. 2004).
Title III prohibits discrimination in the full and equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations of any place of public accommodation by any person 179
who owns, leases (or leases to), or operates a place of public accommodation. The statutory
language, which was enacted in 1990 prior to widespread internet use, does not specifically cover
internet sites. The question is, then, whether the statute can be interpreted to include internet 180
sites. One of the relevant issues in resolving this novel problem is whether a place of public
accommodation is limited to actual physical structures.
The courts have split on this issue with the first circuit in Carparts Distribution Center v.
Automotive Wholesalers Association of New England Inc. finding that public accommodations are
not limited to actual physical structures. The court reasoned that “to exclude this broad category
of businesses from the reach of Title III and limit the application of Title III to physical structures
which persons must enter to obtain goods and services would run afoul of the purposes of the 181182
ADA.” The seventh circuit in Doe v. Mutual of Omaha Insurance Company agreed with the
first circuit. In Doe Judge Posner discussed the nondiscrimination requirements of Title III in the
context of a case involving a cap on insurance policies for AIDS and AIDS related complications
and found that “[t]he core meaning of this provision, plainly enough, is that the owner or operator
of a store, hotel, restaurant, dentist’s office, travel agency, theater, website, or other facility
(whether in physical space or in electronic space) ... that is open to the public cannot exclude
disabled persons from entering the facility and, once in, from using the facility in the same way 183
that the nondisabled do.” The court reasoned that “the owner or operator of, say, a camera store
can neither bar the door to the disabled nor let them in but then refuse to sell its cameras to them 184
on the same terms as to other customers.” However, Judge Posner found no violation of the
ADA in this case and concluded that “Section 302(a) does not require a seller to alter his product 185
to make it equally valuable to the disabled and nondisabled.... ”
The second circuit joined the first and seventh circuits in finding that the ADA is not limited to 186
physical access. The court in Pallozzi v. Allstate Life Insurance Co., stated that “Title III’s
mandate that the disabled be accorded ‘full and equal enjoyment of goods, [and] services ... of
any place of public accommodation,’ suggests to us that the statute was meant to guarantee them
more than mere physical access.”
On the other hand, the third, sixth, and ninth circuits apparently restrict the concept of public 187
accommodations to physical places. In Stoutenborough v. National Football League, Inc., the
sixth circuit dealt with a case brought by an association of individuals with hearing impairments
179 42 U.S.C. §12182.
180 For a more detailed discussion of this issue see Richard E. Moberly, “The Americans with Disabilities Act in
Cyberspace: Applying the ‘Nexus’ Approach to Private Internet Websites,” 55 Mercer L. Rev. 963 (2004).
181 Carparts Distribution Center, Inc. v. Automotive Wholesalers’ Association of New England, Inc., 37 F.3d 12 (1st
182 179 F.3d 557 (7th Cir. 1999), cert. denied, 528 U.S. 1106 (2000).
183 Id. at 559 (emphasis added.)
185 Id. at 563.
186 198 F.3d 28 (2d Cir. 1999).
187 59 F.3d 580 (6th Cir. 1995), cert. denied, 516 U.S. 1028 (1995).
who filed suit against the National Football League (NFL) and several television stations under
Title III alleging that the NFL’s blackout rule discriminated against them since they had no other
way of accessing football games when live telecasts are prohibited. The sixth circuit rejected this
allegation holding that the prohibitions of Title III are restricted to places of public 188
accommodations. Similarly, in Parker v. Metropolitan Life Insurance Co., the sixth circuit held
that the ADA’s nondiscrimination prohibition relating to public accommodations did not prohibit
an employer from providing employees a disability plan that provided longer benefits for
employees disabled by physical illness than those disabled by mental illness. In arriving at this
holding, the sixth circuit found that “a benefit plan offered by an employer is not a good offered 189
by a place of public accommodation.... A public accommodation is a physical place.”
The precise issue of the ADA’s application to the internet arose in Access Now, Inc., v. Southwest 190
Airlines, Co., where the court held that Southwest Airlines website was not a “place of public
accommodation” and therefore was not covered by the ADA. The district court examined the
ADA’s statutory language, noting that all of the listed categories were concrete places, and that to
expand the ADA to cover “virtual” spaces would be to create new rights.
Previously, on November 2, 1999, the National Federation of the Blind (NFB) filed a complaint
against America Online (AOL) in federal district court alleging that AOL violated Title III of the
ADA. NFB and other blind plaintiffs stated that they could only independently use computers by
concurrently running screen access software programs for the blind that convert visual
information into synthesized speech or braille. They alleged that AOL had designed its service so
that it is incompatible with screen access software programs for the blind, failing “to remove
communications barriers presented by its designs thus denying the blind independent access to 191
this service, in violation of Title III of the ADA, 42 U.S.C. §12181, et seq.” The case was 192
settled on July 26, 2000.
A company’s website was at issue in National Federation of the Blind v. Target Corporation,193
where the district court denied the corporation’s motion to dismiss to the extent it alleged that the
inaccessibility of the retailer’s website impeded the full and equal enjoyment of goods and
services offered in the retailer’s stores. The motion to dismiss was granted in part concerning the
aspects of the website that offered information and services unconnected to the retailer’s store.
The court noted that the purpose of the ADA was “broader than mere physical access” and that
“[t]o the extent defendant argues that plaintiffs’ claims are not cognizable because they occur
away from a ‘place’ of public accommodation, defendant’s argument must fail.”
188 121 F.3d 1006 (6th Cir. 1997), cert. denied, 522 U.S. 1084 (1998).
189 Id. At 1010. See also, Lenox v. Healthwise of Kentucky, 149 F.3d 453 (6th Cir. 1999).
190 227 F.Supp.2d 1312 (S.D. Fla. 2002), appeal dismissed, 385 F.3d 1324 (11th Cir. 2004).
191 National Federation of the Blind v. America Online, Complaint, http://www.nfb.org/Images/nfb/Publications/bm/
bm99/brlm9912.htm (November 2, 1999).
192 The settlement agreement can be found at the National Federation of the Blind website, http://www.nfb.org.
193 452 F.Supp.2d 946 (N.D. Calif. 2006). For a more detailed discussion of this case see Isabel Arana DuPree,
“Websites as ‘Places of Public Accommodation’: Amending the Americans with Disabilities Act in the Wake of
National Federal of the Blind v. Target Corporation,” NC J. L. & Tech. 273 (2007); Jeffrey Bashaw, “Applying the
Americans with Disabilities Act to Private Websites after National Federation of the Blind v. Target,” 4 Shidler J. L.
Com. & Tech 3 (2008).
The question of ADA coverage of internet sites will undoubtedly continue to be a closely watched 194
issue. It should be noted that this issue does not effect the requirement that federal government
websites be accessible since the federal requirement is contained in a separate statute, Section 508 195
of the Rehabilitation Act.
An issue which has prompted the introduction of bills in the last several Congresses involves the
filing of multiple law suits by an individual with a disability based on deminimus violations and 196
seeking money for a settlement. Although these cases are seldom tried in court, Molski v. 197
Mandarin Touch Restaurant did result in an opinion finding that the plaintiff was a vexatious
litigant who filed hundreds of law suits designed to harass and intimidate business owners into
agreeing to cash settlements. The district court ordered the plaintiff to obtain the leave of the
court prior to filing any other claims under the ADA. In a related suit, the California district court
also found against the counsel in the Molski case holding that the counsel was required to seek 198
leave of the court before filing any additional ADA claims. The exact effect of these decisions 199
is uncertain. In Molski v. Arby’s Huntington Beach, Mr. Molski again claimed that a restaurant
was inaccessible and discriminated against him under the ADA. The court issued an order to
show cause as to why the complaint should not be dismissed for lack of subject matter
jurisdiction in light of the previous ruling declaring the plaintiff a vexatious litigant. The court
discharged the show cause order finding that “[w]hile the filing of hundreds of lawsuits may
impact Mr. Molski’s credibility and the believability of his assertions that he intends to and will 200
return to Arby’s ..., this is not an issue to be evaluated at the pleading stage.”
In Ford v. Schering-Plough Corporation,201 the third circuit found a disparity in benefits for
physical and mental illnesses did not violate the ADA and found that the disability benefits at
issue did not fall within Title III. The court stated “This is in keeping with the host of examples of
194 For a more detailed discussion of the issue see The Association of the Bar of the City of New York, “Website
Accessibility for People with Disabilities,” 62 The Record 118 (2007); Steven Mendelsohn, and Martin Gould, “When
the Americans with Disabilities Act Goes Online: Application of the ADA to the Internet and the World Wide Web,” 7
Comp. L. Rev. & Tech. J. 173 (2004).
195 29 U.S.C. §794(d), as amended by P.L. 105-220. Section 508 requires that the electronic and information
technology used by federal agencies be accessible to individuals with disabilities, including employees and member of
the public. Generally, Section 508 requires each federal department or agency and the U.S. Postal Service to ensure that
individuals with disabilities who are federal employees have access to and use of electronic and information technology
that is comparable to that of individuals who do not have disabilities. For more detailed information see
196 See section on legislation infra. For a discussion of vexatious lawsuits see Wayne C. Arnold and Lisa D. Herzog,
“How Many Lawsuits Does It Take to Declare an ADA Plaintiff Vexatious?” 48 Orange County Lawyer 50 (July
197 347 F.Supp.2d 860 (C.D.Calif. 2004).
198 Molski v. Mandarin Touch Restaurant, 359 F.Supp.2d 924 (C.D.Calif. 2005).
199 359 F.Supp.2d 938 (C.D.Calif. 2005).
200 Id. at 948.
201 145 F.3d 601(3d Cir. 1998), cert. denied, 525 U.S. 1093 (1999).
public accommodations provided by the ADA, all of which refer to places.”202 This conclusion
was found to be in keeping with judicial decisions under Title II of the Civil Rights Act of 1964,
Another issue under Title III is whether franchisers are subject to the Title. In Nef v. American
Dairy Queen Corp., the fifth circuit court of appeals found that a franchiser with limited control 203
over the store a franchisee runs is not covered under Title III of the ADA.
The remedies and procedures of Title II of the Civil Rights Act of 1964 are incorporated in Title
III of the ADA. Title II of the Civil Rights Act has generally been interpreted to include injunctive
relief, not damages. In addition, state and local governments can apply to the Attorney General to
certify that state or local building codes meet or exceed the minimum accessibility requirements
of the ADA. The Attorney General may bring pattern or practice suits with a maximum civil
penalty of $50,000 for the first violation and $100,000 for a violation in a subsequent case. The
monetary damages sought by the Attorney General do not include punitive damages. Courts may
also consider an entity’s “good faith” efforts in considering the amount of the civil penalty.
Factors to be considered in determining good faith include whether an entity could have
reasonably anticipated the need for an appropriate type of auxiliary aid to accommodate the
unique needs of a particular individual with a disability. Regulations relating to public 204
accommodations have been promulgated by the Department of Justice and regulations relating
to the transportation provisions of Title III have been promulgated by the Department of 205
Title IV of the ADA amends Title II of the Communications Act of 1934206 by adding a section
providing that the Federal Communications Commission shall ensure that interstate and intrastate
telecommunications relay services are available, to the extent possible and in the most efficient
manner, to hearing impaired and speech impaired individuals. Any television public service
announcement that is produced or funded in whole or part by any agency or instrumentality of the
federal government shall include closed captioning of the verbal content of the announcement. 207
The FCC is given enforcement authority with certain exceptions.
202 Id. at 612.
203 58 F.3d 1063 (5th Cir. 1995), cert. den., 516 U.S. 1045 (1996).
204 28 C.F.R. Part 36.
205 49 C.F.R. Parts 27, 37, 38.
206 47 U.S.C. §§201 et seq.
207 47 U.S.C. §255. For an FCC discussion of closed captioning see http://www.fcc.gov/cgb/consumerfacts/
Title V contains an amalgam of provisions, several of which generated considerable controversy
during ADA debate. In addition, the ADA Amendments Act of 2008 contained some additions to
Section 501 concerns the relationship of the ADA to other statutes and bodies of law. Subpart (a)
states that “except as otherwise provided in this act, nothing in the act shall be construed to apply
a lesser standard than the standards applied under Title V of the Rehabilitation Act ... or the
regulations issued by Federal agencies pursuant to such Title.” Subpart (b) provides that nothing
in the act shall be construed to invalidate or limit the remedies, rights, and procedures of any
federal, state, or local law that provides greater or equal protection. Nothing in the act is to be
construed to preclude the prohibition of or restrictions on smoking. Subpart (d) provides that the
act does not require an individual with a disability to accept an accommodation which that 208
individual chooses not to accept.
Subpart (c) of Section 501 limits the application of the act with respect to the coverage of
insurance; however, the subsection may not be used as a subterfuge to evade the purposes of
Titles I and III. The exact parameters of insurance coverage under the ADA are somewhat
uncertain. As the EEOC has stated: “the interplay between the nondiscrimination principles of the
ADA and employer provided health insurance, which is predicated on the ability to make health-209
related distinctions, is both unique and complex.” The eighth circuit court of appeals in
Henderson v. Bodine Aluminum, Inc. issued a preliminary injunction compelling the plaintiff’s 210
employer to pay for chemotherapy that required an autologous bone marrow transplant. The
plaintiff was diagnosed with an aggressive form of breast cancer and her oncologist
recommended entry into a clinical trial that randomly assigns half of its participants to high dose
chemotherapy that necessitates an autologous bone marrow transplant. Because of the possibility
that the plaintiff might have the more expensive bone marrow treatment, the employer’s health
plan refused to precertify the placement noting that the policy covered high dose chemotherapy
only for certain types of cancer, not breast cancer. The court concluded that, “if the evidence
shows that a given treatment is non-experimental—that is, if it is widespread, safe, and a
significant improvement on traditional therapies—and the plan provides the treatment for other 211
conditions directly comparable to the one at issue, the denial of treatment violates the ADA.”
208 29 U.S.C. §§790 et seq.
209 EEOC, “Interim Policy Guidance on ADA and Health Insurance,” BNA’s Americans with Disabilities Act Manual
70:1051 (June 8, 1993). This guidance deals solely with the ADA implications of disability-based health insurance plan
distinctions and states that “insurance distinctions that are not based on disability, and that are applied equally to all
insured employees, do not discriminate on the basis of disability and so do not violate the ADA.”
210 70 F.3d 958 (8th Cir. 1995).
211 See also Rogers v. Department of Health and Environmental Control, 174 F.3d 431 (4th Cir. 1999), where the fourth
circuit court of appeals held that the ADA does not require employers to offer the same long-term disability insurance
benefits for mental and physical disabilities. For a more detailed discussion of the ADA and coverage of mental and
physical disabilities in insurance see Matthew G. Simon, “Not All Illnesses Are Treated Equally - Does a Disability
Benefits Plan Violate the ADA by Providing Less Generous Long-Term Benefits for Mentally Disabled Employees
than for Physically Disabled Employees?” 8 U. Pa. J. Lab. & Emp. L. 943 (Summer 2006).
The ADA Amendments Act made several additions to Section 501. The act states that the ADA
does not alter eligibility standards for benefits under state workers’ compensation laws or under
state or federal disability benefit programs. P.L. 110-325 also states that nothing in the act alters 212
the provision of Section 302(b)(2)(A)(ii), specifying that reasonable modifications in policies,
practices, or procedures shall be required, unless an entity can demonstrate that making such
modifications in policies, practices, or procedures, including academic requirements in
postsecondary education, would fundamentally alter the nature of the goods, services, facilities,
privileges, advantages, or accommodations involved. The Senate Statement of Managers notes
that this provision was added at the request of the higher education community and “is included
solely to provide assurances that the bill does not alter current law with regard to the obligations
of academic institutions under the ADA, which we believe is already demonstrated in case law on 213
this topic.” The Managers’ Statement also noted that this provision “is unrelated to the purpose 214
of this legislation and should be given no meaning in interpreting the definition of disability.”
The ADA Amendments Act specifically prohibits reverse discrimination claims and states that
nothing in the act shall provide the basis for a claim by a person without a disability that he or she
was subject to discrimination because of a lack of a disability. The rules of construction provide
that a covered entity under Title I, a public entity under Title II, or a person who operates a place
of public accommodation under Title III, need not provide a reasonable accommodation or a
reasonable modification to policies, practices, or procedures to an individual who meets the
definition of disability solely under the “regarded as” prong of the definition.
Section 502 abrogates the Eleventh Amendment state immunity from suit and was discussed
previously. Section 503 prohibits retaliation and coercion against an individual who has opposed
an act or practice made unlawful by the ADA. Section 504 requires the Architectural and
Transportation Barriers Compliance Board (ATBCB) to issue guidelines regarding accessibility.
Section 505 provides for attorneys’ fees in “any action or administrative proceeding” under the
act. Section 506, added by the ADA Amendments Act, states that “[t]he authority to issue
regulations granted to the Equal Employment Opportunity Commission, the Attorney General,
and the Secretary of Transportation under this Act, includes the authority to issue regulations
implementing the definitions contained in sections 3 and 4.” Section 507 provides for technical
assistance to help entities covered by the act in understanding their responsibilities. Section 508
provides for a study by the National Council on Disability regarding wilderness designations and
wilderness land management practices and “reaffirms” that nothing in the Wilderness Act is to be
construed as prohibiting the use of a wheelchair in a wilderness area by an individual whose
disability requires the use of a wheelchair. Section 514 provides that “where appropriate and to
the extent authorized by law, the use of alternative means of dispute resolution ... is encouraged.... 215
” Section 515 provides for severability of any provision of the act that is found to be
The coverage of Congress was a major controversy during the House-Senate conference on the
ADA. Although the original language of the ADA did provide for some coverage of the
legislative branch, Congress expanded upon this in the Congressional Accountability Act, P.L.
212 42 U.S.C. §12182(b)(2)(A)(ii).
213 153 CONG. REC. S. 8347 (Sept. 11, 2008)(Statement of Managers to Accompany S. 3406) the Americans with
Disabilities Act Amendments Act of 2008).
215 42 U.S.C. §12212.
those in the ADA applicable to the private sector.
Section 505 of the ADA provides for attorneys’ fees in “any action or administrative proceeding”
under the act. This section was the subject of a Supreme Court decision in Buckhannon Board 217
and Care Home, Inc., v. West Virginia Department of Human Resources. In Buckhannon, the
Supreme Court addressed the “catalyst theory” of attorneys’ fees which posits that a plaintiff is a
prevailing party if the lawsuit brings about a voluntary change in the defendant’s conduct. The
Court rejected this theory finding that attorneys’ fees are only available where there is a judicially
sanctioned change in the legal relationship of the parties.
Statutes providing for the award of attorneys’ fees allow courts to make the awards to the
“prevailing party.” The question presented in Buckhannon was whether the term “prevailing
party” includes a party who did not secure a judgment on the merits or a court-ordered consent
decree, but has nonetheless achieved the desired result because the lawsuit has brought about a
voluntary change in the defendant’s conduct. The Court, in an opinion by then Chief Justice 218
Rehnquist, examined the ADA and the Fair Housing Amendments Act (FHAA) and held that
the term “prevailing party” cannot be interpreted in this manner, thus rejecting the concept of a
“catalyst theory.” Four other members of the Court, Justices O’Connor, Scalia, Kennedy, and
Thomas joined with the Chief Justice while Justices Ginsburg, Stevens, Souter and Breyer
The Court first noted that in the United States parties are ordinarily required to bear their own
attorneys’ fees but that Congress has authorized the award of attorneys’ fees in numerous statutes
in addition to the ones at issue in Buckhannon. These fee-shifting provisions have been 219
interpreted in the same manner and the Court noted, citing to Hensley v. Eckerhart, that it
approached the attorneys’ fees provisions of the ADA and the FHAA in this manner.
Examining prior Supreme Court cases, Chief Justice Rehnquist found that a party receiving a
judgment on the merits would clearly have a basis on which attorneys’ fees might be awarded.
Similarly, the court found that settlement agreements enforced through a consent decree may
serve as the basis for an award of attorneys’ fees. The catalyst theory was seen as dissimilar from
these examples since “it allows an award where there is no judicially sanctioned change in the 220
legal relationship of the parties.” A voluntary change, even if it accomplished what the plaintiff 221
sought, the Court found, “lacks the necessary judicial imprimatur on the change.”
216 Congress has also applied the employment and public accommodation provisions of the ADA to the Executive
Office of the President. P.L. 104-331 (October 26, 1996).
217 532 U.S. 598 (2001).
218 42 U.S.C. §3613(c)(2).
219 461 U.S. 424 (1983).
220 532 U.S. 598, 605 (2001).
On July 26, 2007, the seventeenth anniversary of the enactment of the ADA, bills were introduced
in both the House and Senate to amend the ADA to broaden the definition of disability. The
Supreme Court’s interpretation of the definition of disability in various cases including Sutton v. 222223
United Air Lines, Inc., and Toyota Motor Manufacturing v. Williams, was strongly criticized 224thstth
as limiting the reach of the ADA. The bills, S. 1881, 110 Cong., 1 Sess., and H.R. 3195, 110 st
Cong., 1 Sess., responded to Supreme Court decisions which narrowly interpreted the class of
individuals who are protected by the ADA’s nondiscrimination provisions. In his introductory
remarks on S. 1881, Senator Harkin stated
In recent years, the courts have ignored Congress’s clear intent as to who should be protected
under the ADA. And the courts have narrowed the definition of who qualifies as an
“individual with a disability.” As a consequence, millions of people we intended to be
protected under the ADA, including people with epilepsy, diabetes, and cancer, are not 225
protected any more.
S. 1881, introduced by Senator Harkin, was referred to the Senate Health, Education, Labor, and 226
Pensions Committee and hearings were held on November 15, 2007. H.R. 3195, introduced by
Representative Hoyer, was referred to the House Committee on Education and Labor, as well as
the House Committees on Judiciary, Transportation and Infrastructure, and Energy and
Commerce for a period to be determined by the Speaker. Hearings were held by the
Subcommittee on the Constitution, Civil Rights, and Civil Liberties of the House Judiciary 227
Committee on October 4, 2007, and on January 29, 2008, by the House Education and Labor 228
Committee. On June 18, 2008, both the House Judiciary Committee and the House Education
and Labor Committee reported out H.R. 3195. H.R. 3195 as reported out of committee was 229
significantly different from H.R. 3195 and S. 1881 as introduced, and in acknowledgment of
these changes, the bill’s Title was changed from the ADA Restoration Act to the ADA
222 527 U.S. 471 (1999).
223 534 U.S. 184 (2004).
224 See National Council on Disability (NCD), “Righting the ADA,” http://www.ncd.gov/newsroom/publications/2004/
225 153 CONG. REC. S10151 (Daily ed. July 26, 2007).
226 “Restoring Congressional Intent and Protections under the Americans with Disabilities Act,” Before the Senate
Committee on Health, Education, Labor, and Pensions, November 15, 2007, http://help.senate.gov/Hearings/
227 Hearing on H.R. 3195, the ADA Restoration Act of 2007, Before the House Committee on the Judiciary,
Subcommittee on the Constitution, Civil Rights, and Civil Liberties, October 4, 2007, http://judiciary.house.gov/
228 “H.R. 3195: The ADA Restoration Act of 2007,” Before the House Committee on Education and Labor, January 29,
2008, http://edlabor.house.gov/hearings/ fc-2008-01-29.shtml.
229 The changes were a result of extensive negotiations between the business community and national disability
organizations. See discussions of this process at 153 CONG. REC. S. 8350 (Sept. 11, 2008)(Statement of Senator
Harkin); 153 CONG. REC. H. 8294 (September 17, 2008)(Statement of Representatives Hoyer and Sensenbrenner).
Amendments Act. H.R. 3195 and S. 1881 as introduced would have eliminated the phrase
“substantially limits” from the definition thereby broadening the definition of disability to cover
the majority of the population. The House passed H.R. 3195 on June 25, 2008, by a vote of 402 to
17. The House-passed bill would have kept the term “substantially limits” and defined it as
The Senate Health, Education, Labor and Pensions Committee held a hearing on July 15, 2008,
where testimony was heard on several issues, including the impact of the ADA Amendments Act 230
on education. On July 31, 2008, Senator Harkin with 55 original cosponsors introduced S.
3406, the ADA Amendments Act of 2008, which tracked much of the House-passed language but
made several significant changes, including deleting the House definition of “substantially limits”
as “materially restricts.” S. 3406 passed the Senate by unanimous consent on September 11, 231
September 25, 2008.
H.R. 11, 111th Congress , the Lilly Ledbetter Fair Pay Act of 2009, passed the House on January
Ledbetter v. Goodyear Tire & Rubber Co., Inc. and would be applicable to claims of
discrimination in compensation brought under Title I and Section 503 of the ADA , under the
Rehabilitation Act as well as Title VII of the Civil Rights Act and the Age Discrimination in
Employment Act. The bill clarifies that the time limit for suing employers for pay discrimination
begins each time they issue a paycheck and is not limited to the original discriminatory action.
Ledbetter involved questions about the timeliness of claims filed under Title VII of the Civil 234
In the 110th Congress, the House passed H.R. 2831, 110th Cong., 1st Sess., on July 31, 2007, by a thst
vote of 225 to 199. A companion bill, S. 1843, 110 Cong., 1 Sess., was introduced in the Senate
on July 20, 2007. Hearings were held by the Senate Judiciary Committee on September 23, 235
Changes in the ADA’s statutory language to address the issue of vexatious law suits have also
been proposed. H.R. 3479, 110th Congress, would have added provisions to the remedies and
230 “Determining the Proper Scope of Coverage for the Americans with Disabilities Act,” Before the Senate Committee
on Health, Education, Labor, and Pensions, July 15, 2008, http://help.senate.gov/Hearings/2008_07_15/
231 153 CONG. REC. S. 8356 (Sept. 11, 2008). For the Statement of Managers to Accompany S. 3406 see 153 CONG.
REC. S. 8344 (Sept. 11, 2008).
232 The substantive provisions of the ADA Amendments Act are discussed in the previous section on the definition of
233 127 S. Ct. 2162 (2007).
234 For a more detailed discussion of Ledbetter and the related legislation see CRS Report RS22686, Pay
Discrimination Claims Under Title VII of the Civil Rights Act: A Legal Analysis of the Supreme Court’s Decision in
Ledbetter v. Goodyear Tire & Rubber Co., Inc., by Jody Feder.
procedures of Title III of the ADA to require a plaintiff to provide notice by registered mail of an 236
alleged violation to the defendant.
Nancy Lee Jones
236 For a more detailed discussion see CRS Report RS22296, The Americans with Disabilities Act: Legislation
Concerning Notification Prior to Initiating Legal Action, by Nancy Lee Jones; Carri Becker, “Private Enforcement of
the Americans with Disabilities Act via Serial Litigation: Abusive or Commendable?,” 17 Hastings Women’s L.J. 93
(2006). See also the preceding discussion of judicial decisions under Title III, which have attempted to respond to the
issue of vexatious litigants.