The Americans with Disabilities Act: Supreme Court Decisions
The Americans with Disabilities Act:
Supreme Court Decisions
Updated October 14, 2008
Nancy Lee Jones
American Law Division
The Americans with Disabilities Act:
Supreme Court Decisions
The Americans with Disabilities Act (ADA) provides broad nondiscrimination
protection for individuals with disabilities in employment, public services, public
accommodations and services operated by private entities, transportation, and
telecommunications. Enacted in 1990, and amended in 2008 by P.L. 110-325, the
ADA is a civil rights statute that has as its purpose “to provide a clear and
comprehensive national mandate for the elimination of discrimination against
individuals with disabilities.” It has been the subject of numerous lower court
decisions, and the Supreme Court has decided 20 ADA cases, most recently in 2006
United States v. Georgia. This report examines the Supreme Court decisions on the
ADA. It will be updated as necessary.
Introduction and Background.........................................1
Definition of Disability.............................................2
Supreme Court Decisions.......................................4
Coverage of Employers.........................................5
Rehiring of Individuals Who Had Been Terminated for Illegal Drug Use..9
Collective Bargaining Agreements................................9
Receipt of SSDI Benefits.......................................10
Community Placement and Individuals with Mental Disabilities............11
Application of the ADA to State Prisons...............................11
Eleventh Amendment Issues........................................12
Application of the ADA to Cruise Ships...............................15
Attorneys’ Fees and Damages.......................................16
The Americans with Disabilities Act:
Supreme Court Decisions
Introduction and Background
The Americans with Disabilities Act (ADA), 42 U.S.C. §§12101 et seq.,
provides broad nondiscrimination protection for individuals with disabilities in
employment, public services, public accommodations and services operated by
private entities, transportation, and telecommunications. Enacted in 1990 and
amended in 2008 by P.L. 110-325, the ADA is a civil rights statute that has as its
purpose “to provide a clear and comprehensive national mandate for the elimination
of discrimination against individuals with disabilities.”1
The ADA has been the subject of numerous lower court decisions and the
Supreme Court has decided 20 ADA cases. In the most recent Supreme Court
decision, United States v. Georgia,2 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 the same3
term, the Supreme Court decided Arbaugh v. Y. & H Corp., 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 employees.
On December 7, 2007, the Supreme Court granted certiorari in Huber v. Wal-
Mart Stores,4 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. The Eighth Circuit Court of Appeals in
Huber held that Wal-Mart was not required to automatically reassign her to the
vacant position she wanted but could place another, better qualified, candidate in the
position. Noting that Wal-Mart did place the plaintiff in a less lucrative position, the
court of appeals stated that the plaintiff “was treated exactly as all other candidates
were treated for the Wal-Mart job opening, no worse and no better.”5 Currently,
1 42 U.S.C. §12102(b)(1).
2 546 U.S. 151 (2006).
3 Arbaugh v. Y.& H. Corp., 546 U.S. 500 (2006).
4 486 F.3d 480 (8th Cir. 2007), cert. granted 2007 U.S. LEXIS 12943 (Dec. 7, 2007).
5 Id. at 484.
there is a split in the circuits on this accommodation issue, and in light of the Court’s
dismissal of the case, there will continue to be divergent views.6
Definition of Disability
The threshold issue in any ADA case is whether the individual alleging
discrimination is an individual with a disability. The ADA’s definition has been
controversial and is the subject of several Supreme Court cases, including Sutton v.
United Air Lines, Inc.,7 and Toyota Motor Manufacturing v. Williams.8 The ADA
Amendments Act of 2008, P.L. 110-325, rejected the Supreme Court’s limited
interpretations of the definition of disability in these cases.9
The ADA, as amended, defines the term disability with respect to an individual
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 having such an impairment (as described in paragraph (3)).”10
Although this is essentially the same statutory language as was in the original ADA,
P.L. 110-325 contains new rules of construction regarding the definition of disability,
which 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 lenses shall be considered.11
6 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.th
Humiston-Keeling, Inc., 227 F.3d 1024 (7 Cir. 2000), holding that an employer does not
have to “turn away a superior applicant.”
7 527 U.S. 471 (1999).
8 534 U.S. 184 (2002).
9 For a more detailed discussion of the ADA Amendments Act see CRS Report RL34691,
The ADA Amendments Act: P.L. 110-325, by Nancy Lee Jones.
10 P.L. 110-325, §4(a), amending 42 U.S.C. §12102(3).
11 Low vision devices are not included in the ordinary eyeglasses and contact lens exception.
The findings of the ADA Amendments Act include statements indicating that
the Supreme Court decisions in Sutton and Toyota as 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
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 construction in Title V of the ADA that a covered entity under
Title I,12 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
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
12 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
13 Under previous law, the circuits were split on whether there is a duty to accommodate a
“regarded as” plaintiff. See e.g., D’Angelo v.ConAgra Foods, Inc., 422 F.3d 1220 (11th Cir.th
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.”
Supreme Court Decisions
The first ADA case to address the interpretation of the definition of disability
was Bragdon v. Abbott, a case involving a dentist who refused to treat an HIV
infected individual outside of a hospital.14 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 rendering HIV infection a disability under the
Two other cases the Court has decided on the definitional issue involved
whether the effects of medication or assistive devices should be taken into
consideration in determining whether or not an individual has a disability. The Court
in Sutton v. United Air Lines15 and in Murphy v. United Parcel Service, Inc,16 held
the “determination of whether an individual is disabled should be made with
reference to measures that mitigate the individual’s impairment....”17 In Albertsons
Inc. v. Kirkingburg18 the Court held unanimously that the ADA requires proof that
the limitation on a major life activity by the impairment is substantial. The Court
held in Toyota Motor Manufacturing v. Williams,19 that to be an individual with a
disability under the act, an individual must have substantial limitations that are
central to daily life, not just limited to a particular job. The holdings of all these
decisions have been changed by the enactment of the ADA Amendments Act, P.L.
14 524 U.S. 624 (1998). For a more detailed discussion of this decision see CRS Report 98-
15 527 U.S. 471 (1999).
16 527 U.S. 516 (1999).
17 Sutton v. United Airlines. See also Murphy v. United Parcel Service, where the Court
held that the determination of whether the petitioner’s high blood pressure substantially
limits one or more major life activities must be made considering the mitigating measures
18 527 U.S. 555 (1999).
19 534 U.S. 184 (2002).
Coverage of Employers
Title I of the ADA 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 compensation, job
training, and other terms, conditions, and privileges of employment.20 The term
employer is defined as a person engaged in an industry affecting commerce who has
15 or more employees.21 Therefore, the employment section of the ADA, unlike the
section on public accommodations which does not have this limit, is limited in scope
to employers with 15 or more employees. This parallels the coverage provided in the
Civil Rights Act of 1964. Title VII, like the ADA, prohibits employment
discrimination only where employers employ 15 or more employees. In an
unanimous decision in Arbaugh v. Y. & H. Corp.,22 the Court held that the 15-
employee limitation in title VII of the Civil Rights Act23 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. Since 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 Supreme Court examined the definition of the term “employee” under the
ADA in Clackamas Gastroenterology Associates P.C. v. Wells.24 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
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 disability 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.
20 42 U.S.C. §12112(a).
21 42 U.S.C. §12111(5).
22 Arbaugh v. Y.& H. Corp., 546 U.S.500 (2006).
23 42 U.S.C. §2000e(b).
24 538 U.S. 440 (2003).
The Court first looked to the definition of employee in the ADA which states
that an employee is “an individual employed by an employer.”25 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
was the position advocated by the EEOC. The EEOC has issued guidelines which
list six factors to be considered in determining whether the 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 whether the
individual shares in the profits, losses, and liabilities of the organization.”26
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.”
Once an ADA employment case has advanced past the threshold questions of
whether the plaintiff is an individual with a disability, and whether the employer in
question employs 15 or more employees, the next set of issues involve whether the
individual can perform the essential functions of the job in question with or without
reasonable accommodation. The qualifications standards used may also include a
requirement that an individual shall not pose a direct threat to the health or safety of
other individuals in the workplace. 27 Title III contains a similar provision stating
that an entity does not have to permit an individual to participate in or benefit from
25 42 U.S.C. §12111(4).
26 EEOC Compliance Manual §605:0009.
27 42 U.S.C. §§12112-12113.
the services of the entity where the individual poses a direct threat to the health or
safety of others.28
In Bragdon v. Abbott the Court dealt with this issue in the Title III (public
accommodations) context and found that the ADA 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 poses a direct threat to the health or safety
of others.29 The Court determined that there is a duty to assess the risk of infection
“based on the objective, scientific information available” and that a “belief that a
significant risk existed, even if maintained in good faith, would not relieve him from
liability.” The Court remanded the case for consideration of the weight to be given
to various pieces of evidence relating to the direct threat issue and on remand the
court of appeals for the first circuit concluded that the defendant had produced no
legitimate scientific evidence to show that providing routine dental care would
subject him to a significant risk of contacting HIV.30 The Supreme Court denied
certiorari on May 24, 1999.31
Although the Court in Albertsons, Inc. v. Kirkingburg did not specifically
address the direct threat language, it dealt with a related concept concerning federal
safety regulations. In Albertsons, the Court held that an employer who requires an
employee as part of a job qualification to meet applicable federal safety regulations
does not have to justify enforcing those regulations, even if there is an experimental
The Supreme Court again dealt with the direct threat concept but in the context
of Title I of the ADA regarding employment in Chevron U.S.A. Inc., v. Echazabal.32
The Court held unanimously in Echazabal 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 Court upheld a regulation by the Equal Employment
Opportunity Commission (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 individual making the allegation.33 The ADA’s statutory
language provides for a defense to an allegation of discrimination that a qualification
standard is “job related and consistent with business necessity.”34 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 workplace35 but does
not discuss a threat to the individual’s health or safety. The ninth circuit in
28 42 U.S.C. §12182(3).
29 42 U.S.C. §12182(b)(3).
30 Abbott v. Bragdon, 163 F.3d 87 (1st Cir. 1998).
31 526 U.S. 1131 (1999).
32 536 U.S. 73 (2002).
33 29 C.F.R. §1630.15(b)(2).
34 42 U.S.C. §12113(a).
35 42 U.S.C. §12113(b).
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 chemicals in the workplace.36
After a review of the factual background, the Court’s decision in Echazabal
analyzed the statutory and regulatory language finding that the statutory provisions
discussed above were “spacious defensive categories, which seem to give an agency
(or in the absence of agency action, a court) a good deal of discretion in setting the
limits of permissible qualification standards.” In support of the EEOC regulations,
the Court noted that Congress used language identical to that in the Rehabilitation
Act “knowing full well” that the EEOC had interpreted that language to recognize
threats to self. Justice Souter, writing for the Court observed that the ADA’s
language was not intended to define all the defenses available to an employer.
“When Congress specified threats to others in the workplace...could it possibly have
meant that an employer could not defend a refusal to hire when an worker’s disability
would threaten others outside the workplace? If Typhoid Mary had come under the
ADA, would a meat packer have been defenseless if Mary had sued after being
The Court then turned to the issue of whether the EEOC had sufficient statutory
basis for its regulatory interpretation. Finding that “Chevron’s reasons for calling the
regulation reasonable are unsurprising: moral concerns aside, it wishes to avoid time
lost to sickness, excessive turnover from medical retirement or death, litigation under
state tort law, and the risk of violating the national Occupational Safety and Health
Act of 1970....” In addition, Justice Souter found that the EEOC regulations were not
the 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.,37 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.”
The Supreme Court reversed and remanded the lower court decision. On
remand the district court entered summary judgment in favor of the employer and the
36 226 F.3d 1063 (9th Cir. 2000).
37 499 U.S. 187 (1991).
ninth circuit reversed.38 The ninth circuit emphasized the individualized nature of the
inquiry and found that Chevron was required “to do more than consider generalized
statements of potential harm.”39
Rehiring of Individuals Who Had Been Terminated
for Illegal Drug Use
In Raytheon Co. v. Hernandez,40 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 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 required evidence of an employer’s subjective intent.41
Collective Bargaining Agreements
In Wright v. Universal Maritime Service Corp., a unanimous Court held 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. The
Court’s decision was limited since it 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. The Court did not reach situations where collective
bargaining agreements are very specific in requiring arbitration for alleged violations
of civil rights statutes.
Reasonable Accommodations and Seniority Systems
The Supreme Court in U.S. Airways v. Barnett43 held that an employer’s
showing that a requested accommodation by an employee with a disability conflicts
38 Echazabal v. Chevron, 336 F.3d 1023 (9th Cir. 2003).
39 Id. at 1030.
40 540 U.S. 44 (2003).
41 Upon review, the Ninth Circuit Court of Appeals reversed and remand the district court’s
grant of the employer’s motion for summary judgment. Hernandez v. Hughes Missileth
Systems Co., 362 F.3d 564 (9 Cir. 2004).
42 525 U.S. 70 (1998).
43 535 U.S. 391 (2002).
with the rules of a seniority system is ordinarily sufficient to establish that the
requested accommodation is not “reasonable” 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 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
Receipt of SSDI Benefits
In Cleveland v. Policy Management Systems Corp., 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 presumption44
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
44 526 U.S. 795 (1999).
However, although these distinctions between the two statutes would rule out
a special legal presumption, the Court did note that in some cases an earlier SSDI
claim may genuinely conflict with an ADA claim. Therefore, if an individual has
asserted that he or she is unable to work in an application for SSDI benefits, this may
negate the ADA requirement that the individual with a disability be able to perform
the essential functions of the job. For that reason the Court held that “an ADA
plaintiff cannot simply ignore the apparent contradiction that arises out of the earlier
SSDI total disability claim. Rather, she must proffer a sufficient explanation.” Since
the parties to the case in Cleveland did not have the opportunity to examine the
plaintiff’s contentions in court, the case was vacated and remanded for further
Community Placement and Individuals
with Mental Disabilities
In Olmstead v. Georgia,45 the Supreme Court 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 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 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 concepts in the
employment and public accommodations Titles of the ADA.
Application of the ADA to State Prisons
In Pennsylvania Department of Prisons v. Yeskey,46 the Court found that state
prisons were covered under Title II of the ADA. The state had argued that state
prisoners were not covered since such coverage would “alter the usual constitutional
balance between the States and 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 Supreme Court
45 527 U.S. 581 (1999).
46 524 U.S. 206 (1998).
addressed issues involving prisoners under the ADA in Yeskey holding that state
prisons are within the ADA’s statutory definition of “public entity,” but did not
address the constitutional issues. These may be addressed next term in the pending
decision of United States v. Georgia which raises 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.
Eleventh Amendment Issues
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 applies to suits by citizens against their own states47 and 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 have been discussed in various Supreme Court
decisions which reiterated the principle that the Congress may abrogate state
immunity from suit under the Fourteenth Amendment and found that there were
several conditions necessary for successful abrogation.
!Congressional power is limited to the enactment of “appropriate”
legislation to enforce the substantive provisions of the Fourteenth
!The legislation must be remedial in nature.
!There must be a “congruence and proportionality” between the48
injury to be prevented and the means adopted to that end.
In recent years, the Supreme Court has examined numerous statutes to
determine whether they properly abrogated the Eleventh Amendment and, in most49
cases, found the statutes lacking. However, the Court’s federalism doctrine has
been somewhat reined in by the recent decisions in Tennessee v. Lane (discussed50
below) and Nevada Dept. of Human Resources v. Hibbs, which upheld the Family
47 See e.g., Kimel v. Florida Bd. of Regents, 528 U.S. 62, 72-73 (2000).
48 See e.g., Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank,
49 For a discussion of federalism generally see CRS Report RL30315, Federalism and the
Constitution: Limits on Congressional Power.
50 538 U.S. 721 (2003).
and Medical Leave Act51 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. The Court’s recent decision in United States v.
Georgia,52 raised the issue of whether Congress had validly abrogated State immunity
from damage suits under Title II of the ADA in situations involving accommodations
for prisoners with disabilities but the Court decided the case on more narrow
grounds, holding only that title II of the ADA created a private cause of action for
damages against the states for conduct that actually violated the Fourteenth
The Supreme Court addressed issues involving prisoners under the ADA in
Pennsylvania Department of Corrections v. Yeskey53 where the Court held that state
prisons are within the ADA’s statutory definition of “public entity” but did not reach
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 immunity.
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, “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.
51 29 U.S.C. §2601 et seq.
52 546 U.S. 151 (2006).
53 524 U.S. 206 (1998). This case was discussed in more detail previously.
In Tennessee v. Lane,54 the Supreme Court retreated somewhat from its recent
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 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 abrogation55 so the Court
then applied the test set out in City of Boerne v. Flores,56 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 adopted to that end.”57
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 the 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.”
The Lane decision was close, 5-4, with two concurring opinions and a dissenting
opinion written by 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
54 541 U.S. 509 (2004).
55 42 U.S.C. §12202.
56 521 U.S. 507 (1997).
57 Id. at 520.
reached a finding of constitutionality on the specific issue of the accessibility of
judicial services. The majority’s emphasis on detailed fact finding in the legislative
history and its statement in the ADA’s findings and purposes58 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 previous decision on Title I of the ADA, the Supreme Court reached a
different conclusion regarding abrogation.In Garrett v. University of Alabama,59
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). The majority opinion in Garrett 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 targeted
violation. Those requirements are not met here....” A strong dissent by Justice
Breyer, joined by Justices Stevens, Souter and Ginsburg, argued that the majority
ignored powerful evidence of discriminatory treatment.
Title III of the ADA prohibits discrimination against individuals with disabilities60
in places of public accommodations, including golf courses. In PGA Tour v.
Martin, the Supreme Court held, 7-2, that professional golf tours are covered by Title
III and that use of a golf cart by a golfer with a mobility impairment did not
“fundamentally alter” the golf tournaments. Justice Stevens, writing for the majority,
found that “under the ADA’s basic requirement that the need of a disabled person be
evaluated on an individual basis, we have no doubt that allowing Martin to use a golf
cart would not fundamentally alter the nature of petitioner’s tournaments.” Justice
Scalia, joined by Justice Thomas, wrote a scathing dissent arguing that the majority
distorted “the text of Title III, the structure of the ADA, and common sense.”
Application of the ADA to Cruise Ships
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
58 42 U.S.C. §12101(a)(3).
59 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
60 42 U.S.C. §§12181-12182.
foreign cruise ships in U.S. waters.61 Prior to this decision there had been a split in
the circuits with the eleventh circuit holding in Stevens v. Premier Cruises Inc.62 that
Title III of the ADA does apply to foreign cruise ships and the fifth circuit in Spector
v. Norwegian Cruise Lines63 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.
Attorneys’ Fees and Damages
The ADA allows a court, in its discretion, to award attorneys’ fees to a64
prevailing party. In Buckhannon Board and Care Home, Inc., v. West Virginia
Department of Human Resources,65 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.
The Supreme Court in Barnes v. Gorman66 held in a unanimous decision that67
punitive damages may not be awarded under Section 202 of the ADA and Section
61 545 U.S. 119 (2005).
62 215 F.3d 1237 (11th Cir. 2000), rehearing and rehearing en banc denied, 284 F.3d 1187
(11th Cir. 2002).
63 356 F.3d 641 (5th Cir. 2004).
64 42 U.S.C. §12205.
65 532 U.S. 598 (2001).
66 536 U.S. 181 (2002).
67 42 U.S.C. §12132. Section 203, 42 U.S.C. §12133, contains the enforcement provisions.
68 29 U.S.C. §794. Section 504 in relevant part prohibits discrimination against individuals
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 cause of action brought under Title VI of the Civil
Rights Act of 1964.”69 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 Spending Clause70
to place conditions on grants. Justice Scalia noted that Spending Clause 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 intends to impose a condition on the grant of federal
moneys, it must do so unambiguously.”71 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 the
The exact implications of Gorman are not clear. Justice Stevens argued that the
reasoning used in Justice Scalia’s opinion has “potentially far-reaching consequences
that go well beyond the issues briefed and argued in this case”; although he also
noted that Justice Scalia did “cabin the potential reach of today’s decision by stating
that we do not imply, for example, that suits under Spending Clause legislation are
suits in contract, or that contract-law principles apply to all issues that they raise.”
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,
69 42 U.S.C. §2000d et seq.
70 U.S. Const., Art. I §8, cl.1.
71 Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17 (1981).