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The Americans with Disabilities Act (ADA)[93]
is a broad remedial civil rights law enacted to address the historic and
pervasive discrimination against people with disabilities in all areas
of public life. Until
the ADA was passed, people with disabilities lacked the type of uniform
federal protection already extended to individuals who experience
discrimination on the basis of race, sex, religion, national origin, and
age.
In enacting the ADA, Congress declared that “discrimination
against people with disabilities persists in such critical areas as
employment, housing, public accommodations, education, transportation,
communication, recreation, institutionalization, health services,
voting, and access to public services.”[94]
It also recognized that discrimination comes in many forms:
outright intentional exclusion; the discriminatory effects of
architectural, transportation, and communication barriers;
overprotective rules and policies; failure to make modifications in
policies, existing facilities, and practices; exclusionary qualification
standards and criteria; and segregation and relegation to lesser
programs, services activities, benefits, jobs, and other opportunities.[95]
Congress noted the tremendous cost of this discrimination to
people with disabilities, including inferior status in society,
relegation to a position of political powerlessness based on
characteristics beyond their control and stereotypes and assumptions not
indicative of true ability,[96]
and denial of the opportunity to compete on an equal basis.[97] Equality
of opportunity, full participation, independent living, and economic
self-sufficiency were all identified as goals of the Act.[98]
To achieve these goals, Congress provided “a clear and
comprehensive national mandate for the elimination of discrimination
against individuals with disabilities.”[99] The
ADA is extremely broad in scope: Title I covers private employment;[100]
Title II covers state and local government programs and services,
including public transportation;[101]
Title III covers privately owned places of public accommodation such as
restaurants, movie theaters, retail businesses, private schools, health
and social service establishments, and other businesses open to the
public;[102]
Title IV covers telecommunications;[103] and Title V contains miscellaneous provisions,
including provisions relating to the application of the ADA to
insurance, the relationship between the ADA and state laws prohibiting
discrimination on the basis of disability, and prohibition on
retaliation for filing charges or invoking rights under the ADA in any
other manner.[104]
Many parts of the ADA were modeled on existing civil rights laws.
The definition of disability and much of the substantive provisions of
Titles I, II, and III are modeled on regulations implementing Section
504 of the Rehabilitation Act. For this reason, case law under Section 504 is often
considered relevant in ADA cases. The
ADA contains a provision making clear that it should be interpreted in a
manner that gives at least as much protection to people with
disabilities as Section 504.[105]
One of the chief goals of the ADA was to eliminate discrimination
and other barriers in employment. During
the hearing process that led to the ADA’s passage, Congress heard
extensive testimony about “the staggering levels of unemployment and
poverty of people with disabilities”[106] and the high percentage of unemployed people
with disabilities on public benefits.[107]
This testimony is referred to extensively in the Committee
Reports. Both the House and
the Senate reports discuss a Lou Harris poll that found that two-thirds
of unemployed people with disabilities of working age said they wanted
to work.[108]
The ADA goal of increasing employment of people with disabilities
is consistent with many of the goals of PRWORA and state TANF programs.
Unfortunately, despite the passage of the ADA, unemployment and
underemployment of people with disabilities is still a major problem.
An updated Lou Harris poll conducted in 1998 found that only 29%
of adults with disabilities were working full or part-time, as compared
to 79% of those without disabilities. Further, 72% of those with
disabilities who were not employed said they would prefer to work.[109]
In advocating on behalf of TANF clients with disabilities,
advocates should not lose sight of this problem.
The results of the study suggest that exempting large groups of
people with disabilities from work and other program requirements may
not be the best solution for people with disabilities.
In the long run, these exemptions may contribute to isolation and
exclusion of people with disabilities and make economic independence
more difficult to achieve.
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The Title II prohibition on discrimination contained in the
statute is brief. It reads:
“[s]ubject to the provisions of this subchapter, no qualified
individual with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of services,
programs or activities of a public entity.”[110]
The ADA requires the Department of Justice (DOJ) to promulgate
regulations implementing Title II,[111] and it is these regulations that contain the
specific prohibitions and requirements of Title II. With a few important
exceptions, Title II provides that the regulations must be consistent
with the Department of Justice Section 504 “coordination
regulations.”[112]
To date the Supreme Court has not ruled on the validity of the
ADA Title II regulations.
Title II applies to the programs and services of a “public
entity,” which is defined as “any State or local government, any
department, agency, special purpose district or other instrumentality of
a State or States or local government, and the National Railroad
Passenger Corporation and any commuter authority.”[113]
Public entities are bound by many of the prohibitions in Title
II, regardless of whether they provide a service directly or “through
contractual, licensing or other arrangements.”[114] In
other words, state and local governments and agencies remain accountable
for the accessibility, design, administration and other aspects of their
programs even when they do not provide services directly but contract or
license these services out to others.[115]
However, Title II does not apply to every privately operated
program just because it is licensed by a state or city agency.
To be subject to Title II, a program or service must be a program
or service of a state or local government.[116]
State lotteries, for example, have been held by many courts to be
state programs, and thus the services of retailers licensed to sell
lottery tickets have been held to be subject to Title II.[117]
The fact that the state issues a liquor license to a privately owned and
operated restaurant does not bring the restaurant within the ambit of
Title II.[118]
A state agency that issues liquor licenses operates a licensing
program, not a restaurant program, and so it is the licensing program
that is subject to Title II, not the restaurant.[119]
When a private agency receives some, but not all, of its funding
from a state or local government program, it may not be clear whether
the private agency is operating as a state or local government entity.
Program descriptions, contract language, and other documents will
be relevant to determining whether the private program is implementing
or a part of a public entity’s program.
The catchall phrase “other arrangements” in “contractual,
licensing or other arrangements” suggests that this requirement was
meant to be read broadly.
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The ADA protects people with disabilities.
The ADA defines “disability” as: (1) “a physical or mental
impairment that substantially limits one or more of the major life
activities of such individual,” (2) “a record of such an
impairment,” or (3) “being regarded as having such an impairment.”[120]
ADA regulations give examples of impairments,[121]
but the list is illustrative and not exclusive.[122] The
ADA definition of disability is a functional one, based on the degree of
limitation caused by impairment. One
person with diabetes may qualify as a person with disability under the
ADA[123] while another person with diabetes does not.[124] Unlike
the definition of disability used by the Social Security Disability (SSD)
and Supplemental Security Income (SSI) programs,[125]
the ADA has no listings of conditions or specific levels of severity for
particular conditions that an individual must meet. The key issue is whether the individual has an impairment
that results in a substantial limitation in a major life activity.
There has been extensive litigation on the question of whether
individuals with certain disabilities are covered by the ADA; indeed, it
has been one of the most contentious issues under the law.
The ADA also protects individuals who do not have a disability
themselves but who have a known relationship or association with someone
who does have a disability, when the nature of the discrimination is
based on a known relationship.[127]
Some conditions are excluded from the definition of “individual
with a disability.” Homosexuality, bisexuality, and other conditions
labeled in the statute as “sexual disorders,” as well as
kleptomania, pyromania, and compulsive gambling are not disabilities
under the ADA.[128]
Individuals “currently engaging in illegal drug use when the
covered entity acts on the basis of such use” are also excluded from
coverage under the ADA.[129] Individuals
who have successfully completed or who are currently participating in
supervised drug rehabilitation programs and are no longer engaged in
illegal drug use are protected under the Act.[130]
EEOC’s Technical Assistance Manual for Title I of the ADA[131]
states that “current” means “recently enough to justify an
employer’s reasonable belief that involvement with drugs is an ongoing
problem,” and is not limited to “the day of use, or recent weeks or
days.”[132] Most
courts have interpreted “current use” broadly and held that
individuals who have not used illegal drugs for weeks, a month or even
more are “current” users.[133] In
some employment discrimination cases, courts measure the recency of use
from the date the individual is notified that she has been discharged,
rather than the actual employment termination date,[134]
making it even more difficult for individuals to demonstrate that use is
not current. It is a violation of the ADA, however, to deny current
users of illegal drugs health care services or services provided in
connection with rehabilitation on the basis of illegal drug use if the
individual is qualified for the services.[135]
Alcoholism is a disability under the ADA.[136]
To be protected under Title II, an individual must not only have
a disability but must also be a “qualified individual with a
disability,”[137]
which is defined as “an individual with a disability who, with or
without reasonable modifications to rules, policies, or practices, the
removal of architectural, communication or transportation barriers, or
the provision of auxiliary aids and services, meets the essential
eligibility requirements for the receipt of services or the
participation in programs or activities provided by the public
entity.”[138]
These concepts are discussed in Part Two.
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The Title II regulations contain four main standards: 1) a
general prohibition on discrimination; 2) a standard for communication
access; 3) a standard for accessibility to existing program facilities;
and 4) a standard for new construction and alterations.
The general prohibition on discrimination in Title II states,
“no qualified individual with a disability shall, by reason of such
disability, be excluded from or denied the benefits of the services,
programs, or activities of a public entity, or be subject to
discrimination by any such entity.”[139] Discrimination
is defined broadly to include:
Directly,
or under contract, licensing or other arrangements:
1)
denying a qualified individual with a disability an opportunity to
participate in or benefit from an aid, program or service;[140]
2)
providing an opportunity to participate in or benefit from the aid,
benefit or service that is not equal or not as effective in providing an
equal opportunity to obtain the same result or reach the same benefit;[141]
3)
providing different or separate aids, services or benefits to an
individual with a disability or class of individuals with disabilities
than those provided to others except when necessary to provide benefits
or services that are as effective as those provided to others;[142]
4)
aiding or perpetuating discrimination by providing significant
assistance to an agency that discriminates on the basis of disability;[143]
5)
denying people with disabilities an opportunity to participate in
planning or advisory boards;[144]
6)
otherwise limiting a qualified individual with a disability in the
enjoyment of any right, privilege, advantage or opportunity enjoyed by
others receiving the aid, benefit or service;[145]
7)
excluding people with disabilities from programs that are designed for
people without disabilities; or[146]
8)
using “criteria or methods of administration” that have a
discriminatory effect, or that have the purpose or result of
substantially impairing the goals of the program or service for people
with disabilities, or that perpetuate discrimination of another public
entity under common control. [147]
In
addition, a public entity is prohibited from:
1)
making site selections for facilities that have a discriminatory effect
or that have the purpose or effect of substantially impairing the
objectives of the service, program or activity for people with
disabilities;[148]
2)
using criteria in the selection of procurement contractors that have a
discriminatory effect;[149]
3)
administering licensing or certification programs in a manner that has a
discriminatory effect or establishing criteria for the activities of
licensees that subject people with disabilities to discrimination;[150]
4)
using eligibility criteria that screen out or tend to screen out
individuals or a class from full enjoyment of programs and services
unless necessary for the provision of the service;[151]
5)
placing surcharges to cover the cost of auxiliary aids or measures taken
to provide program access; or[152]
6) requiring people with disabilities to accept accommodations
they do not want.[153]
Public
entities must:
1)
make “reasonable modifications” in policies, practices or procedures
when necessary to avoid discrimination unless it can demonstrate that it
would “fundamentally alter” the nature of the program or service; [154]
and
2)
administer programs and services in the “most integrated setting
appropriate to the needs of qualified individuals with disabilities.”[155]
The regulations also make clear that it is not discrimination to
provide benefits, services and advantages to people with disabilities or
to a particular class of individuals with disabilities that are
“beyond” those provided to others.[156]
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Under Title II, public entities must take appropriate steps to
ensure that communication with applicants, participants, and members of
the public with disabilities are “as effective” as communication
with others.[157]
Specifically, public entities must:
1)
Provide appropriate auxiliary aids and devices where necessary to afford
an individual with a disability an equal opportunity to participate in
and enjoy the benefits of a service, program or activity of a public
entity.[158]
Auxiliary aids and devices include qualified sign language interpreters,
readers, open and closed captioning, telecommunication devices for the
deaf (TDDs), and assistive listening devices;
2)
Use TDDs or equally effective telecommunication systems to communicate
with those with impaired speech or hearing when the public entity
communicates by telephone with applicants and beneficiaries;[159]
3)
Provide telephone emergency services, “including 911 services,” with
“direct access” to people who use TDDs and computer modems;[160]
4)
Ensure that interested persons, including people with vision and hearing
impairments, can obtain information on the existence and location of
accessible services, facilities and activities; and[161]
5)
Place signage at all inaccessible entrances to each of its facilities
directing individuals to accessible entrances, or to locations where
they can obtain information about accessible facilities.
The regulations require the use of the international symbol for
accessibility at accessible entrances.[162] DOJ
has indicated in guidance that signs must also be posted indicating the
existence and location of TDDs near phone banks that do not have TDDs
and elsewhere.[163]
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In addition to the Title II reasonable modification requirement
and the Title II requirements for new construction, Title II also
requires existing programs to be operated so that individuals with
disabilities are not excluded from participation because the public
entity’s facilities are physically inaccessible to or unusable by
people with disabilities.[164]
The relevant inquiry is
whether each program, service or activity “when viewed in its
entirety” is accessible to and usable by people with disabilities.[165] State
and local governments can achieve program accessibility in a variety of
ways, and need not make every building or facility accessible to or
usable by people with disabilities, as long as the program is accessible
in its entirety.[166] Public
entities also have an obligation to keep features such as ramps,
elevators, TDDs, and accessible bathrooms in working condition.[167]
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Facilities or parts of facilities built by or for the use of
public entities must be designed and built so that they are “readily
accessible to and usable by” people with disabilities if construction
began after January 26, 1992.[168] Alterations
to facilities must, to the maximum extent feasible, be made so that the
part altered meets this standard.[169]
New construction and alterations must conform to one of two
specific access design standards.[170] With one exception, they can depart from this
standard only when equivalent access is provided.[171]
Newly constructed and altered roads must have curb ramps or
sloped areas at intersections with curbs or other barriers,[172]
and newly constructed or altered walkways must also contain curb ramps
or sloped areas at intersections.[173]
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Individuals
cannot be compelled to accept accommodations, services or benefits.[174]
Title
II regulations prohibit discrimination by state and local governments in
all aspects of employment, and the requirements of Title I apply if the
public entity is also covered under Title I.[175]
Title
II of the ADA, and the other Titles, do not limit or invalidate state
laws that provide greater or equal protection to people with
disabilities.[176]
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Public entities do not have to make reasonable modifications in
policies and practices when it would “fundamentally alter” the
program.[177]
Nor do they have to take action that would make programs
accessible to and usable by people with disabilities,[178]
or assure effective communication with applicants, participants and the
public[179]
if it would “fundamentally alter” the nature of the program or if it
would result in “undue financial and administrative burdens.”[180] “Fundamental
alteration” and “undue burden” are affirmative defenses that
public entities must plead and prove.[181]
Title II contains other defenses. In addition, public entities
can provide separate programs when necessary to ensure equality for
people with disabilities[182] and can use eligibility criteria that screen or
tend to screen out people with disabilities when necessary to provide
the program or service.[183]
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Title II regulations require all public entities with more than
50 employees to designate a responsible employee to coordinate ADA
requirements and investigate complaints, and make available to all
interested individuals the name, address, and telephone number of the
individual or individuals who are designated.[184] If
both State and local government agencies administer a program and have
more than 50 employees, both must satisfy this requirement.
The purpose of this requirement is to ensure that individuals
dealing with large bureaucracies can easily find a responsible person
who is knowledgeable about the ADA and can communicate to others in the
agency who may be unaware of their obligations.[185]
DOJ has made clear that this requirement does not relieve an agency from
its obligation to make sure that all agencies comply with the ADA, but
ensures that any failures by ADA employees can be “promptly
corrected.”[186] To
be effective, the ADA Coordinator “must have the authority, knowledge,
and motivation to implement the regulations effectively.”[187]
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Title II regulations require public entities to make available to
applicants, participants, beneficiaries and “other interested
persons” information about Title II and its applicability to the
services, programs, or activities of the public entity.
The information must be provided in a manner “as the head of
the entity finds necessary” to inform individuals of the protections
against discrimination assured by Title II.[188] Interpretive Guidance to the regulations
mentions handbooks, manuals and pamphlets distributed to the public,
posters in service centers and other public places, and TV and radio
broadcasts as possible means of dissemination.
Notice must be effectively communicated to people with
communication impairments,[190] by methods such as open and closed captioning
public service announcements, audiotape, and Braille.
Notices should include the name, telephone number and address of
the agency’s ADA Coordinator.[191]
In order to be effective, notice should be provided not once but
on an ongoing basis.[192] Notice
must be given in response to individual questions and requests, and
“proactively,” when it has not been requested.[193]
The ADA Title II Action Guide for State and Local Governments, which was
prepared by Adaptive Environments Center and funded by the National
Institute for Disability and Rehabilitation Research, recommends that
notice also be included in applications for programs, services, and
benefits.[194]
Courts have held that these notice requirements are enforceable.[195]
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Title II regulations require public entities with more than 50
employees to adopt and publish grievance procedures providing for
“prompt and equitable resolution of complaints alleging any action
that would be prohibited by this part.”[196] Information
about the availability of grievance procedures should be included in ADA
posters, brochures, announcements and by other methods. At least one
court has held that individuals can sue to challenge the failure to have
grievance procedures.[197]
As claims related to compliance with this requirement have been
raised in very few cases,[198] there is no case law on what constitutes an
acceptable grievance procedure, prompt resolution of claims, or adequate
publication of the procedure.
The ADA Title II Action Guide for State and Local Governments
recommends that agencies’ ADA grievance procedures include:
1) a detailed description of the procedure for filing a
grievance;
2) a two-step review process that allows for an appeal;
3) reasonable time frames for review and resolution of the
grievance; and
4) good record-keeping for complaints and documentation of action
taken to resolve
grievances.[199]
When necessary, agencies must make reasonable modifications in
grievance procedures for people with disabilities to enable them to have
an equal opportunity to use the procedure. This includes providing
assistance with completing grievance procedure forms when needed because
of a disability and providing alternatives to written grievances, such
as the ability to file oral grievances and grievances by phone, when
necessary to enable people with disabilities to have meaningful access
to the grievance procedure.
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Title II regulations do not discuss or specifically require
compliance monitoring by public entities.
However, the need for public entities to engage in compliance
monitoring logically follows from other Title II requirements.
As a practical matter, compliance monitoring is the only way of
ensuring that public entities comply with Title II.
State and local government programs and services are often
operated by immense bureaucracies at many different sites, by employees
who come and go over time. Practically
speaking, there is no other way that state and local government’s can
know whether programs and services are accessible to and usable by
people with disabilities. Compliance
monitoring has been ordered by courts as a remedial measure under Title
II, [200]
and has been a standard feature in Title II consent decrees.[201]
At least one court has held that a public entity’s failure to have
policies and procedures to ensure ADA compliance did not violate the
ADA.[202]
Advocates should therefore do whatever they can to get public entities
to voluntarily undertake compliance monitoring.
They should also anticipate ADA violations when it does not
occur.
When a public entity contracts with private agencies to provide
services, compliance monitoring should include the programs and services
provided under contract as well. In
the words of the Title II Action Guide for State and Local Governments,
“[e]nsuring that private agencies operating public programs comply
with nondiscrimination requirements requires ongoing monitoring.”[203]
Arguably, compliance monitoring is even more essential when
public services are contracted out because public entities will have
little or no idea what contract agencies are doing unless they monitor
the activities of these private organizations. In one case, a court criticized a public entity for budgeting
only one on-site ADA compliance inspection per year of private agencies
under contract to provide services and for asking contractors whether
they were complying with the ADA instead of conducting their own
inquiry.[204]
The ADA Title II Action Guide suggests that public entities can
satisfy the need for monitoring of contract agencies by:
1)
requiring contractors to conduct their own evaluations of the
accessibility of their programs and draft their own plans for ADA
compliance;
2) including ADA requirements in every new request for proposals
(RFPs);
3)
reviewing ADA requirements when contracts and leases are negotiated,
revised and renewed;
4)
including ADA requirements in standard contracts;
5) inviting contractors to attend ADA trainings conducted by
public entities;
6)
canceling contracts that do not comply with access requirements within a
specified period of time; and
7)
checking ADA compliance when monitoring contract compliance and
conducting ADA compliance reviews.[205]
While these activities will
go a long way toward achieving compliance by contract agencies,
advocates should take the position that public entities cannot delegate
away all of their responsibility in this area, and must oversee at least
some aspects of compliance monitoring by private agencies, to make sure
that it is taking place and that monitoring procedures, evaluations, and
plans are adequate.
In November 1999, the Department of Labor (DOL) issued interim
regulations under the Workforce Investment Act (WIA),[206]
prohibiting WIA-funded programs from discriminating on the basis of
race, religion, sex, national origin, age, political affiliation, belief
or disability.[207]
The section of the regulations on disability discrimination is
modeled on ADA Title II regulations, and thus sheds light on the federal
government’s current views about Title II compliance by programs
closely related to TANF programs. The interim regulations require each
Governor to submit a document to DOL, called a “Method of
Administration,” containing assurances that the state and WIA grant
recipients will comply with non-discrimination requirements and
containing a detailed description of how the state will do so. The
Method of Administration must include assurances about and descriptions
of the following:
1)
the names of equal employment opportunity officers and each grantee who
has an obligation to monitor compliance with non-discrimination
requirements, develop and review non-discrimination policies,
investigate non-compliance, monitor compliance, and report to state
officials;
2) adequate training for these officers so they can fulfill their
obligations;
3)
publicity of non-discrimination policies and the complaint process,
using language specified in the regulations;
4) record keeping by grantees so that compliance can be
monitored;
5) confidentiality policies for such records;
6) oversight by the Governor to ensure that grant recipients keep
records;
7)
a complaint procedure with detailed notice to complainants about
complaint resolution and the time frames specified in the regulations;
8)
a system for determining whether grant recipients are likely to comply
with non-discrimination mandates;
9)
a compliance monitoring system that includes specific types of data
analysis, review of grantees’ policies, procedures for obtaining
prompt corrective action, and documents showing compliance with the
Method of Administration and Section 504 of the Rehabilitation Act;
10)
a deadline for developing a Method of Administration and a requirement
that the Method of Administration be updated whenever necessary, with
notice to DOL of any updates; and
11)
optional compliance reviews before a state provides a grant to a grantee
and compliance reviews after grants are made.[208]
These interim regulations reflect an understanding that detailed
written plans, investigative authority, compliance reviews,
record-keeping, training, standards for evaluating compliance, and clear
lines of responsibility are all necessary to ensure compliance by states
and grantees with non-discrimination mandates.
They provide a useful model for the types of measures advocates
may want to urge TANF programs to adopt to ensure compliance with Title
II.
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Title II went into effect on January 26, 1992.[209]
Title II regulations gave public entities until January 26, 1995
to complete structural changes to achieve program access.[210]
The term “structural changes” refers to architectural changes and
some communication access changes, not changes in program policies and
procedures.
Title II can be enforced by filing an administrative complaint
with DOJ within 180 days of the discriminatory conduct or with one of
the seven designated federal agencies identified in the Title II
regulations[211]
or by filing a lawsuit.[212]
The Department of Health and Human Services (HHS) is the
designated agency for handling complaints involving programs, services,
and activities relating to social services programs;[213]
the Department of Labor (DOL) is the designated agency for labor
programs;[214]
and the Department of Education (DOE) is the designated agency for
education programs.[215]
Given the breadth of TANF-related programs and services, any one
of these agencies, or another, could be the appropriate agency for
filing a Title II charge related to TANF. If two or more designated agencies have apparent
responsibility over a complaint, the DOJ must designate one of those
agencies as the agency that will handle the complaint.[216]
The majority of courts addressing the issue have held that it is
not necessary to exhaust administrative remedies by filing an
administrative complaint with the Department of Justice[217]
or other designated agency, or the EEOC if the claim against a public
entity relates to employment under Title II,[218] or to use grievance procedures,[219]
before filing a lawsuit, but a few have held otherwise.[220] The
statute of limitations for filing a court action is the same as for an
analogous claim under state law, such as a state or locality’s human
rights law if that law covers discrimination on the basis of disability.[221]
Available relief includes declaratory and injunctive relief and
compensatory damages,[222] although some courts have held that
discriminatory intent is required for compensatory damages.[223]
Some courts have held that punitive damages are available as
well,[224]
though a showing of discriminatory intent is necessary.
In the context of disability discrimination, however, some courts
have held that intentional discrimination does not require specific
intent to discriminate. In
the words of one court, it “may be inferred when a policymaker acted
with at least deliberate indifference to the strong likelihood that a
violation of federally protected rights will result from the
implementation of the policy . . . or custom.”[225]
The Supreme Court held in a case brought under Title IX of the
Civil Rights Act that the general rule is that federal courts have the
power to award any appropriate relief in cases brought under federal
statutes, “absent clear direction to the contrary by Congress,”[226]
suggesting a presumption in favor of a broad array of remedies. This
case, however, did not involve punitive damages.
The question of whether the Eleventh Amendment prohibits lawsuits
seeking some types of relief against states under Title II of the ADA is
discussed in Chapter 4.
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Section 504 of the Rehabilitation Act[227]
prohibits discrimination against people with disabilities on the basis
of disability in programs and services that receive federal financial
assistance and by federal executive agencies and the Unites States Post
Office. The ADA was enacted, in part, because Section 504 of the
Rehabilitation Act was not sufficiently broad in scope, but Section 504
remains in effect, and advocates should continue to use it when
appropriate. As the ADA does not cover the programs and services of
federal agencies, claims against federal agencies must be brought under
Section 504.
Section 504 requires each federal executive agency to promulgate
its own Section 504 regulations, and the regulations of each agency are
not identical. Therefore, it is always necessary to consult the
regulations of the particular federal agency that operates or funds the
program in question. The Department of Justice also has Section 504
“coordination regulations,”[228]
intended to serve as a guide to other agencies. To the extent permitted by law, agencies’ Section 504
regulations should be consistent with the DOJ coordination regulations,[229] so advocates should consult those regulations
as well. In 1992, Section 504 was amended to provide that the
standards used to determine Section 504 claims of discrimination in
employment are the same standards as those in the ADA.[230] Many
courts rely on case law under Section 504 to interpret Title II of the
ADA,[231] and there is much in the legislative history to
support the view that Congress intended Title II to contain the same
requirements as Section 504.[232] Nevertheless,
in a few respects, Title II differs from Section 504 and some of the
Section 504 regulations, and Title II provides more protection than some
of the case law interpreting Section 504.
Thus advocates may be able to use the ADA even when Section 504 case law
is not favorable.
Because many state and local government entities receive federal
financial assistance, many discrimination claims against state and local
government entities can be brought under Title II and Section 504.
There is no prohibition on bringing claims under both statutes.
Since not all Section 504 regulations are the same, and none are
identical to ADA Title II regulations, there may be good reasons to
bring both claims.
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Before the ADA can be applied to particular aspects of TANF
programs, a threshold question must be addressed: does the ADA apply to
TANF programs at all? The unequivocal answer is yes.
PRWORA specifically provides that the Americans with Disabilities
Act, Section 504 of the Rehabilitation Act, and other specified federal
civil rights laws “shall apply to any program or activity which
receives funds provided under this part.”[234] This, however, does not end the inquiry,
because the Supreme Court has held that at least in some situations, a
general federal anti-discrimination statute does not apply to conduct
authorized by another, more specific federal law.
In Traynor v. Turnage,[235]
the Supreme Court held that the Rehabilitation Act did not invalidate a
Veterans Administration (VA) regulation that classified some types of
alcoholism as “willful misconduct,” thereby disqualifying some
individuals with alcoholism from receiving extensions of time to use VA
tuition assistance. The
Court held that the Rehabilitation Act did not “expressly
contradict” the more “narrow, precise and specific” “willful
misconduct” exception.
There was evidence that Congress assumed this provision would be
interpreted to apply to some people with alcoholism when the “willful
misconduct” provision was enacted.
In addition, the Court noted the close timing of the two pieces
of legislation the VA Act was amended in 1977, and the Rehabilitation
Act was amended to apply to federal agencies in 1978 and concluded that
Congress would have been explicit if it intended the Rehabilitation Act
to invalidate the VA Act’s “willful misconduct” definition.
It also relied on the principle that repeals by implication are
disfavored.
The situation in Traynor could not be more different from the issue here. First, the
major rationale for Traynor,
that appeals by implication are disfavored, has no applicability here.
Second, unlike Traynor, where
the federal discrimination law was amended after the Veterans Act, the
ADA was in existence prior to the enactment of PRWORA and has not been
amended since passage. In
addition, Congress went out of its way to make clear in PRWORA that
PRWORA does not authorize states to engage in conduct that would violate
the ADA. Thus, Traynor
should not be an impediment to applying the ADA to TANF programs and
services. Although PRWORA does state that “this part shall be
interpreted to entitle any individual or family to assistance under any
State program funded under this part,”[240]
this language was included to make clear that Congress did not intend to
continue the entitlement to benefits that existed under AFDC.
It does not refer to the rights an individual may have under
other laws, such as the ADA. Title II of the ADA applies to all state
and local government programs, whether or not they are entitlement
programs, and the question of whether a program or service is an
entitlement is not even considered by courts in Title II cases.[241]
Thus, this should have no bearing on ADA issues.
In August 1999, the Office of Civil Rights (OCR) of the U.S.
Department of Health and Human Services issued guidance on the
application of federal civil rights laws to TANF programs.[242]
Thus HHS obviously shares the view that the ADA and Section 504
apply to many aspects of TANF programs design and implementation,
including the program access requirement, the prohibition on unnecessary
eligibility standards that screen out people with disabilities, the
prohibition on unnecessary segregation, and the application of the ADA
to private entities under contract with TANF programs. The Guidance
gives a number of examples of issues that may violate the ADA, including
program eligibility standards that screen out people with disabilities
and the failure to ensure effective communication with individuals with
hearing, speech, and vision impairments, and it provides examples of
reasonable modifications in TANF programs.
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Many ADA claims on behalf of TANF applicants and recipients will
come within the ADA’s prohibition on discrimination on the basis of
association with a person with a disability. For example, if a TANF
program fails to make reasonable modifications for a parent or caretaker
with a disability that are needed to satisfy work or other requirements
and the entire family is sanctioned as a result, the children in the
family would have a claim on the basis of association with a person with
a disability.
Courts have interpreted the prohibition on discrimination on the
basis of association with a person with a disability broadly in Title II
cases involving access to government programs and services.
For example, a couple seeking to become foster parents were
permitted to challenge a policy of disclosing the disabilities of the
children of prospective foster parents to the foster child’s
biological parents.[243]
Parents and grandparents of children with hearing impairments were
permitted to challenge the elimination of counselors fluent in sign
language from a mental health program on the basis that they were being
denied the services they needed to help their relatives with
disabilities.[244]
In ADA employment discrimination cases, however, many courts have
interpreted the prohibition on discrimination on the basis of
association narrowly, holding, for example, that employees who miss work
to care for sick relatives are not protected by Title I of the ADA.
The rationale for these decisions, however, was not that the
ADA’s prohibition on associational discrimination did not apply, but
rather that individuals who failed to comply with neutral time and
attendance requirements were not “qualified individuals with
disabilities” under the ADA because, by violating time and attendance
requirements, they were unable to meet essential requirements of their
jobs.[245] This
should not be an issue in most Title II TANF claims alleging
discrimination on the basis of association with a person with a
disability in state and local programs.
As discussed in Chapter 6, the burden for establishing that an
individual is “qualified” is less onerous under Title II claims that
do not involve employment than under Title I, and thus these cases
should be distinguishable.
Moreover, courts have recognized that even under Title I, some
aspects of employment, like fringe benefits, are intended not only for
employees but also for family members, and courts have therefore allowed
employees without disabilities to sue under the associational provision
to challenge discrimination in employer-provided health benefits.[246]
Thus even under Title I there is case law supporting the notion
that individuals without disabilities may sue when rules have a
discriminatory effect on family members with disabilities.
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Some TANF programs, such as the Wisconsin W-2 program, contract
out administration to private organizations.[247]
Others contract out particular parts of the program, such as the
disability assessment process.[248] TANF
services provided under contract are subject to many Title II
requirements.[249] The
fact that privately operated programs, such as day care centers,[250]
job training programs, and private organizations conducting disability
assessments are covered by Title III of the ADA as privately operated
places of public accommodation does not exclude them from the reach of
Title II, if they are operating under license, contract, or other
arrangements with TANF programs.
Advocates should obtain and review contracts between welfare
agencies and contractors to see whether these contracts mention
contractors’ obligations under Title II of the ADA and if so, how this
obligation is defined. Boilerplate
language that the private contracting organization “will comply”
with the ADA is better than nothing, but is unlikely to result in ADA
compliance, because contracting organizations have not committed to do
anything specific. Contractors may not even know what ADA compliance
means in the context of the particular program. Advocates should also
seek a role in the contract drafting, negotiation, and renewal process.
It may not always be easy to determine when a private
organization is delivering Title II services under contract and when it
has received state and local government funds to operate its own,
private program. The
answer, however, is largely irrelevant, because any private organization
that accepts federal TANF funds will be subject to Section 504 of the
Rehabilitation Act.
It may also be unclear whether private-public “partnerships”
in the TANF and Welfare-to-Work programs are public entities under Title
II. The answer will largely
depend on what those partnerships do. If they operate programs that deliver services to clients,
they should be treated as public entities.
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