Chapter
6: Qualified Individual with a Disability
A.
In General
Title II prohibits discrimination against a “qualified
individual with a disability,”[436] which is defined as “an individual 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, or meets the essential
eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public entity.”[437]
Two things are noteworthy about this definition.
First, some of the substantive prohibitions of Title II, like the
reasonable modification requirement, are incorporated into the
definition of who is protected under Title II. As a result, many Title
II cases are decided on the basis that individuals do not fall within
the class of people protected by Title II when, in fact, courts are
considering the merits of the discrimination claim. Second, many of the
core Title II concepts are interrelated. As a result, a court’s application of any one of these
concepts in a case will often decide the entire case.
Congress used the phrase “qualified individual with a
disability,” in Title II, instead of
“otherwise qualified individual with a disability,” the
language used in Section 504 of the Rehabilitation Act, [438]
for a reason.[439]
The purpose of both requirements is to make clear that the
physical effects of a person’s disability may be taken into account
when determining whether an individual can meet essential eligibility
requirements of a program and whether the individual poses a significant
risk to others.[440]
To use a classic example from the employment area, it would not
be discriminatory to refuse to hire a person who is blind for a position
as a bus driver. Seeing is obviously an essential eligibility
requirement for driving, and a person who is blind cannot meet that
requirement or perform the job without posing a significant risk to
others.
Some courts, however, have interpreted the “otherwise
qualified” language of Section 504 in a manner that defeats many other
types of discrimination claims. In
Southeastern Community College v.
Davis,[441]
an early Section 504 case involving an deaf applicant to nursing school,
the Supreme Court held that “an otherwise qualified person is one who
is able to meet all of a program’s requirements in spite of his
handicap.”[442]
The Court also made clear, however, that some program
requirements were not essential and deprived qualified individuals with
disabilities the opportunity to participate, and in those cases it would
be discriminatory to refuse to make reasonable modifications to program
requirements.[443]
Nevertheless, some courts have interpreted the “in spite of”
language in Davis literally,
holding, for example, that Section 504 does not apply to or prohibit
discrimination in programs designed specifically for individuals with
disabilities, because in such cases plaintiffs are seeking services
because of a disability, not “in spite of” it.[444]
Despite the use of different language in Title II, some courts
have interpreted Title II narrowly.[445] When
necessary, advocates should argue that Title II should not be
interpreted in this restrictive manner and point to the difference in
the language of the two statutes.
Title II makes clear that an individual is a “qualified
individual” even if a reasonable modification is needed to meet
program eligibility requirements. The determination of whether an
individual is qualified must be made after
the effect of any possible reasonable modifications are considered.
For example, if a program requires application for services be
filled out in person at a program office and an individual has a
mobility impairment that prevents her from traveling to that office to
fill out the application, the question of whether the individual is
qualified for services can only be made after she is provided with a
reasonable modification of that rule, such as allowing her to complete
an application over the telephone, or through the mail, or allowing
another person to travel to the office to fill out the application on
her behalf. The fact that she cannot fulfill that requirement does not
make her unqualified under Title II for the program to which she is
applying.
Title II Interpretive Guidance states that people who pose “a
significant risk to others will not be ‘qualified,’ if reasonable
modifications to the public entity’s policies, practices or procedures
will not eliminate the risk.”[446] Title II regulations do not contain this
exception, but Titles I and III of the ADA both contain exceptions for
individuals who pose a “direct threat,”[447]
and the Department of Justice (DOJ) assumes that a similar exception
applies to Title II. According
to DOJ, the determination that an individual poses a direct threat must
be individualized and based on current medical evidence. Further, it
must consider the nature, duration, and severity of risk, the
probability that the potential injury will occur, and whether reasonable
modifications of policies, practices, and procedures can reduce or
eliminate the risk.[448]
Courts have applied the “direct threat” concept in Title II cases.[449]
Program requirements are not necessarily essential just because a
state or local government program says they are.
In the words of one court in a Section 504 employment
discrimination case, defendants cannot “merely mechanically invoke any
set of requirements and pronounce the handicapped applicant or
prospective employee unqualified. The
district court must look behind the qualification.
To do otherwise reduces the term ‘otherwise qualified’ and
any arbitrary set of requirements to a tautology.”[450]
The DOJ has made clear in Interpretive Guidance that the
essential eligibility requirements for many state and local government
programs are minimal, as when the nature of the program or service is to
provide information to the public. But essential eligibility
requirements will be more complex where questions of safety are
involved.[451]
There are a number of cases in which the essential eligibility
requirements for Title II programs have been held to be minimal, and
thereby enabled plaintiffs to pursue ADA claims and obtain reasonable
modifications.[452]
Many Title II cases turn on the definition of “qualified
individual with a disability.” However, courts have reached opposite
conclusions in cases with similar facts about whether particular program
requirements were essential. For example, in Howard v. Department of Public Welfare,[453] children with learning and other disabilities
challenged a provision in a state’s AFDC program that provided
benefits to children who were 18 years old only when they were full-time
students in secondary school or in an equivalent program and were
expected to graduate by age 19. Plaintiffs
were not expected to graduate before their 19th birthdays because they
had repeated grades at school for reasons related to their disabilities.
The Supreme Court of Vermont held that plaintiffs were
“qualified individuals” who were entitled to continue receiving AFDC
benefits until age 19 as a reasonable modification of the rule.[454]
The court reasoned that plaintiffs were qualified because they
met all program criteria except the expected graduation date, which had
a “particular exclusionary effect” on and “screened out”
children with disabilities, and was not necessary to provide the
benefits.[455]
The court gave several additional reasons for its ruling,
including: federal law did not prohibit states from providing benefits
to 18 year olds who were not expected to graduate by age 19, but rather
prohibited using federal funds for this purpose;[456] the defendant had not put forth evidence that
that HHS, the federal agency administering AFDC, was not willing to make
reasonable modifications to its own rule; and, most importantly, that
the purpose of AFDC was to support needy children and this purpose would
not be fundamentally altered by providing benefits to 18 year olds with
disabilities.[457]
In contrast, a federal district court in Aughe
v. Shalala [458] came to the opposite conclusion on identical
facts. The court held that
plaintiffs were not qualified individuals because the graduation
requirement was essential. The
court reasoned that the purpose of AFDC was to help needy children and
their families, and the exclusion of those 18 and over allowed programs
to maintain their “fiscal viability.”[459] B.
Qualified Individual with a Disability in TANF Programs
The question of whether individuals with disabilities are
“qualified individuals” under Title II will depend on which aspect
of the TANF program is at issue in a discrimination claim. If the
application process has a discriminatory effect on people with
disabilities, individuals are not required to show that they ultimately
qualify for TANF benefits in order to challenge discrimination in the
application process. If a
benefits program gives anyone the right to fill out an application and
receive an eligibility determination, the only essential requirement is
the desire to apply for services.[460] The
fact that the individual may ultimately be found to be ineligible for
those services is irrelevant.[461] ADA
challenges have been brought to application and screening processes of
state and local government programs, and the question of whether
plaintiffs were qualified by the ADA was not an issue.[462]
In other types of ADA cases involving TANF programs,
demonstrating that an individual is a qualified individual with a
disability may be more onerous. For example, if a particular vocational
training program requires participants to have a high school diploma or
equivalent and an individual with a disability has neither, the
individual is not a “qualified individual with a disability,”
provided this requirement is essential for the participating in and
benefiting from the training program.[463]
The question of whether clients receiving TANF are “qualified
individuals” with disabilities is likely to arise under TANF in the
context of work requirements, benefits, and sanctions.
For example, states may argue that plaintiffs with disabilities
who cannot satisfy work requirements are not “qualified individuals”
who are entitled to benefits, or that individuals who have been
sanctioned for such non-compliance are not “qualified individuals”
entitled to extensions of benefits beyond a time limit.[464]
These topics are discussed further in Chapters 16 and 17. Back to the top [439]. See S. Rep. No. 101-116, at 44-45 (1989); H.R. Rep. No. 101-485(II), at 85 (1990), reprinted in U.S.C.C.A.N. 267, 368. [444]. See, e.g., Doe v. Pfrommer, 148 F.3d 73 (2d Cir. 1998); Grzan v. Charter Hosp. of Northwest Indiana, 104 F.3d 116 (7th Cir. 1997); Johnson v. Thompson, 971 F.2d 1487 (10th Cir. 1992); United States v. Univ. Hosp. State Univ. of New York at Stony Brook, 729 F.2d 144 (2d Cir. 1984). The more reasoned approach, taken in cases such as Wagner v. Fair Acres Geriatric Ctr., 49 F.3d 1002 (3d Cir. 1995), is that discrimination on the basis of disability is actionable under Section 504 and the relevant focus is the reason why an individual was treated less favorable than others, not the nature of the program or service. In Olmstead v. L.C., 527 U.S. 581 (1999), a majority of the Supreme Court rejected the view that the ADA does not reach discrimination in programs designed specifically for people with disabilities. See infra Part II.10.B, C. [445]. See, e.g., Easley v. Snider, 36 F.3d 297 (3d Cir. 1994); Aughe v. Shalala, 885 F. Supp. 1428 (W.D. Wash. 1995). [446]. 28 C.F.R. § 35.104 (1999). See also ADA Title II Technical Assistance Manual, supra note 254, at § II 2.8000 (“[A]n individual who poses a direct threat to the health and safety of others will not be ‘qualified”). [449]. See e.g. Bay Area Addiction Research and Treatment, Inc. v. City of Antioch, 179 F.3d 725, 735-37 (9th Cir. 1999) (holding that the significant risk test, otherwise known as the direct threat test, must be applied when determining whether plaintiffs are entitled to the ADA's protections). [450]. Pandazides v. Virginia Bd. of Educ., 946 F.2d 345, 349 (4th Cir. 1991), on remand, 804 F. Supp. 794 (E.D. Va. 1992), rev’d on other grounds, 13 F.3d 823 (4th Cir. 1994). [452]. See Heather K. v. City of Mallard, 887 F. Supp. 1249, 1262 (N.D. Iowa, 1995) (essential eligibility requirements for receiving services from a city were being present in the city and seeking to use services); Concerned Parents to Save Dreher Park Ctr. v. City of West Palm Beach, 846 F. Supp. 986, 990 (S.D. Fla. 1994) (essential eligibility requirement for city recreation programs was requesting services from the program, and it was irrelevant that a child with a disability may not be able to play each of the sports included in the program); Tugg v. Towey, 864 F. Supp. 1201, 1205 (S. D. Fla. 1994) (individuals are qualified for county mental health program because they reside in the county and are eligible to receive mental health services); Coleman v. Zatechka, 824 F. Supp. 1360, 1368 (D. Neb. 1993) (essential eligibility requirements for university housing were admission to university and application for housing). [459]. See id. at 1431. Chapter 10 contains an extensive discussion of the Title II’s “reasonable modification” requirement, which is the flip side of the “qualified individual” and “essential eligibility requirements” concepts. [460]. Cf. Concerned Parents to Preserve Dreher Park Ctr., 846 F. Supp. at 990 (the only essential eligibility requirement of a city’s recreational program is the request for services). [461]. Unfortunately, the OCR TANF Guidance is less clear than it might be on this issue. It states that an individual is qualified if he or she “meets the essential eligibility requirements for receipt of services or participation in the program or activity.” Elsewhere however, it makes clear that the ADA applies to the application process. See OCR TANF Guidance, supra note 242, Technical Assistance § V. [462]. See, e.g., Hunsaker v. County of Contra Costa, No. C-95-1082 MMC, 1997 WL 835164 (N.D. Cal. July 31, 1997) (challenge to substance abuse screening form used in application process for public assistance), rev’d on other grounds, 149 F.3d 1041 (9th Cir. 1998); Henrietta D. v. Giuliani, No. 95-CV-0641-SJ, 1996 U.S. Dist. LEXIS 22373 (E.D.N.Y. Oct. 25, 1996) (challenge to operation of program within public assistance agency that assists people with HIV in applying for benefits), later op., 2000 U.S. Dist. LEXIS 13382 (E.D.N.Y. 2000). In addition, numerous cases have challenged bar application requirements. See, e.g., Clark v. Virginia Bd. of Law Exam’rs, 880 F. Supp. 430 (E.D. Va. 1995); Applicants v. Texas State Bd. of Bar Exam’rs, No. 93-CA-74055, 1994 U.S. Dist. LEXIS 21290 (W.D. Tex. Oct. 10, 1994); Ellen S. v. Florida Bd. of Bar Exam’rs, 859 F. Supp. 1489 (S.D. Fla. 1994). |
