Tuesday, September 18, 2007
Ireland and Bales on Title II of the Americans with Disabilities Act and its Prohibition of Employment Discrimination
Jamie Ireland (Northern Kentucky/Chase - student) and Rick Bales (Northern Kentucky/Chase) have posted on SSRN their forthcoming piece in the Northern Illinois Law Review entitled: Title II of the Americans with Disabilities Act and its Prohibition of Employment Discrimination.
Here's the abstract:
Title I of the Americans with Disabilities Act (ADA) prohibits employment discrimination. Title II of the ADA prohibits discrimination in the provision of programs, services, or activities by federal, state, and local government entities. Title I, however, contains significant coverage gaps: federal employees, and employees of employers with less than fifteen employees, are not covered. When these employees are discriminated against on the basis of disability, they often sue under Title II, which does not contain the Title I exclusions.
The federal circuit courts are split on the issue of whether the ADA Title II applies to employment discrimination claims. The Ninth Circuit has held that it does not, reasoning that the exclusions in Title I would be meaningless if litigants could back-door their claims via Title II. The Second, Fourth, Fifth, and Eleventh Circuits, however, relying on the plain language of the statute and on Department of Justice regulations, have held that Title II does apply to employment discrimination claims. This article agrees with the latter set of circuits, arguing that such an interpretation is consistent with the statute's plain language, legislative history, legislative intent, and administrative regulations.
Interesting and important article that explores the plight of many types of employees, including federal employees, who do not come under the traditional ADA Title I framework. It also shows how individuals who are excluded by Title I, may have federal anti-discrimination protection. Check it out!