The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

Congressional research reportMar 22, 2012

Ask Donna

What actually matters in this document.

Text

The Americans with Disabilities Act (ADA):

Statutory Language and Recent Issues

Cynthia Brougher

Legislative Attorney

March 22, 2012

Congressional Research Service

7-....

www.crs.gov

98-921

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

Summary

The Americans with Disabilities Act (ADA) provides broad nondiscrimination protection in

employment, public services, public accommodations and services operated by private entities,

transportation, and telecommunications for individuals with disabilities. This report summarizes

the major provisions of the ADA and analyzes selected recent issues, including the Supreme

Court cases and the ADA Amendments Act of 2008.

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

Contents

Background ...................................................................................................................................... 1

Definition of Disability .................................................................................................................... 2

Statutory Language .................................................................................................................... 2

Definition Language ............................................................................................................ 2

Statement of Findings and Purposes Regarding the Definition........................................... 3

Major Life Activities ........................................................................................................... 4

Regarded as Having a Disability ......................................................................................... 4

Regulatory Authority to Promulgate Regulations Regarding the Definition

of Disability...................................................................................................................... 5

Title V Provisions on the Definition of Disability............................................................... 5

Supreme Court Cases ................................................................................................................ 6

Bragdon v. Abbott ................................................................................................................ 6

Sutton v. United Airlines, Murphy v. United Parcel Service, and Albertsons, Inc. v

Kirkingburg ...................................................................................................................... 7

Toyota Motor Manufacturing of Kentucky v. Williams ........................................................ 7

Application of the Eleventh Amendment to the ADA ..................................................................... 8

Employment ..................................................................................................................................... 9

General Requirements ............................................................................................................... 9

Statutory and Regulatory Requirements.............................................................................. 9

Clackamas Gastroenterology Associates P.C. v. Wells ...................................................... 11

Other Supreme Court Employment Cases ............................................................................... 12

Receipt of SSI Benefits ..................................................................................................... 12

“Qualified” Individual with a Disability ........................................................................... 13

Collective Bargaining Agreements .................................................................................... 14

Reasonable Accommodations and Seniority Systems ....................................................... 14

Rehiring of Individual Who Has Been Terminated for Illegal Drug Use .......................... 15

Employment Inquiries Relating to a Disability ....................................................................... 15

Defenses to a Charge of Discrimination .................................................................................. 16

Drugs, Alcohol, and Employer Conduct Rules........................................................................ 17

Remedies ................................................................................................................................. 18

Public Services............................................................................................................................... 19

General Requirements ............................................................................................................. 19

Supreme Court Cases .............................................................................................................. 21

Other Title II Cases .................................................................................................................. 22

Transportation Provisions ........................................................................................................ 22

Remedies ................................................................................................................................. 23

Barnes v. Gorman .............................................................................................................. 23

Public Accommodations ................................................................................................................ 24

General Requirements ............................................................................................................. 24

Bragdon v. Abbott and Direct Threats to Health and Safety .................................................... 25

Martin v. PGA Tour and “Fundamental Alteration” ................................................................ 26

Spector v. Norwegian Cruise Line, Ltd. and the Application of the ADA to Foreign

Cruise Ships.......................................................................................................................... 27

ADA and the Internet............................................................................................................... 28

Vexatious Litigation................................................................................................................. 29

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

Other Judicial Decisions .......................................................................................................... 30

Remedies ................................................................................................................................. 30

Telecommunications ...................................................................................................................... 31

Title V ............................................................................................................................................ 31

Statutory Provisions................................................................................................................. 31

Buckhannon Board and Care Home, Inc. v. West Virginia and Attorneys’ Fees ...................... 33

Legislation Relating to the ADA in the 112th Congress ................................................................. 34

Contacts

Author Contact Information........................................................................................................... 35

Acknowledgments ......................................................................................................................... 35

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

Background

The Americans with Disabilities Act, ADA, 42 U.S.C. §§12101 et seq., has often been described

as the most sweeping nondiscrimination legislation since the Civil Rights Act of 1964. It provides

broad nondiscrimination protection in employment, public services, public accommodations and

services operated by private entities, transportation, and telecommunications for individuals with

disabilities.1 As stated in the act, its purpose is “to provide a clear and comprehensive national

mandate for the elimination of discrimination against individuals with disabilities.” Enacted on

July 26, 1990, the majority of the ADA’s provisions took effect in 1992.2 The ADA Amendments

Act, P.L. 110-325, was enacted on September 25, 2008, to respond to a series of Supreme Court

decisions that had interpreted the definition of disability narrowly.3

The Supreme Court has decided 20 ADA cases.4 In the most recent Supreme Court decision,

United States v. Georgia,5 the Court held that Title II of the ADA created a private cause of action

for damages against the states for conduct that actually violated the Fourteenth Amendment.

However, the Court did not reach the issue of whether the Eleventh Amendment permits a

prisoner to secure money damages from a state for state actions that violate the ADA but not the

Constitution. In addition, the Supreme Court decided Arbaugh v. Y. & H Corp.,6 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,7 to

determine whether an individual with a disability who cannot perform her current job must be

reassigned to a vacant, equivalent position without competing with other workers. However, the

Court dismissed the petition since the case was settled prior to oral argument. Currently, there is a

The ADA and Section 504 of the Rehabilitation Act of 1973, however, have not been found to cover medical

treatment decisions. See e.g. Burger v. Bloomberg, 418 F.3d 882 (8th Cir. 2005); McElroy v. Patient Selection

Committee of the Nebraska Medical Center, 2007 U.S. Dist. LEXIS 86321 (D. Nebraska November 21, 2007)(an

individual with mental illness was denied a kidney transplant on medical grounds).

42 U.S.C. §12102(b)(1).

For a more detailed discussion of P.L. 110-325, see CRS Report RL34691, The ADA Amendments Act: P.L. 110-325,

by (name redacted) and (name redacted).

The ADA cases decided by the Supreme Court are: Bragdon v. Abbott, 524 U.S. 624 (1998); Pennsylvania

Department of Prisons v. Yeskey, 524 U.S. 206 (1998); Wright v. Universal Maritime Service Corp., 525 U.S. 70

(1998); Cleveland v. Policy Management Systems, 526 U.S. 795 (1999); Olmstead v. L.C., 527 U.S. 581 (1999);

Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999); Sutton v. United Air Lines, Inc., 527 U.S. 471(1999);

Albertson’s Inc. v. Kirkingburg, 527 U.S. 555 (1999); Garrett v. University of Alabama, 531 U.S. 356 (2001); PGA

Tour v. Martin, 532 U.S. 661 (2001); Buckhannon Board and Care Home, Inc. v. West Virginia Department of Human

Resources, 532 U.S. 598 (2001); U.S. Airways Inc. v. Barnett, 535 U.S. 391 (2002); Toyota Motor Manufacturing v.

Williams, 534 U.S. 184 (2002); Chevron USA Inc. v. Echazabal, 536 U.S. 73 (2002); Barnes v. Gorman, 536 U.S. 181

(2002); Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S 440 (2003); Tennessee v. Lane, 541 U.S. 509

(2004); Raytheon Co. v. Hernandez, 540 U.S. 44 (2003); Spector v. Norwegian Cruise Line, Ltd., 545 U.S. 119 (2005);

and United States v. Georgia, 546 U.S. 151 (2006). For a discussion limited to Supreme Court decisions on the ADA,

see CRS Report RL31401, The Americans with Disabilities Act: Supreme Court Decisions, by (name redacted).

546 U.S. 151 (2006).

Arbaugh v. Y.& H. Corp., 546 U.S. 500 (2006).

486 F.3d 480 (8th Cir. 2007), cert. granted, 552 U.S. 1074 (2007); cert. dismissed, 552 U.S. 1136 (2008).

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

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.8

Before examining the provisions of the ADA and these cases, it is important to briefly note the

ADA’s historical antecedents. A federal statutory provision which existed prior to the ADA,

Section 504 of the Rehabilitation Act of 1973, prohibits discrimination against an otherwise

qualified individual with a disability, solely on the basis of the disability, in any program or

activity that receives federal financial assistance, the executive agencies or the U.S. Postal

Service.9 Many of the concepts used in the ADA originated in Section 504 and its interpretations;

however, there is one major difference. While Section 504’s prohibition against discrimination is

tied to the receipt of federal financial assistance, the ADA also covers entities not receiving such

funds. In addition, the federal executive agencies and the U.S. Postal Service are covered under

Section 504, not the ADA. The ADA contains a specific provision stating that except as otherwise

provided in the act, nothing in the act shall be construed to apply a lesser standard than the

standards applied under Title V of the Rehabilitation Act (which includes Section 504) or the

regulations issued by federal agencies pursuant to such Title.10

The ADA is a civil rights statute; it does not provide grant funds to help entities comply with its

requirements. It does include a section on technical assistance which authorizes grants and awards

for the purpose of technical assistance such as the dissemination of information about rights under

the ADA and techniques for effective compliance.11 However, there are tax code provisions which

may assist certain businesses or individuals.12

Definition of Disability

Statutory Language

Definition Language

The definitions in the ADA, particularly the definition of “disability,” are the starting point for an

analysis of rights provided by the law.13 The term “disability,” with respect to an individual, is

See e.g., Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999), holding that a vacant position automatically

goes to a qualified individual with a disability; EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024 (7th Cir. 2000), holding

that an employer does not have to “turn away a superior applicant.”

29 U.S.C. §794. For a more detailed discussion of Section 504, see CRS Report RL34041, Section 504 of the

Rehabilitation Act of 1973: Prohibiting Discrimination Against Individuals with Disabilities in Programs or Activities

Receiving Federal Assistance, by (name redacted).

42 U.S.C. §12201(a).

42 U.S.C. §12206.

See CRS Report RS21006, Business Tax Provisions That Benefit Persons with Disabilities, by (name redacted),

and CRS Report RS20555, Additional Standard Tax Deduction for the Blind: A Description and Assessment, by

(name redacted) and (name redacted). See also GAO Report GAO-03-39, “Business Tax Incentives: Incentives to

Employ Workers with Disabilities Receive Limited Use and Have an Uncertain Impact” (December 2002).

The issue of whether the ADA definition of disability would cover individuals who are discriminated against due to a

genetic condition is of less importance since the enactment of the Genetic Information Nondiscrimination Act of 2008

(GINA), P.L. 110-233. For a discussion of this act, see CRS Report RL34584, The Genetic Information

Nondiscrimination Act of 2008 (GINA), by (name redacted) and (name redacted), and CRS Report R40116,

The

(continued...)

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

defined as “(A) a physical or mental impairment that substantially limits one or more of the major

life activities of such individual; (B) a record of such an impairment; or (C) being regarded as

having such an impairment (as described in paragraph (3)).”14 The definition of disability was the

subject of numerous cases brought under the ADA including major Supreme Court decisions

which generally interpreted the definition narrowly. Due to these interpretations, Congress

enacted the ADA Amendments Act, which kept essentially the same statutory language but

contains new rules of construction regarding the definition of disability. These rules of

construction provide that

•

the definition of disability shall be construed in favor of broad coverage to the

maximum extent permitted by the terms of the act;

•

the term “substantially limits” shall be interpreted consistently with the findings

and purposes of the ADA Amendments Act;

•

an impairment that substantially limits one major life activity need not limit other

major life activities to be considered a disability;

•

an impairment that is episodic or in remission is a disability if it would have

substantially limited a major life activity when active;

•

the determination of whether an impairment substantially limits a major life

activity shall be made without regard to the ameliorative effects of mitigating

measures, except that the ameliorative effects of ordinary eyeglasses or contact

lenses shall be considered.15

The final EEOC regulations track the statutory definition but also provide some clarifying

interpretations. For example, the operation of major bodily functions is included in the definition

of major life activities. In addition, although the EEOC emphasizes the ADAAA’s requirement for

an individualized assessment, the regulations list some impairments that will almost always be

determined to be a disability. These include deafness, blindness, an intellectual disability, missing

limbs or mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy,

diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive

disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and

schizophrenia.16

Statement of Findings and Purposes Regarding the Definition

The findings of the ADA Amendments Act include statements indicating that the Supreme Court

decisions in Sutton v. United Air Lines, Inc.,17 and Toyota Motor Manufacturing v. Williams18 as

(...continued)

Genetic Information Nondiscrimination Act of 2008: Selected Issues, by (name redacted).

42 U.S.C. §12102(3) as amended by P.L. 110-325, §4(a). For a more detailed discussion of these amendments, see

CRS Report RL34691, The ADA Amendments Act: P.L. 110-325, by (name redacted) and (name redacted).

Low vision devices are not included in the ordinary eyeglasses and contact lens exception.

New 29 C.F.R. §1630.2(j)(3)(iii); 76 Federal Register 17001 (March 25, 2011). For an analysis of the final

regulations, CRS Report R41757, The ADA Amendments Act Definition of Disability: Final EEOC Regulations , by

(name redacted).

527 U.S. 471 (1999).

534 U.S. 184 (2004).

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

well as lower court cases have narrowed and limited the ADA from what was intended by

Congress. The codified findings in the original ADA are 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. 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 EEOC has promulgated regulations under the ADA Amendments Act which

change the definition of “substantially limits.”19

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 former EEOC regulations defining

substantially limits as “significantly restricted” are specifically rejected in the new law.

Major Life Activities

The ADA Amendments Act specifically lists examples of major life activities including caring for

oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting,

bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and

working. The act also states that a major life activity includes the operation of a major bodily

function. The House Judiciary Committee report indicates that “this clarification was needed to

ensure that the impact of an impairment on the operation of major bodily functions is not

overlooked or wrongly dismissed as falling outside the definition of ‘major life activities’ under

the ADA.”20 There had been judicial decisions which found that certain bodily functions had not

been covered by the definition of disability. For example, in Furnish v. SVI Sys., Inc.,21 the

Seventh Circuit held that an individual with cirrhosis of the liver due to infection with Hepatitis B

was not an individual with a disability because liver function was not “integral to one’s daily

existence.”

Regarded as Having a Disability

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

76 Federal Register 16978 (March 25, 2011). For an analysis of the final regulations, CRS Report R41757, The ADA

Amendments Act Definition of Disability: Final EEOC Regulations , by (name redacted).

H.Rept. 110-730, Part 2, at 16 (2008).

270 F.3d 445 (7th Cir. 2001).

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

construction in Title V of the ADA that a covered entity under Title I,22 a public entity under Title

II, or a person who operates a place of public accommodation under Title III, need not provide a

reasonable accommodation or a reasonable modification to policies, practices, or procedures to an

individual who meets the definition of disability solely under the “regarded as” prong of the

definition.

Regulatory Authority to Promulgate Regulations Regarding the Definition

of Disability

The Supreme Court in Sutton questioned the authority of regulatory agencies to promulgate

regulations for the definition of disability in the ADA. The definition of disability is contained in

Section 3 of the ADA, and the ADA does not specifically give any agency the authority to

interpret the definitions in Section 3, including the definition of disability. The Supreme Court

declined to address this issue since, as both parties to Sutton accepted the regulation as valid, “we

have no occasion to consider what deference they are due, if any.” The ADA Amendments Act

specifically grants regulatory authority and states that “[t]he authority to issue regulations granted

to the Equal Employment Opportunity Commission, the Attorney General, and the Secretary of

Transportation under this Act, includes the authority to issue regulations implementing the

definitions contained in sections 3 and 4.”

Title V Provisions on the Definition of Disability

The definition of “disability” was further elaborated in Title V of the ADA. Section 510 provides

that the term “individual with a disability” in the ADA does not include an individual who is

currently engaging in the illegal use of drugs when the covered entity acts on the basis of such

use.23 An individual who has been rehabilitated would be covered. However, the conference

report language clarifies that the provision does not permit individuals to invoke coverage simply

by showing they are participating in a drug rehabilitation program; they must refrain from using

drugs.24 The conference report also indicates that the limitation in coverage is not intended to be

narrowly construed to only persons who use drugs “on the day of, or within a matter of weeks

before, the action in question.”25 The definitional section of the Rehabilitation Act was also

amended to create uniformity with this definition.

Section 508 provides that an individual shall not be considered to have a disability solely because

that individual is a transvestite.26 Section 511 similarly provides that homosexuality and

bisexuality are not disabilities under the act and that the term disability does not include

transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not

resulting from physical impairments, or other sexual behavior disorders, compulsive gambling,

Title I of the ADA covers employment, Title II covers states and localities, and Title III covers places of public

accommodations such as grocery stores, doctors’ offices, and movie theaters.

42 U.S.C. §12210.

H.Rept. 101-596, 101st Cong., 2d Sess. 64; 1990 U.S. Code Cong. & Ad. News 573.

Id.

42 U.S.C. §12208.

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

kleptomania, or pyromania, or psychoactive substance use disorders resulting from current illegal

use of drugs.27

Supreme Court Cases

The Supreme Court has decided several cases relating to the definition of disability. The first

ADA case to address the definitional issue was Bragdon v. Abbott, a case involving a dentist who

refused to treat an HIV infected individual outside of a hospital.28 In Bragdon, the Court found

that the plaintiff’s asymptomatic HIV infection was a physical impairment impacting on the

major life activity of reproduction thus rending HIV infection a disability under the ADA. The

other decisions—Sutton v. United Airlines,29 Murphy v. United Parcel Service, Inc.,30 Albertsons

Inc. v. Kirkingburg,31 and Toyota Motor Manufacturing v. Williams32—all involved issues which

Congress later addressed in the ADA Amendments Act. Thus, although these decisions are of

historical interest, especially regarding the impetus for the enactment of the ADA Amendments

Act, they can no longer be assumed to be valid precedent and therefore will only be briefly

discussed here.

Bragdon v. Abbott

The Supreme Court in Bragdon v. Abbott addressed the ADA definition of individual with a

disability and held that the respondent’s asymptomatic HIV infection was a physical impairment

impacting on the major life activity of reproduction thus rendering the HIV infection a disability

under the ADA.33 In 1994, Dr. Bragdon performed a dental examination on Ms. Abbott and

discovered a cavity. Ms. Abbott had indicated in her registration form that she was HIV positive

but at that time she was asymptomatic. Dr. Bragdon told her that he would not fill her cavity in

his office but would treat her only in a hospital setting. Ms. Abbott filed an ADA complaint and

prevailed at the district court, courts of appeals and the Supreme Court on the issue of whether

she was an individual with a disability but the case was remanded for further consideration

regarding the issue of direct threat.

In arriving at its holding, Justice Kennedy, writing for the majority, first looked to whether Ms.

Abbott’s HIV infection was a physical impairment. Noting the immediacy with which the HIV

virus begins to damage an individual’s white blood cells, the Court found that asymptomatic HIV

infection was a physical impairment. Second, the Court examined whether this physical

impairment affected a major life activity and concluded that the HIV infection placed a

substantial limitation on her ability to reproduce and to bear children and that reproduction was a

major life activity. Finally, the Court examined whether the physical impairment was a substantial

limitation on the major life activity of reproduction. After evaluating the medical evidence, the

Court concluded that Ms. Abbott’s ability to reproduce was substantially limited in two ways: (1)

42 U.S.C. §12211.

524 U.S. 624 (1998). For a more detailed discussion of this decision, see CRS Report 98-599, The Americans with

Disabilities Act: HIV Infection is Covered Under the Act, by (name redacted).

527 U.S. 471 (1999). Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2004).

527 U.S. 516 (1999).

527 U.S. 555 (1999).

534 U.S. 184 (2002).

524 U.S. 624 (1998).

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

an attempt to conceive would impose a significant risk on Ms. Abbott’s partner, and (2) an HIV

infected woman risks infecting her child during gestation and childbirth.34

Sutton v. United Airlines, Murphy v. United Parcel Service, and

Albertsons, Inc. v Kirkingburg

Three Supreme Court decisions in 1999 addressed the definition of disability and specifically

discussed the concept of mitigating measures. Sutton v. United Air Lines involved sisters who

were rejected from employment as pilots with United Air Lines because they wore eyeglasses.

The Supreme Court in Sutton examined the definition of disability used in the original ADA and

found that the determination of whether an individual has a disability should be made with

reference to measures that mitigate the individual’s impairment. The Sutton Court stated: ‘“a

disability’ exists only where an impairment ‘substantially limits’ a major life activity, not where it

‘might,’ ‘could,’ or ‘would’ be substantially limiting if mitigating measures were not taken.” The

Court also emphasized that the statement of findings in the ADA that some 43,000,000 Americans

have one or more physical or mental disability “requires the conclusion that Congress did not

intend to bring under the statute’s protection all those whose uncorrected conditions amount to

disabilities.”

Similarly, in Murphy v. United Parcel Service, Inc., the Court held that the fact that an individual

with high blood pressure was unable to meet the Department of Transportation (DOT) safety

standards was not sufficient to create an issue of fact regarding whether an individual is regarded

as unable to utilize a class of jobs. The Court in Murphy found that an employee is regarded as

having a disability if the covered entity mistakenly believes that the employee’s actual,

nonlimiting impairment substantially limits one or more major life activities. And in the last of

this trilogy of 1999 cases, the Court in Albertsons v. Kirkingburg held that a trucker with

monocular vision who was able to compensate for this impairment was not a person with a

disability.

Toyota Motor Manufacturing of Kentucky v. Williams

In the 2002 case of Toyota Motor Manufacturing v. Williams, the meaning of “substantially

limits” was examined, and Justice O’Connor, writing for the unanimous Court, determined that

the word substantial “clearly precluded impairments that interfere in only a minor way with the

performance of manual tasks.” The Court also found that the term “major life activity” “refers to

those activities that are of central importance to daily life.” Finding that these terms are to be

“interpreted strictly,” the Court held that “to be substantially limited in performing manual tasks,

an individual must have an impairment that prevents or severely restricts the individual from

doing activities that are of central importance to most people’s daily lives.”

Another major issue addressed in Bragdon involved the interpretation of the ADA’s direct threat exemption which

will be discussed in the section on public accommodations. For a more detailed discussion of Bragdon, see CRS Report

98-599, The Americans with Disabilities Act: HIV Infection is Covered Under the Act, by (name redacted).

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

Application of the Eleventh Amendment to

the ADA

The Eleventh Amendment states: “The Judicial power of the United States shall not be construed

to extend to any suit in law or equity, commenced or prosecuted against one of the United States

by Citizens of another State, or by Citizens or Subjects of any Foreign State.” The Supreme Court

has found that the Eleventh Amendment cannot be abrogated by the use of Article I powers but

that Section 5 of the Fourteenth Amendment can be used for abrogation in certain circumstances.

Section 5 of the Fourteenth Amendment states: “The Congress shall have the power to enforce, by

appropriate legislation, the provisions of this article.”

The circumstances where Section 5 of the Fourteenth Amendment can be used to abrogate the

Eleventh Amendment were discussed in the Supreme Court decisions in College Savings Bank v.

Florida Prepaid Postsecondary Educ. Expense Board,35 Florida Prepaid Postsecondary Educ.

Expense Board v. College Savings Bank,36 and Kimel v. Florida Board of Regents.37 They

reiterated the principle that the Congress may abrogate state immunity from suit under the

Fourteenth Amendment and found that there were three conditions necessary for successful

abrogation.

•

Congressional power is limited to the enactment of “appropriate” legislation to

enforce the substantive provisions of the Fourteenth Amendment.

•

The legislation must be remedial in nature.

•

There must be a “congruence and proportionality” between the injury to be

prevented and the means adopted to that end.

The ADA uses both the Fourteenth Amendment and the Commerce Clause of the Constitution as

its constitutional basis.38 It also specifically abrogates state immunity under the Eleventh

Amendment.39 The ADA, then, is clear regarding its attempt to abrogate state immunity; the issue

is whether the other elements of a successful abrogation are present. The Supreme Court in

Garrett v. University of Alabama found that they were not with regard to Title I while in

Tennessee v. Lane the Court upheld Title II as it applies to the access to courts.40 Most recently,

the Supreme Court in United States v. Georgia,41 held that Title II of the ADA created a private

527 U.S. 666 (1999) (The Trademark Remedy Clarification Act, TRCA, which subjected states to suit for false and

misleading advertising, did not validly abrogate state sovereign immunity; neither the right to be free from a business

competitor’s false advertising nor a more generalized right to be secure in one’s business interests qualifies as a

property right protected by the Due Process Clause).

527 U.S. 627 (1999)(Congress may abrogate state sovereign immunity but must do so through legislation that is

appropriate within the meaning of Section 5 of the Fourteenth Amendment; Congress must identify conduct that

violates the Fourteenth Amendment and must tailor its legislation to remedying or preventing such conduct).

528 U.S. 62 (2000).

42 U.S.C. §12101(b)(4). The Commerce Clause would not be sufficient authority on which to abrogate state

sovereign immunity since the Supreme Court’s decision in Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996).

42 U.S.C. §12202.

It should be noted that the Eleventh Amendment applies only to states, not municipalities. See e.g., Ability Center of

Greater Toledo v. City of Sandusky, 385 F.3d 901 (6th Cir. 2004).

546 U.S. 151 (2006).

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

cause of action for damages against the states for conduct that actually violates the Fourteenth

Amendment. However, the Court did not reach the issue of whether the Eleventh Amendment

permits a prisoner to secure money damages from a state for state actions that violate the ADA

but not the Constitution.

Employment

General Requirements

Statutory and Regulatory Requirements

Title I of the ADA, as amended by the ADA Amendments Act of 2008, provides that no covered

entity shall discriminate against a qualified individual on the basis of disability in regard to job

application procedures, the hiring, advancement, or discharge of employees, employee

compensation, job training, and other terms, conditions, and privileges of employment.42 The

term employer is defined as a person engaged in an industry affecting commerce who has 15 or

more employees.43 Therefore, the employment section of the ADA, unlike the section on public

accommodations, which will be discussed subsequently, is limited in scope to employers with 15

or more employees. This parallels the coverage provided in the Civil Rights Act of 1964. As

noted previously, the Supreme Court, in Arbaugh v. Y. & H. Corp.,44 held that the 15-employee

limitation in Title VII of the Civil Rights Act45 was not jurisdictional, but rather was related to the

substantive adequacy of a claim. Thus, if the defense that the employer employs fewer than 15

employees is not raised in a timely manner, a court is not obligated to dismiss the case. Because

the ADA’s 15-employee limitation language parallels that of Title VII, it is likely that a court

would interpret the ADA’s requirement in the same manner.

The term employee with respect to employment in a foreign country includes an individual who is

a citizen of the United States; however, it is not unlawful for a covered entity to take action that

constitutes discrimination with respect to an employee in a workplace in a foreign country if

compliance would cause the covered entity to violate the law of the foreign country.46

42 U.S.C. §12112(a), as amended by P.L. 110-325, §5. The ADA Amendments Act strikes the prohibition of

discrimination against a qualified individual with a disability because of the disability of such individual and substitutes

the prohibition of discrimination against a qualified individual “on the basis of disability.” The Senate Managers’

Statement noted that this change “ensures that the emphasis in questions of disability discrimination is properly on the

critical inquiry of whether a qualified person has been discriminated against on the basis of disability, and not unduly

focused on the preliminary question of whether a particular person is a ‘person with a disability.’” 153 CONG. REC. S

.8347 (September 11, 2008)(Statement of Managers to Accompany S. 3406, the Americans with Disabilities Act

Amendments Act of 2008). Two courts of appeal have held that the prohibition of discrimination in the “terms,

conditions, or privileges of employment” creates a viable cause of action for disability-based harassment. See Flowers

v. Southern Reg’l Physician Servs, Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th

Cir. 2001); Shaver v. Independent Stave Co., 350 F.3d 716 (8th Cir. 2003).

42 U.S.C. §12111(5).

Arbaugh v. Y. & H. Corp., 546 U.S. 500 (2006).

42 U.S.C. §2000e(b).

P.L. 102-166 added this provision.

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

If the issue raised under the ADA is employment related, and the threshold issues of meeting the

definition of an individual with a disability and involving an employer employing more than 15

individuals are met, the next step is to determine whether the individual is a qualified individual

with a disability who, with or without reasonable accommodation, can perform the essential

functions of the job.

Title I defines a “qualified individual with a disability.” Such an individual is “an individual with

a disability who, with or without reasonable accommodation, can perform the essential functions

of the employment position that such person holds or desires.”47 The ADA incorporates many of

the concepts set forth in the regulations promulgated pursuant to Section 504, including the

requirement to provide reasonable accommodation unless the accommodation would pose an

undue hardship on the operation of the business.48

“Reasonable accommodation” is defined in the ADA as including making existing facilities

readily accessible to and usable by individuals with disabilities, and job restructuring, part-time or

modified work schedules, reassignment to a vacant position, acquisition or modification of

equipment or devices, adjustment of examinations or training materials or policies, provision of

qualified readers or interpreters or other similar accommodations.49 “Undue hardship” is defined

as “an action requiring significant difficulty or expense.”50 Factors to be considered in

determining whether an action would create an undue hardship include the nature and cost of the

accommodation, the overall financial resources of the facility, the overall financial resources of

the covered entity, and the type of operation or operations of the covered entity.

Reasonable accommodation and the related concept of undue hardship are significant concepts

under the ADA and are one of the major ways in which the ADA is distinguishable from Title VII

jurisprudence. The statutory language paraphrased above provides some guidance for employers

but the details of the requirements have been the subject of numerous judicial decisions. In

addition, the EEOC issued detailed enforcement guidance on these concepts on March 1, 1999,51

which was amended on October 17, 2002, to reflect the Supreme Court’s decision in U.S. Airways

v. Barnett.52 Although much of the guidance reiterates long-standing EEOC interpretations in a

42 U.S.C. §1211(8). The EEOC has stated that a function may be essential because (1) the position exists to perform

the duty, (2) there are a limited number of employees available who could perform the function, or (3) the function is

highly specialized. 29 C.F.R. §1630(n)(2). A number of issues have been litigated concerning essential functions. For

example, some courts have found that regular attendance is an essential function of most jobs. See e.g., Carr v. Reno,

23 F.3d 525 (D.C.Cir. 1994), Brenneman v. Medcentral Health System, 366 F.3d 412 (6th Cir. 2004), cert. denied, 543

U.S. 1114 (2005)(“the record is replete with evidence of plaintiff’s excessive absenteeism, which rendered him

unqualified for that position.”) In Mulloy v. Acushnet Co., 460 F.3d 141 (1st Cir. 2006), the first circuit found that an

essential function of the job at issue included being physically present at the plant in order to perform troubleshooting

and take corrective actions and found that the plaintiff could not perform the job’s essential functions remotely. In

Frazier v. Simmons, 254 F.3d 1247 (10th Cir. 2001), the tenth circuit held that a crime investigator with MS was not

otherwise qualified to perform his job duties since it would be very difficult for him to stand or walk for prolonged

periods, to run or to physically restrain persons. Similarly, a nurse with a back injury that prevented her from lifting

more than 15 or 20 pounds was not a qualified individual with a disability since the ability to lift fifty pounds was an

essential function of her job. Phelps v. Optima Health, Inc., 251 F.3d 21 (1st Cir. 2001).

See 45 C.F.R. Part 84.

42 U.S.C. §12111(9).

42 U.S.C. §12111(10).

EEOC, “EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans

with Disabilities Act,” No. 915.002 (March 1, 1999).

http://www.eeoc.gov/policy/docs/accommodation.html#requesting.

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

question and answer format, the EEOC also took issue with some judicial interpretations.53

Notably the EEOC stated that

•

an employee who is granted leave as a reasonable accommodation is entitled to

return to his or her same position, unless this imposes an undue hardship; and

•

an employer is limited in the ability to question the employee’s documentation of

a disability (“An employer cannot ask for documentation when: (1) both the

disability and the need for reasonable accommodation are obvious, or (2) the

individual has already provided the employer with sufficient information to

substantiate that s/he has an ADA disability and needs the reasonable

accommodation requested.”).

Issues regarding the amount of money that must be spent on reasonable accommodations have

also arisen. The EEOC regulations54 and guidance provide that an employer does not have to

provide a reasonable accommodation that would cause an “undue hardship” to the employer.55

However, the Seventh Circuit in Vande Zande v. State of Wisconsin Department of

Administration56 found that the cost of the accommodation cannot be disproportionate to the

benefit. “Even if an employer is so large or wealthy—or, like the principal defendant in this case,

is a state, which can raise taxes in order to finance any accommodations that it must make to

disabled employees—that it may not be able to plead ‘undue hardship’, it would not be required

to expend enormous sums in order to bring about a trivial improvement in the life of a disabled

employee.”57

Clackamas Gastroenterology Associates P.C. v. Wells

The Supreme Court examined the definition of the term “employee” under the ADA in

Clackamas Gastroenterology Associates P.C. v. Wells.58 In Clackamas, the Court held in a 7-2

decision written by Justice Stevens, that the EEOC’s guidelines concerning whether a

shareholder-director is an employee were the correct standard to use. Since the evidence was not

clear, the case was remanded for further proceedings. Clackamas Gastroenterology Associates is a

medical clinic in Oregon that employed Ms. Wells as a bookkeeper from 1986-1997. After her

termination from employment, Ms. Wells brought an action alleging unlawful discrimination on

the basis of discrimination under Title I of the ADA. The clinic denied that it was covered by the

ADA since it argued that it did not have 15 or more employees for the 20 weeks per year required

by the statute. The determination of coverage was dependent on whether the four physicianshareholders who owned the professional corporation were counted as employees.

The Court first looked to the definition of employee in the ADA which states that an employee is

“an individual employed by an employer.”59 This definition was described as one which is

It should be emphasized that the EEOC’s guidance does not have the force of regulations and courts are not bound to

follow the guidance although some courts do defer to agency expertise.

29 C.F.R. §1630.9.

http://www.eeoc.gov/policy/docs/accommodation.html.

44 F.3d 538 (7th Cir. 1995).

Id. At 542-543. See also Schmidt v. Methodist Hospital of Indiana, 89 F.3d 342 (7th Cir. 1996), where the court found

that reasonable accommodation does not require an employer to provide everything an employee requests.

538 U.S. 440 (2003).

42 U.S.C. §12111(4).

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

“completely circular and explains nothing.” The majority then looked to common law,

specifically the common law element of control. This is the position advocated by the EEOC. The

EEOC has issued guidelines which list six factors to be considered in determining whether the

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.60

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.”

Other Supreme Court Employment Cases

Many of the Supreme Court decisions have involved employment situations although a number of

these cases did not reach past the threshold issue of whether the individual alleging employment

discrimination was an individual with a disability. There are still several significant employment

issues, such as reasonable accommodations, which have not been dealt with by the Court. In

addition, the landmark decision of University of Alabama v. Garrett on the application of the

Eleventh Amendment arose in the employment context.

Receipt of SSI Benefits

The relationship between the receipt of SSDI benefits and the ability of an individual to pursue an

ADA employment claim was the issue in Cleveland v. Policy Management Systems Corp, supra.

The Supreme Court unanimously held that pursuit and receipt of SSDI benefits does not

automatically stop a recipient from pursuing an ADA claim or even create a strong presumption

against success under the ADA. Observing that the Social Security Act and the ADA both help

individuals with disabilities but in different ways, the Court found that “despite the appearance of

conflict that arises from the language of the two statutes, the two claims do not inherently conflict

to the point where courts should apply a special negative presumption like the one applied by the

EEOC Compliance Manual §605:0009.

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

Court of Appeals here.” The fact that the ADA defines a qualified individual as one who can

perform the essential functions of the job with or without reasonable accommodation was seen as

a key distinction between the ADA and the Social Security Act. In addition, the Court observed

that SSDI benefits are sometimes granted to individuals who are working.

The Seventh Circuit, in Johnson v. ExxonmobilCorp.,61 applied the Supreme Court’s analysis in

Cleveland and distinguished the factual situations. In Cleveland the plaintiff had argued that she

had made consistent statements in her ADA claim and in the SSDI application; however, in

Johnson the Seventh Circuit found that the plaintiff had merely argued that “he was mistaken in

his SSDI application.” The court of appeals concluded that “Cleveland does not stand for the

proposition that defendants should be allowed to explain why they gave false statements on their

SSDI applications, which is essentially what Johnson seeks to do here.”62

“Qualified” Individual with a Disability

In Albertsons, Inc. v. Kirkingburg,63 the Supreme Court held that an employer need not adopt an

experimental vision waiver program. Title I of the ADA prohibits discrimination in employment

against a “qualified” individual with a disability. In finding that the plaintiff’s inability to comply

with the general regulatory vision requirements rendered him unqualified, the Court framed the

question in the following manner. “Is it reasonable ... to read the ADA as requiring an employer

like Albertsons to shoulder the general statutory burden to justify a job qualification that would

tend to exclude the disabled, whenever the employer chooses to abide by the otherwise clearly

applicable, unamended substantive regulatory standard despite the Government’s willingness to

waive it experimentally and without any finding of its being inappropriate?” Answering this

question in the negative, the Court observed that employers should not be required to “reinvent

the Government’s own wheel” and stated that “it is simply not credible that Congress enacted the

ADA (before there was any waiver program) with the understanding that employers choosing to

respect the Government’s sole substantive visual acuity regulation in the face of an experimental

waiver might be burdened with an obligation to defend the regulation’s application according to

its own terms.”

In Chevron U.S.A. Inc., v. Echazabal,64 the Supreme Court held unanimously that the ADA does

not require an employer to hire an individual with a disability if the job in question would

endanger the individual’s health. The ADA’s statutory language provides for a defense to an

allegation of discrimination that a qualification standard is “job related and consistent with

business necessity.”65 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

workplace66 but does not discuss a threat to the individual’s health or safety. The Ninth Circuit in

Echazabal had determined that an employer violated the ADA by refusing to hire an applicant

with a serious liver condition whose illness would be aggravated through exposure to the

426 F.3d 887 (7th Cir. 2005).

Id. at 892.

527 U.S. 555 (1999).

536 U.S. 73 (2002).

42 U.S.C. §12113(a).

42 U.S.C. §12113(b).

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

chemicals in the workplace.67 The Supreme Court rejected the Ninth Circuit decision and upheld

a regulation by the EEOC that allows an employer to assert a direct threat defense to an allegation

of employment discrimination where the threat is posed only to the health or safety of the

individual making the allegation.68 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.,69 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.”

Collective Bargaining Agreements

The interplay between rights under the ADA and collective bargaining agreements was the

subject of the Supreme Court’s decision in Wright v. Universal Maritime Service Corp., supra.

The Court held there that the general arbitration clause in a collective bargaining agreement does

not require a plaintiff to use the arbitration procedure for an alleged violation of the ADA.

However, the Court’s decision was limited since the Court did not find it necessary to reach the

issue of the validity of a union-negotiated waiver. In other words, the Court found that a general

arbitration agreement in a collective bargaining agreement is not sufficient to waive rights under

civil rights statutes but situations where there is a specific waiver of ADA rights were not

addressed.70

Reasonable Accommodations and Seniority Systems

The Supreme Court in U.S. Airways v. Barnett71 held that an employer’s showing that a requested

accommodation by an employee with a disability conflicts with the rules of a seniority system is

ordinarily sufficient to establish that the requested accommodation is not “reasonable” within the

meaning of the ADA. The Court, in a majority opinion by Justice Breyer, observed that a

seniority system, “provides important employee benefits by creating, and fulfilling, employee

expectations of fair, uniform treatment” and that to require a “typical employer to show more than

the existence of a seniority system might undermine the employees’ expectations of consistent,

uniform treatment.” Thus, in most ADA cases, the existence of a seniority system would entitle an

226 F.3d 1063 (9th Cir. 2000).

29 C.F.R. §1630.15(b)(2).

499 U.S. 187 (1991).

For more information, see CRS Report RL30008, Labor and Mandatory Arbitration Agreements: Background and

Discussion, by (name redacted).

535 U.S. 391 (2002).

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

employer to summary judgment in its favor. The Court found no language in the ADA which

would change this presumption if the seniority system was imposed by management and not by

collective bargaining. However, Justice Breyer found that there were some exceptions to this rule

for “special circumstances” and gave as examples situations where (1) the employer “fairly

frequently” changes the seniority system unilaterally, and thereby diminishes employee

expectations to the point where one more departure would “not likely make a difference” or (2)

the seniority system contains so many exceptions that one more exception is unlikely to matter.

Although the majority in Barnett garnered five votes, the Court’s views were splintered. There

were strong dissents and two concurring opinions. In her concurrence, Justice O’Connor stated

that she would prefer to say that the effect of a seniority system on the ADA depends on whether

the seniority system is legally enforceable but that since the result would be the same in most

cases as under the majority’s reasoning, she joined with the majority to prevent a stalemate. The

dissents took vigorous exception to the majority’s decision with Justice Scalia, joined by Justice

Thomas, arguing that the ADA does not permit any seniority system to be overridden. The dissent

by Justice Souter, joined by Justice Ginsberg, argued that nothing in the ADA insulated seniority

rules from a reasonable accommodation requirement and that the legislative history of the ADA

clearly indicated congressional intent that seniority systems be a factor in reasonable

accommodations determinations but not the major factor.

Rehiring of Individual Who Has Been Terminated for Illegal Drug Use

In Raytheon Co. v. Hernandez,72 the Supreme Court was presented with the issue of whether the

ADA confers preferential rehiring rights on employees who have been lawfully terminated for

misconduct, in this case illegal drug use. However, the Court, in an opinion by Justice Thomas,

did not reach this issue, finding that the Ninth Circuit had improperly applied a disparate impact

analysis in a disparate treatment case and remanding the case. The Court observed that it “has

consistently recognized a distinction between claims of discrimination based on disparate

treatment and claims of discrimination based on disparate impact.” Disparate treatment was

described as when an employer intentionally treats some people less favorably than others

because of a protected characteristic such as race and liability depends on whether the protected

trait actually motivated the employer’s decision. Disparate impact, in contrast, involves practices

that are facially neutral but in fact impact a protected group more harshly and cannot be justified

by business necessity. Disparate impact cases do not require evidence of an employer’s subjective

intent.73

Employment Inquiries Relating to a Disability

Before an offer of employment is made, an employer may not ask a disability related question or

require a medical examination.74 The EEOC in its guidance on this issue stated that the rationale

for this exclusion was to isolate an employer’s consideration of an applicant’s non-medical

qualifications from any consideration of the applicant’s medical condition.75 Once an offer is

540 U.S. 44 (2003).

Upon review, the Ninth Circuit Court of Appeals reversed and remanded the district court’s grant of the employer’s

motion for summary judgment. Hernandez v. Hughes Missile Systems Co., 362 F.3d 564 (9th Cir. 2004).

42 U.S.C. §12112.

EEOC, “ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations,”

(continued...)

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

made, disability related questions and medical examinations are permitted as long as all

individuals who have been offered a job in that category are asked the same questions and given

the same examinations.76 It is not always clear exactly what is a medical test. In Karraker v. Renta-Center, Inc.,77 the Seventh Circuit examined the issue of whether an employer’s use of the

Minnesota Multiphasic Personality Inventory (MMPI) in order to obtain a promotion violated the

ADA. The MMPI contains questions such as “I commonly hear voices without knowing where

they are coming from” and “I see things or animals or people around me that others do not see.”

The court found that, even though the test was not interpreted by a psychologist, the MMPI was a

medical test since it was designed in part to reveal mental illness.

The events of September 11, 2001, raised questions concerning whether an employer may ask

employees whether they will require assistance in the event of an evacuation because of a

disability or medical condition. The EEOC issued a fact sheet stating that employers are allowed

to ask employees to self-identify if they will require assistance because of a disability or medical

conditions and providing details on how the employer may identify individuals who may require

assistance.78 Similarly, the 2009 H1N1 influenza pandemic also raised issues concerning inquiries

relating to a disability, and the EEOC has issued guidance for employers.79

Defenses to a Charge of Discrimination

The ADA specifically lists defenses that may be applied to a charge of discrimination. If an

employer can demonstrate that qualification standards, tests, or other selection criteria that may

disqualify an individual with a disability are “job-related, … consistent with business necessity,

and such performance cannot be accomplished by reasonable accommodation,” the employer may

not be liable under the ADA.80 The ADA further states that such standards, tests, and criteria may

not be used to disqualify an individual based on his or her uncorrected vision unless the

requirement is job-related and consistent with business necessity.81

Employers may discriminate against an individual with a disability if he or she poses a direct

threat to the health or safety of other individuals in the workplace.82 The EEOC has indicated that

the following factors should be considered when determining whether an individual poses a direct

threat: the duration of the risk; the nature and severity of the potential harm; the likelihood that

the potential harm will occur; and the imminence of the potential harm.83

(...continued)

October 10, 1995.

Id.

411 F.3d 831 (7th Cir. 2005). For a more detailed discussion of this case, see Maureen E. Mulvihill, “Karraker v.

Rent-a-Center: Testing the Limits of the ADA, Personality Tests, and Employer Preemployment Screening,” 37 LOY.

U. CHI. L. J. 865 (2006).

http://www.eeoc.gov/facts/evacuation.html. For a detailed discussion of emergency procedures for employees with

disabilities, see Federal Emergency Management Agency, “Emergency Procedures for Employees with Disabilities in

Office Occupancies.” http://www.securitymanagement.com/library/disable.html.

See http://www.eeoc.gov/facts/pandemic_flu.html. For a discussion of these issues, see CRS Report R40866, The

Americans with Disabilities Act (ADA): Employment Issues and the 2009 Influenza Pandemic, by (name redacted).

42 U.S.C. §12113(a).

42 U.S.C. §12113(c).

42 U.S.C. §12113(b).

29 C.F.R. §1630.2(r).

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

The ADA includes two exceptions for religious organizations. First, religious entities may “[give]

preference in employment to individuals of a particular religion to perform work connected with

the carrying on by such [entity] of its activities.”84 Second, religious entities may require

applicants and employees to conform to their religious tenets.85 In addition to these statutory

protections, the Supreme Court has affirmed additional constitutional protections available to

religious employers. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a

teacher at a religious school challenged her termination under the ADA after the school fired her

following her disability leave.86 The Court recognized the constitutional ministerial exception to

employment discrimination laws, explaining that religious institutions must be permitted to select

employees who are responsible for carrying out the institution’s mission.87 Thus, the ministerial

exception may be claimed by religious employers with respect to ministers and ministerial

employees only. The ministerial exception prevents governmental interference in decisions

regarding these employees in conformance with the constitutional requirements of the First

Amendment.88

Finally, employers may avoid liability under the ADA for decisions that discriminate against

individuals with an infectious or communicable disease if the disease may be transmitted through

food handling and the job involves such duties.89 To claim this defense, the disease must be listed

by the Secretary of Health And Human Services as an infectious disease transmitted through food

handling and must not be able to be eliminated by reasonable accommodation.90

Drugs, Alcohol, and Employer Conduct Rules

A controversial issue that arose during the enactment of the ADA regarding employment

concerned the application of the act to drug addicts and alcoholics. The ADA provides that, with

regard to employment, current illegal drug users are not considered to be qualified individuals

with disabilities. However, former drug users and alcoholics would be covered by the act if they

are able to perform the essential functions of the job. Exactly what is “current” use of illegal

drugs has been the subject of some discussion. The EEOC has defined current to mean that the

illegal drug use occurred “recently enough” to justify an employer’s reasonable belief that drug

use is an ongoing problem.91 The courts that have examined this issue have generally found that

to be covered by the ADA, the individual must be free of drugs for a considerable period of time,

certainly longer than weeks.92

42 U.S.C. §12113(d)(1). This exception for religious organizations mirrors the exception provided in Title VII of the

Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, national origin, or

sex. See 42 U.S.C. §2000e et seq. For a legal analysis of the applicability of the exception, see CRS Report RS22745,

Religion and the Workplace: Legal Analysis of Title VII of the Civil Rights Act of 1964 as It Applies to Religion and

Religious Organizations, by Cynthia Brougher.

42 U.S.C. §12113(d)(2).

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S.Ct. 694 (2012).

Id. at 710.

Id. at 703 (“The Establishment Clause prevents the Government from appointing ministers, and the Free Exercise

Clause prevents it from interfering with the freedom of religious groups to select their own [ministers].”).

42 U.S.C. §12113(e)(2).

Id. The Secretary of Health and Human Services maintains a list of infectious and communicable diseases

transmitted through the food supply. See 74 Federal Register 61151 (November 23, 2009).

29 C.F.R. Appendix §1630.3.

See e.g., Shafer v. Preston Memorial Hospital Corp., 107 F.3d 274 (4th Cir. 1997)(individual is a current user if he or

(continued...)

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

In the appendix to its regulations, EEOC further notes that “an employer, such as a law

enforcement agency, may also be able to impose a qualification standard that excludes individuals

with a history of illegal use of drugs if it can show that the standard is job-related and consistent

with business necessity.”93 Title I of the ADA also provides that a covered entity may prohibit the

illegal use of drugs and the use of alcohol in the workplace.94 Similarly, employers may hold all

employees, regardless of whether or not they have a disability, to the same performance and

conduct standards.95 However, if the misconduct results from a disability, the employer must be

able to demonstrate that the rule is job-related and consistent with business necessity.96

Remedies

The remedies and procedures set forth in Sections 705, 706, 707, 709, and 710 of the Civil Rights

Act of 1964,97 are incorporated by reference. This provides for certain administrative enforcement

as well as allowing for individual suits. The Civil Rights Act of 1991, P.L. 102-166, expanded the

remedies of injunctive relief and back pay. A plaintiff who was the subject of unlawful intentional

discrimination (as opposed to an employment practice that is discriminatory because of its

disparate impact) may recover compensatory and punitive damages. In order to receive punitive

damages, the plaintiff must show that there was a discriminatory practice engaged in with malice

or with reckless indifference to the rights of the aggrieved individuals. The amount that can be

awarded in punitive and compensatory damages is capped, with the amounts varying from

$50,000 to $300,000 depending upon the size of the business.98 Similarly, there is also a “good

faith” exception to the award of damages with regard to reasonable accommodation.

The Lilly Ledbetter Fair Pay Act of 2009, P.L. 111-2, amends Title VII of the Civil Rights Act of

1964, the Age Discrimination in Employment Act, the Rehabilitation Act of 1973, and the

Americans with Disabilities Act. Enacted in response to the Supreme Court’s decision in

Ledbetter v. Goodyear Tire & Rubber Co.,99 the law states that an unlawful employment practice

occurs, with respect to discrimination in compensation, when a discriminatory compensation

decision or other practice is adopted, when an individual becomes subject to a discriminatory

compensation decision or practice, or when an individual is affected by application of a

discriminatory compensation decision or practice. Liability for these discriminatory practices may

accrue and an individual may obtain back pay for up to two years preceding the filing of the

(...continued)

she has illegally used drugs “in a periodic fashion during the weeks and months prior to discharge.”)

29 C.F.R. Appendix §1630.3.

42 U.S.C. §12114(c); 29 C.F.R. §1630.16(b)(4).

EEOC Compliance Manual §902.2(c)(4). See also Hamilton v. Southwestern Bell Telephone Co., 136 F.3d 1047 (5th

Cir. 1998)(“the ADA does not insulate emotional or violent outbursts blamed on an impairment”).

EEOC Enforcement Guidance on the ADA and Psychiatric Disabilities, No. 915.002, p. 29 (March 25, 1997).

42 U.S.C. §§2000e-4, 2000e-5, 2000e-6, 2000e-8, 2000e-9.

In Gagliardo v. Connaught Laboratories, 311 F.3d 565 (3d Cir. 2002), an employee who claimed that she was

discriminated against due to her multiple sclerosis won an award of $2.3 million despite the ADA caps. The court

found that the judge had properly proportioned the claims between the federal and state causes of action and found that

the fact that the state law did not contain a cap indicated that it was intended to provide a remedy beyond the federal

remedies.

550 U.S. 618 (2007).

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

charges.100 P.L. 111-2 applies to Title I of the ADA which covers employment, and Section 503,

42 U.S.C. §12203, of the ADA, which prohibits retaliation and coercion.

It should also be noted that the Supreme Court addressed the issue of punitive damages in a Title

VII sex discrimination case, Kolstad v. American Dental Association.101 The Court held in

Kolstad that plaintiffs are not required to prove egregious conduct to be awarded punitive

damages; however, the effect of this holding is limited by the Court’s determination that certain

steps taken by an employer may immunize them from punitive damages. Since the ADA

incorporates the Title VII provisions, the holding in Kolstad may be applicable to ADA

employment cases as well.102

In Equal Employment Opportunity Commission v. Wal-mart Stores, Inc.,103 the Tenth Circuit

applied Kolstad and affirmed an award of punitive damages under the ADA. This case involved a

hearing impaired employee of Wal-mart who sometimes required the assistance of an interpreter.

After being employed for about two years in the receiving department, the employee was required

to attend a training session but left when the video tape shown was not close captioned and no

interpreter was provided. After refusing to attend in the absence of an interpreter, the employee

was transferred to the maintenance department to perform janitorial duties. When he questioned

the transfer and asked for an interpreter, he was again denied. After threatening to file a complaint

with the EEOC, the employee was suspended and later terminated from employment. He then

sued and won compensatory damages and $75,000 in punitive damages. On appeal, the Tenth

Circuit examined the reasoning in Kolstad and concluded that the record in Wal-mart “is

sufficient to resolve the questions of intent and agency laid out in Kolstad.” With regard to intent,

the court reiterated the facts and further noted that the store manager, who ultimately approved

the employee’s suspension, had testified that he was familiar with the ADA and its provisions

regarding accommodation, discrimination and retaliation. This was seen as sufficient for a

reasonable jury to conclude that Wal-mart intentionally discriminated. Wal-mart had also made an

agency argument, stating that liability for punitive damages was improper because the employees

who discriminated against the employee did not occupy positions of managerial control. Looking

again to the reasoning in Kolstad, the Tenth Circuit noted that the Wal-mart employees had

authority regarding hiring and firing decisions and observed that such authority is an indicium of

supervisory or managerial capacity.

Public Services

General Requirements

Title II of the ADA provides that no qualified individual with a disability shall be excluded from

participation in or be denied the benefits of the services, programs, or activities of a public entity

100

For a discussion of the Ledbetter decision, see CRS Report RS22686, Pay Discrimination Claims Under Title VII of

the Civil Rights Act: A Legal Analysis of the Supreme Court’s Decision in Ledbetter v. Goodyear Tire & Rubber Co.,

Inc., by (name redacted). For a discussion of the legislation, see CRS Report RL31867,

Pay Equity Legislation, by (name red

acted) and (name redacted).

101

527 U.S. 526 (1999).

102

But see Barnes v. Gorman, 536 U.S. 181 (2002), where the Supreme Court held that punitive damages may not be

awarded under Section 202 of the ADA.

103

187 F.3d 1241 (10th Cir. 1999).

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

or be subjected to discrimination by any such entity.104 “Public entity” is defined as state and local

governments, any department or other instrumentality of a state or local government and certain

transportation authorities. The ADA does not apply to the executive branch of the federal

government; the executive branch and the U.S. Postal Service are covered by Section 504 of the

Rehabilitation Act of 1973.105

The Department of Justice (DOJ) promulgated regulations for Title II which were amended as

published in the Federal Register on September 15, 2010. The regulations contain a specific

section on program accessibility. Each service, program, or activity conducted by a public entity,

when viewed in its entirety, must be readily accessible to and usable by individuals with

disabilities. However, a public entity is not required to make each of its existing facilities

accessible.106 Program accessibility is limited in certain situations involving historic preservation.

In addition, in meeting the program accessibility requirement, a public entity is not required to

take any action that would result in a fundamental alteration in the nature of its service, program,

or activity or in undue financial and administrative burdens.107 The amended Title II regulations

adopt accessibility standards consistent with the new minimum guidelines and requirements

issued by the Architectural and Transportation Barriers Compliance Board (Access Board). In

order to provide “an important measure of clarity and certainty for public entities,”108 DOJ’s

amended title II regulations add an “element by element safe harbor” provision where elements in

covered facilities that were built or altered in accordance with the previous 1991 accessibility

standards would not be required to be brought into compliance with the new standards until the

elements were subject to a planned alteration. In addition, the amended regulations include more

detailed standards for service animals,109 power-driven mobility devices, ticketing, and effective

communication.110 The amended regulations took effect March 15, 2011, but compliance with the

2010 standards for accessible design is not required until March 15, 2012.

Title II of the ADA would also apply to state and local government emergency preparedness and

response programs. The Department of Justice has issued an ADA guide for local governments,

noting that “one of the most important roles of local government is to protect their citizenry from

harm, including helping people prepare for and respond to emergencies. Making local

government emergency preparedness and response programs accessible to people with disabilities

is critical part of this responsibility. Making these programs accessible is also required by the

ADA.”111

104

42 U.S.C. §§12131-12133.

29 U.S.C. §794.

106

28 C.F.R. §35.150.

107

Id. The Department of Justice provided a document containing examples of common ADA compliance problems by

city governments that have been identified through the Department of Justice’s ongoing enforcement efforts. See

http://www.usdoj.gov/crt/ada/comprob.htm.

108

75 Federal Register 56207 (September 15, 2010). The Department of Justice amended existing Title II and Title III

regulations. For a more detailed discussion of the safe harbor provision see CRS Report R41376, The Americans with

Disabilities Act (ADA): Final Rule Amending Title II and Title III Regulations, by (name redacted) and (name red

acted).

109

For a more detailed discussion of the provisions relating to service animals see CRS Report R41468, The Americans

with Disabilities Act (ADA) and Service Animals, by (name redacted).

110

75 Federal Register 56164 (September 15, 2010). For a more detailed discussion of the changes generally see CRS

Report R41376, The Americans with Disabilities Act (ADA): Final Rule Amending Title II and Title III Regulations, by

(name redacted) and (name redacted).

111

http://www.usdoj.gov/crt/ada/emergencyprep.htm. For a more detailed discussion of these issues, see CRS Report

(continued...)

105

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

Supreme Court Cases

Although Title II has not been the subject of as much litigation as Title I, several of the ADA

cases to reach the Supreme Court have involved Title II. The most significant of these to date is

Tennessee v. Lane.112 In Lane, the Supreme Court held that Title II of the ADA, as it applies to the

fundamental right of access to the courts, constitutes a valid exercise of congressional authority

under Section 5 of the Fourteenth Amendment. In addition, the Supreme Court in United States v.

Georgia.,113 held that Title II of the ADA created a private cause of action for damages against the

states for conduct that actually violates the Fourteenth Amendment.

In the first ADA case to reach the Supreme Court, Pennsylvania Department of Corrections v.

Yeskey, supra, the Court found in a unanimous decision that state prisons “fall squarely within the

statutory definition of ‘public entity’” for Title II. Yeskey involved a prisoner who was sentenced

to 18 to 36 months in a Pennsylvania correctional facility but was recommended for placement in

a motivational boot camp for first time offenders. If the boot camp was successfully completed,

the prisoner would have been eligible for parole in six months. The prisoner was denied

admission to the program due to his medical history of hypertension and sued under the ADA.

The state argued that state prisoners were not covered under the ADA since such coverage would

“alter the usual constitutional balance between the States and the Federal Government.” The

Supreme Court rejected this argument, observing that “the ADA plainly covers state institutions

without any exception that could cast the coverage of prisons into doubt.” The Court noted that

prisoners receive many services, including medical services, educational and vocational programs

and recreational activities so that the ADA language applying the “benefits of the services,

programs, or activities of a public entity” is applicable to state prisons.114 However, the Court in

Yeskey did not address the constitutional issues.

In Olmstead v. Georgia, supra, the Supreme Court examined issues raised by state mental health

institutions and held that Title II of the ADA requires states to place individuals with mental

disabilities in community settings rather than institutions when the State’s treatment professionals

have determined that community placement is appropriate, community placement is not opposed

by the individual with a disability, and the placement can be reasonably accommodated.115

“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

(...continued)

RS22254, The Americans with Disabilities Act and Emergency Preparedness and Response, by (name redacted).

112

541 U.S. 509 (2004).

113

546 U.S. 151 (2006).

114

The Supreme Court had remanded this case for consideration of whether Yeskey was an individual with a disability.

On remand, the district court held that he was not covered by the ADA since he was not substantially limited in a major

life activity. Yeskey v. Pennsylvania Department of Corrections, 76 F.Supp. 2d 572 (M.D. Pa.1999).

115

Olmstead has focused federal and state attention on the development of policies that would expand home and

community-based care for individuals with disabilities. For a more detailed discussion of Olmstead, see CRS Report

R40106, Olmstead v. L.C.: Judicial and Legislative Developments in the Law of Deinstitutionalization, by (name red

acted).

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

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.116

Other Title II Cases

Courts have examined various other issues regarding compliance with Title II. For example, in

Crowder v. Kitagawa, a Hawaii regulation requiring the quarantine of all dogs, including guide

dogs for visually impaired individuals, was found to violate Title II.117 Other Title II cases have

involved whether curb ramps are required,118 the application of Title II to a city ordinance

allowing open burning,119 and the application of the ADA to a city’s zoning ordinances.120

Transportation Provisions

Title II also provides specific requirements for public transportation by intercity and commuter

rail and for public transportation other than by aircraft or certain rail operations.121 All new

vehicles purchased or leased by a public entity that operates a fixed route system must be

accessible, and good faith efforts must be demonstrated with regard to the purchase or lease of

accessible use vehicles. Retrofitting of existing buses is not required. Paratransit services must be

provided by a public entity that operates a fixed route service, other than one providing solely

116

See also Frederick L., Nina S., Kevin C. And Steven F. v. Department of Public Welfare, 422 F.3d 151 (3d Cir.

2005), where the court found that Pennsylvania’s Department of Public Welfare was obligated to integrate eligible

patients into local community-based settings and was required to articulate a commitment to this requirement in a

specific comprehensive, effectively working, plan before it could utilize a “fundamental alteration” defense.

117

Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996). The court stated: “Although Hawaii’s quarantine requirement

applies equally to all persons entering the state with a dog, its enforcement burdens visually-impaired persons in a

manner different and greater than it burdens others. Because of the unique dependence upon guide dogs among many

of the visually-impaired, Hawaii’s quarantine effectively denies these persons ... meaningful access to state services,

programs, and activities while such services, programs, and activities remain open and easily accessible by others.”

118

In Kinney v. Yerusalim, 812 F.Supp. 547 (E.D. Pa. 1993), aff’d 9 F.3d 1067 (3d Cir. 1993), cert. denied, 511 U.S.

1033 (1994), the court found that street repair projects must include curb ramps for individuals with disabilities.

Similarly, see Ability Center of Greater Toledo v. Lechner, 385 F.3d 901 (6th Cir. 2004), where the court held that Title

II “does not merely prohibit intentional discrimination. It also imposes on public entities the requirement that they

provide qualified disabled individuals with meaningful access to public services, which in certain instances necessitates

that public entities take affirmative steps to remove architectural barriers to such access in the process of altering

existing facilities.” At 912. See also Barden v. Sacramento, 292 F.3d 1073 (9th Cir. 2002), cert. denied, 539 U.S. 958

(2003). See also 28 C.F.R. §35.151(e)(1), where the Department of Justice details the requirements for curb ramps.

119

Heather K. v. City of Mallard, Iowa, 946 F.Supp. 1373 (N.D.Iowa 1996).

120

Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37 (2d Cir. 1997).

121

42 U.S.C. §§12141-12165. P.L. 104-287 added a new definition. The term “commuter rail transportation” has the

meaning given the term “commuter rail passenger transportation” in 45 U.S.C. §502(9). For a more detailed discussion

of the transportation provisions, see CRS Report RS22676, Public Transportation Providers’ Obligations Under the

Americans with Disabilities Act (ADA), by (name redacted). Airplanes are covered by the Air Carriers A ccess Act, 49

U.S.C. §41705. For a discussion of this law, see CRS Report RL34047, Overview of the Air Carrier Access Act

(ACAA), by (name redacted).

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

commuter bus service.122 Rail systems must have at least one car per train that is accessible to

individuals with disabilities.123

Draft guidelines have been published by the Architectural and Transportation Barriers

Compliance Board (Access Board) regarding the accessibility of public rights-of-way.124 The

purpose of the draft guidelines is to gather additional information for the regulatory assessment

and the preparation of technical assistance materials to accompany a future rule. The Board will

issue a notice of proposed rulemaking at a future date and will solicit comments at that time, prior

to issuing a final rule.

Remedies

The enforcement remedies of Section 505 of the Rehabilitation Act of 1973, 29 U.S.C. §794a, are

incorporated by reference.125 These remedies are similar to those of Title VI of the Civil Rights

Act of 1964, and include damages and injunctive relief. The Attorney General has promulgated

regulations relating to subpart A of the Title,126 and the Secretary of Transportation has issued

regulations regarding transportation.127

Barnes v. Gorman

The Supreme Court in Barnes v. Gorman128 held in a unanimous decision that punitive damages

may not be awarded under Section 202129 of the ADA and Section 504 of the Rehabilitation Act

of 1973.130 Jeffrey Gorman uses a wheelchair and lacks voluntary control over his lower torso

which necessitates the use of a catheter attached to a urine bag. He was arrested in 1992 after

fighting with a bouncer at a nightclub and during his transport to the police station suffered

significant injuries due to the manner in which he was transported. He sued the Kansas City

police and was awarded over $1 million in compensatory damages and $1.2 million in punitive

damages. The Eighth Circuit court of appeals upheld the award of punitive damages but the

Supreme Court reversed. Although the Court was unanimous in the result, there were two

concurring opinions and the concurring opinion by Justice Stevens, joined by Justices Ginsburg

and Breyer, disagreed with the reasoning used in Justice Scalia’s opinion for the Court.

Justice Scalia observed that the remedies for violations of both Section 202 of the ADA and

Section 504 of the Rehabilitation Act are “coextensive with the remedies available in a private

122

42 U.S.C. §12143.

42 U.S.C. §12162.

124

70 Federal Register 70734 (November 23, 2005).

125

42 U.S.C. §12133.

126

28 C.F.R. Part 35.

127

49 C.F.R. Parts 27, 37, 38.

128

536 U.S. 181 (2002).

129

42 U.S.C. §12132. Section 203, 42 U.S.C. §12133, contains the enforcement provisions.

130

29 U.S.C. §794. Section 504 in relevant part prohibits discrimination against individuals with disabilities in any

program or activity that receives federal financial assistance. The requirements of Section 504, its regulations, and

judicial decisions were the model for the statutory language in the ADA where the nondiscrimination provisions are not

limited to entities that receive federal financial assistance.

123

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

cause of action brought under Title VI of the Civil Rights Act of 1964.”131 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 Clause132 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.”133

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 ADA.

Public Accommodations

General Requirements

Title III provides that no individual shall be discriminated against on the basis of disability in the

full and equal enjoyment of the goods, services, facilities, privileges, advantages, or

accommodations of any place of public accommodation by any person who owns, leases (or

leases to), or operates a place of public accommodation.134 Entities that are covered by the term

“public accommodation” are listed, and include, among others, hotels, restaurants, theaters,

auditoriums, laundromats, museums, parks, zoos, private schools, day care centers, professional

offices of health care providers, and gymnasiums.135 Religious institutions or entities controlled

by religious institutions are not included on the list.

There are some limitations on the nondiscrimination requirements, and a failure to remove

architectural barriers is not a violation unless such a removal is “readily achievable.”136 “Readily

achievable” is defined as meaning “easily accomplishable and able to be carried out without

much difficulty or expense.”137 Reasonable modifications in practices, policies or procedures are

required unless they would fundamentally alter the nature of the goods, services, facilities, or

privileges or they would result in an undue burden.138 An undue burden is defined as an action

involving “significant difficulty or expense.”139

Title III contains a specific exemption for religious entities.140 This applies when an entity is

controlled by a religious entity. For example, a preschool that is run by a religious entity would

131

42 U.S.C. §2000d et seq.

U.S. Const., Art. I §8, cl.1.

133

Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17 (1981).

134

42 U.S.C. §12182.

135

42 U.S.C. §12181.

136

42 U.S.C. §12182(b)(2)(A)(iv).

137

42 U.S.C. §12181.

138

42 U.S.C. §12182(b)(2)(A).

139

28 C.F.R. §36.104.

140

42 U.S.C. §12187.

132

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

not be covered under the ADA; however a preschool that is not run by a religious entity but that

rents space from the religious entity, would be covered by Title III.

Similarly, Title III does not apply to private clubs or establishments exempted from coverage

under Title II of the Civil Rights Act of 1964.141 In interpreting this provision,142 the Department

of Justice has noted that courts have been most inclined to find private club status in cases where

(1) members exercise a high degree of control over club operations, (2) the membership selection

process is highly selective, (3) substantial membership fees are charged, (4) the entity is operated

on a nonprofit basis, and (5) the club was not founded specifically to avoid compliance with

federal civil rights law. Facilities of a private club lose their exemption, however, to the extent

that they are made available for use by nonmembers as places of public accommodation.143

Title III also contains provisions relating to the prohibition of discrimination in public

transportation services provided by private entities. Purchases of over-the-road buses are to be

made in accordance with regulations issued by the Secretary of Transportation.144

The Department of Justice promulgated amendments to the Title III regulations that were

amended as published in the Federal Register on September 15, 2010.145 The amended Title III

regulations adopt accessibility standards consistent with the new minimum guidelines and

requirements issued by the Architectural and Transportation Barriers Compliance Board (Access

Board). In addition, the regulations include more detailed standards for service animals146 and

power-driven mobility devices, ticketing, and effective communication,147 and provide for an

element by element “safe harbor” in certain circumstances. The amended regulations took effect

March 15, 2011, but compliance with the 2010 standards for accessible design is not required

until March 15, 2012.

Bragdon v. Abbott and Direct Threats to Health and Safety

The nondiscrimination mandate of Title III does not require that an entity permit an individual to

participate in or benefit from the services of a public accommodation where such an individual

poses a direct threat to the health or safety of others.148 This issue was discussed by the Supreme

141

42 U.S.C. §2000a-3(a).

42 U.S.C. 12187.

143

Department of Justice, “ADA Title III Technical Assistance Manual” III-1.6000.

144

42 U.S.C. §12184. This section was amended by P.L. 104-59 to provide that accessibility requirements for private

over-the-road buses must be met by small providers within three years after the issuance of final regulations and with

respect to other providers, within two years after the issuance of such regulations.

145

75 Federal Register 56164 (September 15, 2010). For a more detailed discussion of the changes generally see CRS

Report R41376, The Americans with Disabilities Act (ADA): Final Rule Amending Title II and Title III Regulations, by

(name redacted) and (name redacted).

146

For a more detailed discussion of the provisions relating to service animals see CRS Report R41468, The Americans

with Disabilities Act (ADA) and Service Animals, by (name redacted).

147

For a more detailed discussion the amended regulations regarding effective communication in the hospital setting

see CRS Report 97-826, Americans with Disabilities Act (ADA) Requirements Concerning the Provision of Interpreters

by Hospitals and Doctors, by (name redacted). For a discussion of an advanced notice of proposed rulemaking

(ANPR) regarding captioning see CRS Report R41659, The Americans with Disabilities Act (ADA): Movie Captioning

and Video Description, by (name redacted).

148

For a more detailed discussion of this issue, see CRS Report RS22219, The Americans with Disabilities Act (ADA)

Coverage of Contagious Diseases, by (name redacted). The EEOC has discussed the concept of direct threat in the

(continued...)

142

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

Court in Bragdon v. Abbott, supra, where the Court stated that “the existence, or nonexistence, of

a significant risk must be determined from the standpoint of the person who refuses the treatment

or accommodation, and the risk assessment must be based on medical or other objective

evidence.” Dr. Bragdon had the duty to assess the risk of infection “based on the objective,

scientific information available to him and others in his profession. His belief that a significant

risk existed, even if maintained in good faith, would not relieve him from liability.” The Supreme

Court remanded the case for further consideration of the direct threat issue. On remand, the First

Circuit Court of Appeals held that summary judgment was warranted finding that Dr. Bragdon’s

evidence was too speculative or too tangential to create a genuine issue of fact.149

The Supreme Court declined to review a Fourth Circuit Court of Appeals decision regarding the

direct threat exception to Title III. In Montalvo v. Radcliffe,150 the Fourth Circuit held that

excluding a child who has HIV from karate classes did not violate the ADA because the child

posed a significant risk to the health and safety of others which could not be eliminated by

reasonable modification.

Martin v. PGA Tour and “Fundamental Alteration”

In Martin v. PGA Tour, the Supreme Court in a 7-2 decision by Justice Stevens held that the

ADA’s requirements for equal access gave a golfer with a mobility impairment the right to use a

golf cart in professional competitions.151 The Ninth Circuit had ruled that the use of the cart was

permissible since it did not “fundamentally alter” the nature of the competition.152

Title III of the ADA defines the term “public accommodation,” specifically listing golf courses.153

The majority opinion looked at this definition and the general intent of the ADA to find that golf

tours and their qualifying rounds “fit comfortably within the coverage of Title III.” The Court

then discussed whether there was a violation of the substantive nondiscrimination provision of

Title III. The ADA states that discrimination includes “a failure to make reasonable modifications

in policies, practices, or procedures, when such modifications are necessary to afford such goods,

services, facilities, privileges, advantages, or accommodations to individuals with disabilities,

unless the entity can demonstrate that making such modifications would fundamentally alter the

nature of such goods, services, facilities, privileges, advantages, or accommodations.”154

(...continued)

context of an influenza pandemic and determined that “[w]hether pandemic influenza rises to the level of a direct threat

depends on the severity of the illness.” http://www.eeoc.gov/facts/pandemic_flu.html.

149

Abbott v. Bragdon, 163 F.3d 87 (1st Cir. 1998), cert. denied, 526 U.S. 1131 (1999).

150

167 F.3d 873 (4th Cir. 1999), cert. denied, 528 U.S. 813 (1999).

151

532 U.S. 661 (2001).

152

204 F.3d 994 (9th Cir. 2000).

153

42 U.S.C. §12181(7).

154

42 U.S.C. §12182(b)(2)(A)(ii)(emphasis added). The Department of Justice regulations echo the statutory language

and provide the following illustration. “A health care provider may refer an individual with a disability to another

provider if that individual is seeking, or requires, treatment or services outside of the referring provider’s area of

specialization, and if the referring provider would make a similar referral for an individual without a disability who

seeks or requires the same treatment or services.” 28 C.F.R. §36.302. The concept of fundamental alteration did not

originate in the statutory language of the ADA but was derived from Supreme Court interpretation of Section 504 of

the Rehabilitation Act of 1973, 29 U.S.C. §794, which, in part, prohibits discrimination against an individual with a

disability in any program or activity that receives federal financial assistance and was the model on which the ADA

(continued...)

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

In theory, the Court opined, there might be a fundamental alteration of a golf tournament in two

ways: (1) an alteration in an essential aspect of the game, such as changing the diameter of the

hole, might be unacceptable even if it affected all players equally, or (2) a less significant change

that has only a peripheral impact on the game might give a golfer with a disability an advantage

over others and therefore fundamentally alter the rules of competition. Looking at both these

types of situations, Justice Stevens found that a waiver of the walking rule for Casey Martin did

not amount to a fundamental alteration. He noted that the essence of the game was shot-making

and that the walking rule was not an indispensable feature of tournament golf as golf carts are

allowed on the Senior PGA Tour as well as certain qualifying events. In addition, Justice Stevens

found that the fatigue from walking the approximately five miles over five hours was not

significant. Regarding the question of whether allowing Casey Martin to use a cart would give

him an advantage, the majority observed that an individualized inquiry must be made concerning

whether a specific modification for a particular person’s disability would be reasonable under the

circumstances and yet not be a fundamental alteration. In examining the situation presented, the

majority found that Casey Martin endured greater fatigue even with a cart than other contenders

do by walking.

Justice Scalia, joined by Justice Thomas, wrote a scathing dissent describing the majority’s

opinion as distorting the text of Title III, the structure of the ADA, and common sense. The

dissenters contended that Title III of the ADA applies only to particular places and persons and

does not extend to golf tournaments. The dissent also contended that “the rules are the rules,” that

they are by nature arbitrary, and there is no basis for determining any of them “non-essential.”

Spector v. Norwegian Cruise Line, Ltd. and the

Application of the ADA to Foreign 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 foreign cruise ships in U.S.

waters.155 Prior to this decision there had been a split in the circuits with the Eleventh Circuit

holding in Stevens v. Premier Cruises Inc.156 that Title III of the ADA does apply to foreign cruise

ships and the Fifth Circuit in Spector v. Norwegian Cruise Lines157 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

(...continued)

was based. In Southeastern Community College v. Davis, 442 U.S. 397 (1979), the Supreme Court addressed a suit by a

hearing impaired woman who wished to attend a college nursing program. The college rejected her application because

it believed her hearing disability made it impossible for her to participate safely in the normal clinical training program

and to provide safe patient care. The Supreme Court found no violation of Section 504 and held that it did “not

encompass the kind of curricular changes that would be necessary to accommodate respondent in the nursing program.”

Since Davis could not function in clinical courses without close supervision, the Court noted that the college would

have had to limit her to academic courses. The Court further observed that “whatever benefits respondent might realize

from such a course of study, she would not receive even a rough equivalent of the training a nursing program normally

gives. Such a fundamental alteration in the nature of a program is far more than the ‘modification’ the regulation

requires.” (At 409-410.) In conclusion, the Court found that “nothing in the language or history of § 504 reflects an

intention to limit the freedom of an educational institution to require reasonable physical qualifications for admission to

a clinical training program.” (At 414.)

155

545 U.S. 119 (2005).

156

215 F.3d 1237 (11th Cir. 2000), rehearing and rehearing en banc denied, 284 F.3d 1187 (11th Cir. 2002).

157

356 F.3d 641 (5th Cir. 2004).

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

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.

ADA and the Internet

The ADA was enacted in 1990, prior to widespread use of the Internet, and does not specifically

cover the Internet.158 Similarly, the ADA regulations do not specifically mention the Internet.

However, the Department of Justice has indicated that it believes the ADA does require Internet

accessibility,159 and has issued an advanced notice of rulemaking (ANPR) stating that it is

considering revising the regulations implementing Titles II and III of the ADA to establish

specific requirements for state and local governments and public accommodations to make their

websites accessible to individuals with disabilities.160 In a hearing in the 111th Congress, DOJ

testified that although the ADA does not specifically mention the Internet, access to the Internet is

a civil rights issue. DOJ further stated,

the websites of entities covered by both Title II and Title III of the statute are required by law

to ensure that their sites are fully accessible to individuals with disabilities. The Department

is considering issuing guidance on the range of issues that arise with regard to the internet

sites of private businesses that are public accommodations covered by Title III of the ADA.

In so doing, the Department will solicit public comment from the broad range of parties

interested in this issue.161

Although the ADA was amended in 2008 to respond to a series of Supreme Court decisions that

had interpreted the definition of disability narrowly it did not address the issue of Internet

coverage.162 There has been no Supreme Court decision on point, and there have been few lower

court judicial decisions. The lower courts that have examined the issue have split, creating some

uncertainty. In addition, the use of a “nexus” approach in National Federation of the Blind v.

158

For a more detailed discussion of this issue, see CRS Report R40462, The Americans with Disabilities Act (ADA):

Application to the Internet, by (name redacted). A similar issue is raised by electronic book readers. See

http://www.ada.gov/kindle_ltr_eddoj.htm.

159

Achieving the Promise of the Americans with Disabilities Act in the Digital Age: Current Issues, Challenges, and

Opportunities: Hearing Before the H. Subcommittee on the Constitution, Civil Rights and Civil Liberties of the H.

Comm. on the Judiciary, 111th Cong., 2d Sess. (Testimony of Samuel R. Bagenstos, Principal Deputy Assistant

Attorney General for Civil Rights, Department of Justice), http://judiciary.house.gov/hearings/pdf/

Bagenstos100422.pdf.

160

http://www.ada.gov/anprm2010/web%20anprm_2010.htm.

161

Id.

162

The ADA Amendments Act, P.L. 110-325. For a more detailed discussion of P.L. 110-325, see CRS Report

RL34691, The ADA Amendments Act: P.L. 110-325, by (name redacted) and (name redacted).

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

Target Corporation,163 requiring a connection between the Internet services and the physical place

in order to present an actionable ADA claim, would limit the application of the ADA to on-line

retailers. Despite this uncertainty, it would appear likely that the Department of Justice’s position

would prevail, especially in light of the ADA’s broad nondiscrimination mandate.

The question of ADA coverage of internet sites will undoubtedly continue to be a closely watched

issue.164 It should be noted that this issue does not effect the requirement that federal government

websites be accessible since the federal requirement is contained in a separate statute, Section 508

of the Rehabilitation Act.165

Vexatious Litigation

An issue which has prompted the introduction of bills in the last several Congresses involves the

filing of multiple law suits by an individual with a disability based on de minimis violations and

seeking money for a settlement.166 Although these cases are seldom tried in court, Molski v.

Mandarin Touch Restaurant167 did result in an opinion finding that the plaintiff was a vexatious

litigant who filed hundreds of law suits designed to harass and intimidate business owners into

agreeing to cash settlements. The district court ordered the plaintiff to obtain the leave of the

court prior to filing any other claims under the ADA. In a related suit, the California district court

also found against the counsel in the Molski case holding that the counsel was required to seek

leave of the court before filing any additional ADA claims.168

These two cases were upheld on appeal to the Ninth Circuit in Molski v. Evergreen Dynasty

Corp.169 After a detailed examination of the cases in light of standards for vexatious litigation, the

Ninth Circuit noted the following:

163

452 F.Supp.2d 946 (N.D. Calif. 2006). The case was settled on August 27, 2008. See http://www.nfb.org. For a

more detailed discussion of this case, see Isabel Arana DuPree, “Websites as ‘Places of Public Accommodation’:

Amending the Americans with Disabilities Act in the Wake of National Federal of the Blind v. Target Corporation,”

NC J. L. & Tech. 273 (2007); Jeffrey Bashaw, “Applying the Americans with Disabilities Act to Private Websites after

National Federation of the Blind v. Target,” 4 Shidler J. L. Com. & Tech. 3 (2008).

164

For a more detailed discussion of the issue, see National Council on Disability, “When the Americans with

Disabilities Act Goes Online: Application of the ADA to the Internet and the Worldwide Web,” (July 10, 2003)

http://www.ncd.gov/newsroom/publications/2003/adainternet.htm; The Association of the Bar of the City of New

York, “Website Accessibility for People with Disabilities,” 62 The Record 118 (2007); Steven Mendelsohn, and Martin

Gould, “When the Americans with Disabilities Act Goes Online: Application of the ADA to the Internet and the World

Wide Web,” 7 Comp. L. Rev. & Tech. J. 173 (2004).

165

29 U.S.C. §794(d), as amended by P.L. 105-220. Section 508 requires that the electronic and information

technology used by federal agencies be accessible to individuals with disabilities, including employees and member of

the public. Generally, Section 508 requires each federal department or agency and the U.S. Postal Service to ensure that

individuals with disabilities who are federal employees have access to and use of electronic and information technology

that is comparable to that of individuals who do not have disabilities. For more detailed information, see

http://www.section508.gov.

166

See section on legislation infra. See also CRS Report RS22296, The Americans with Disabilities Act: Legislation

Concerning Notification Prior to Initiating Legal Action, by (name redacted). For a discussion of vexatious lawsuits,

see Wayne C. Arnold and Lisa D. Herzog, “How Many Lawsuits Does It Take to Declare an ADA Plaintiff

Vexatious?” 48 Orange County Lawyer 50 (July 2006).

167

347 F.Supp.2d 860 (C.D.Calif. 2004).

168

Molski v. Mandarin Touch Restaurant, 359 F.Supp.2d 924 (C.D.Calif. 2005).

169

500 F.3d 1047 (9th Cir. 2007), cert. denied, 129 S. Ct. 594, 172 L. Ed. 2d 455 (2008).

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

For the ADA to yield its promise of equal access for the disabled, it may indeed be necessary

and desirable for committed individuals to bring serial litigation advancing the time when

public accommodations will be compliant with the ADA. But as important as this goal is to

disabled individuals and to the public, serial litigation can become vexatious when, as here, a

large number of nearly-identical complaints contain factual allegations that are contrived,

exaggerated, and defy common sense.170

Similarly, the court of appeals held that the district court was within its discretion to impose a

prefiling order. The Ninth Circuit observed “[t]hat the Frankovich Group filed numerous

complaints containing false factual allegations, thereby enabled Molski’s vexatious litigation,

provided the district court with sufficient grounds on which to base its discretionary imposition of

sanctions.”171

Other Judicial Decisions

In Ford v. Schering-Plough Corporation,172 the Third Circuit found a disparity in benefits for

physical and mental illnesses did not violate the ADA and found that the disability benefits at

issue did not fall within Title III. The court stated “This is in keeping with the host of examples of

public accommodations provided by the ADA, all of which refer to places.”173 This conclusion

was found to be in keeping with judicial decisions under Title II of the Civil Rights Act of 1964,

42 U.S.C. §2000(a).

Another issue under Title III is whether franchisers are subject to the Title. In Nef v. American

Dairy Queen Corp., the Fifth Circuit Court of Appeals found that a franchiser with limited control

over the store a franchisee runs is not covered under Title III of the ADA.174

Remedies

The remedies and procedures of Title II of the Civil Rights Act of 1964 are incorporated in Title

III of the ADA. Title II of the Civil Rights Act has generally been interpreted to include injunctive

relief, not damages. In addition, state and local governments can apply to the Attorney General to

certify that state or local building codes meet or exceed the minimum accessibility requirements

of the ADA. The Attorney General may bring pattern or practice suits with a maximum civil

penalty of $50,000 for the first violation and $100,000 for a violation in a subsequent case. The

monetary damages sought by the Attorney General do not include punitive damages. Courts may

also consider an entity’s “good faith” efforts in considering the amount of the civil penalty.

Factors to be considered in determining good faith include whether an entity could have

reasonably anticipated the need for an appropriate type of auxiliary aid to accommodate the

unique needs of a particular individual with a disability. Regulations relating to public

accommodations have been promulgated by the Department of Justice175 and regulations relating

170

Id. at 38.

Id. at 43.

172

145 F.3d 601(3d Cir. 1998), cert. denied, 525 U.S. 1093 (1999).

173

Id. at 612.

174

58 F.3d 1063 (5th Cir. 1995), cert. denied, 516 U.S. 1045 (1996).

175

28 C.F.R. Part 36.

171

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

to the transportation provisions of Title III have been promulgated by the Department of

Transportation.176

Telecommunications

Title IV of the ADA amends Title II of the Communications Act of 1934177 by adding a section

providing that the Federal Communications Commission shall ensure that interstate and intrastate

telecommunications relay services are available, to the extent possible and in the most efficient

manner, to hearing impaired and speech impaired individuals. Any television public service

announcement that is produced or funded in whole or part by any agency or instrumentality of the

federal government shall include closed captioning of the verbal content of the announcement.

The FCC is given enforcement authority with certain exceptions.178

Title V

Statutory Provisions

Title V contains an amalgam of provisions, several of which generated considerable controversy

during ADA debate. In addition, the ADA Amendments Act of 2008 contained some additions to

Title V.

Section 501 concerns the relationship of the ADA to other statutes and bodies of law. Subpart (a)

states that “except as otherwise provided in this act, nothing in the act shall be construed to apply

a lesser standard than the standards applied under Title V of the Rehabilitation Act ... or the

regulations issued by Federal agencies pursuant to such Title.” Subpart (b) provides that nothing

in the act shall be construed to invalidate or limit the remedies, rights, and procedures of any

federal, state, or local law that provides greater or equal protection. Nothing in the act is to be

construed to preclude the prohibition of or restrictions on smoking. Subpart (d) provides that the

act does not require an individual with a disability to accept an accommodation which that

individual chooses not to accept.179

Subpart (c) of Section 501 limits the application of the act with respect to the coverage of

insurance; however, the subsection may not be used as a subterfuge to evade the purposes of

Titles I and III. The exact parameters of insurance coverage under the ADA are somewhat

uncertain. As the EEOC has stated: “the interplay between the nondiscrimination principles of the

ADA and employer provided health insurance, which is predicated on the ability to make healthrelated distinctions, is both unique and complex.”180 The Eighth Circuit Court of Appeals in

176

49 C.F.R. Parts 27, 37, 38.

47 U.S.C. §§201 et seq.

178

47 U.S.C. §255. For an FCC discussion of closed captioning, see http://www.fcc.gov/cgb/consumerfacts/

closedcaption.html.

179

29 U.S.C. §§790 et seq.

180

EEOC, “Interim Policy Guidance on ADA and Health Insurance,” BNA’s Americans with Disabilities Act Manual

70:1051 (June 8, 1993). This guidance deals solely with the ADA implications of disability-based health insurance plan

distinctions and states that “insurance distinctions that are not based on disability, and that are applied equally to all

(continued...)

177

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

Henderson v. Bodine Aluminum, Inc. issued a preliminary injunction compelling the plaintiff’s

employer to pay for chemotherapy that required an autologous bone marrow transplant.181 The

plaintiff was diagnosed with an aggressive form of breast cancer and her oncologist

recommended entry into a clinical trial that randomly assigns half of its participants to high dose

chemotherapy that necessitates an autologous bone marrow transplant. Because of the possibility

that the plaintiff might have the more expensive bone marrow treatment, the employer’s health

plan refused to precertify the placement noting that the policy covered high dose chemotherapy

only for certain types of cancer, not breast cancer. The court concluded that, “if the evidence

shows that a given treatment is non-experimental—that is, if it is widespread, safe, and a

significant improvement on traditional therapies—and the plan provides the treatment for other

conditions directly comparable to the one at issue, the denial of treatment violates the ADA.”182

The ADA Amendments Act made several additions to Section 501. The act states that the ADA

does not alter eligibility standards for benefits under state workers’ compensation laws or under

state or federal disability benefit programs. P.L. 110-325 also states that nothing in the act alters

the provision of Section 302(b)(2)(A)(ii),183 specifying that reasonable modifications in policies,

practices, or procedures shall be required, unless an entity can demonstrate that making such

modifications in policies, practices, or procedures, including academic requirements in

postsecondary education, would fundamentally alter the nature of the goods, services, facilities,

privileges, advantages, or accommodations involved. The Senate Statement of Managers notes

that this provision was added at the request of the higher education community and “is included

solely to provide assurances that the bill does not alter current law with regard to the obligations

of academic institutions under the ADA, which we believe is already demonstrated in case law on

this topic.”184 The Managers’ Statement also noted that this provision “is unrelated to the purpose

of this legislation and should be given no meaning in interpreting the definition of disability.”185

The ADA Amendments Act specifically prohibits reverse discrimination claims and states that

nothing in the act shall provide the basis for a claim by a person without a disability that he or she

was subject to discrimination because of a lack of a disability. The rules of construction provide

that a covered entity under Title I, a public entity under Title II, or a person who operates a place

of public accommodation under Title III, need not provide a reasonable accommodation or a

reasonable modification to policies, practices, or procedures to an individual who meets the

definition of disability solely under the “regarded as” prong of the definition.

Section 502 abrogates the Eleventh Amendment state immunity from suit and was discussed

previously. Section 503 prohibits retaliation and coercion against an individual who has opposed

(...continued)

insured employees, do not discriminate on the basis of disability and so do not violate the ADA.”

181

70 F.3d 958 (8th Cir. 1995).

182

See also Rogers v. Department of Health and Environmental Control, 174 F.3d 431 (4th Cir. 1999), where the fourth

circuit court of appeals held that the ADA does not require employers to offer the same long-term disability insurance

benefits for mental and physical disabilities. For a more detailed discussion of the ADA and coverage of mental and

physical disabilities in insurance, see Matthew G. Simon, “Not All Illnesses Are Treated Equally - Does a Disability

Benefits Plan Violate the ADA by Providing Less Generous Long-Term Benefits for Mentally Disabled Employees

than for Physically Disabled Employees?” 8 U. Pa. J. Lab. & Emp. L. 943 (Summer 2006).

183

42 U.S.C. §12182(b)(2)(A)(ii).

184

153 CONG. REC. S. 8347 (September 11, 2008)(Statement of Managers to Accompany S. 3406) the Americans with

Disabilities Act Amendments Act of 2008).

185

Id.

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

an act or practice made unlawful by the ADA and was amended by the Lilly Ledbetter Fair Pay

Act, P.L. 111-2, to allow for increased compensation in cases of discrimination. Section 504

requires the Architectural and Transportation Barriers Compliance Board (ATBCB) to issue

guidelines regarding accessibility. Section 505 provides for attorneys’ fees in “any action or

administrative proceeding” under the act. Section 506, added by the ADA Amendments Act,

states that “[t]he authority to issue regulations granted to the Equal Employment Opportunity

Commission, the Attorney General, and the Secretary of Transportation under this Act, includes

the authority to issue regulations implementing the definitions contained in sections 3 and 4.”

Section 507 provides for technical assistance to help entities covered by the act in understanding

their responsibilities. Section 508 provides for a study by the National Council on Disability

regarding wilderness designations and wilderness land management practices and “reaffirms” that

nothing in the Wilderness Act is to be construed as prohibiting the use of a wheelchair in a

wilderness area by an individual whose disability requires the use of a wheelchair. Section 514

provides that “where appropriate and to the extent authorized by law, the use of alternative means

of dispute resolution ... is encouraged....”186 Section 515 provides for severability of any provision

of the act that is found to be unconstitutional.

The coverage of Congress was a major controversy during the House-Senate conference on the

ADA. Although the original language of the ADA did provide for some coverage of the

legislative branch, Congress expanded upon this in the Congressional Accountability Act, P.L.

104-1. The major area of expansion was the incorporation of remedies that were analogous to

those in the ADA applicable to the private sector.187

Buckhannon Board and Care Home, Inc. v. West Virginia and

Attorneys’ Fees

Section 505 of the ADA provides for attorneys’ fees in “any action or administrative proceeding”

under the act. This section was the subject of a Supreme Court decision in Buckhannon Board

and Care Home, Inc., v. West Virginia Department of Human Resources.188 In Buckhannon, the

Supreme Court addressed the “catalyst theory” of attorneys’ fees which posits that a plaintiff is a

prevailing party if the lawsuit brings about a voluntary change in the defendant’s conduct. The

Court rejected this theory finding that attorneys’ fees are only available where there is a judicially

sanctioned change in the legal relationship of the parties.

Statutes providing for the award of attorneys’ fees allow courts to make the awards to the

“prevailing party.” The question presented in Buckhannon was whether the term “prevailing

party” includes a party who did not secure a judgment on the merits or a court-ordered consent

decree, but has nonetheless achieved the desired result because the lawsuit has brought about a

voluntary change in the defendant’s conduct. The Court, in an opinion by then Chief Justice

Rehnquist, examined the ADA and the Fair Housing Amendments Act (FHAA)189 and held that

the term “prevailing party” cannot be interpreted in this manner, thus rejecting the concept of a

“catalyst theory.” Four other members of the Court, Justices O’Connor, Scalia, Kennedy, and

186

42 U.S.C. §12212.

Congress has also applied the employment and public accommodation provisions of the ADA to the Executive

Office of the President. P.L. 104-331 (October 26, 1996).

188

532 U.S. 598 (2001).

189

42 U.S.C. §3613(c)(2).

187

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

Thomas joined with the Chief Justice while Justices Ginsburg, Stevens, Souter and Breyer

dissented.

The Court first noted that in the United States parties are ordinarily required to bear their own

attorneys’ fees but that Congress has authorized the award of attorneys’ fees in numerous statutes

in addition to the ones at issue in Buckhannon. These fee-shifting provisions have been

interpreted in the same manner and the Court noted, citing to Hensley v. Eckerhart,190 that it

approached the attorneys’ fees provisions of the ADA and the FHAA in this manner.

Examining prior Supreme Court cases, Chief Justice Rehnquist found that a party receiving a

judgment on the merits would clearly have a basis on which attorneys’ fees might be awarded.

Similarly, the court found that settlement agreements enforced through a consent decree may

serve as the basis for an award of attorneys’ fees. The catalyst theory was seen as dissimilar from

these examples since “it allows an award where there is no judicially sanctioned change in the

legal relationship of the parties.”191 A voluntary change, even if it accomplished what the plaintiff

sought, the Court found, “lacks the necessary judicial imprimatur on the change.”192

Legislation Relating to the ADA in the

112th Congress

Changes in the ADA’s statutory language to address the issue of vexatious law suits have been

proposed since the 106th Congress.193 Proponents of such legislation have argued that notification

requirements would help prevent the filing of suits designed to generate money for plaintiffs and

law firms.194 Those opposed to the legislation have argued that it would undermine enforcement

of the ADA and that vexatious suits are best dealt with by state bar disciplinary procedures or by

the courts.195

On March 2, 2011, Representative Hunter introduced H.R. 881, the ADA Notification Act of

2011. H.R. 881 would add provisions to the remedies and procedures of Title III of the ADA

requiring a plaintiff to provide notice of an alleged violation to the defendant by registered mail.

If such notice is not provided, the bill would eliminate state or federal court jurisdiction for the

action.

190

461 U.S. 424 (1983).

532 U.S. 598, 605 (2001).

192

Id.

193

For a more detailed discussion, see CRS Report RS22296, The Americans with Disabilities Act: Legislation

Concerning Notification Prior to Initiating Legal Action, by (name redacted); Carri Becker, “Private Enforcement of

the Americans with Disabilities Act via Serial Litigation: Abusive or Commendable?,” 17 Hastings Women’s L.J. 93

(2006). See also the preceding discussion of judicial decisions under Title III, which have attempted to respond to the

issue of vexatious litigants.

194

See Testimony of the Honorable Mark Foley, hearing on H.R. 3590, The ADA Notification Act, Before the House

Committee on the Judiciary, Subcommittee on the Constitution, May 18, 2000, published at http://www.house.gov/

judiciary/fole0518.htm.

195

See Letter to Honorable Charles Canady, chairman, Subcommittee on the Constitution, House Committee on the

Judiciary from Robert Raben, Assistant Attorney General, reprinted at http://commdocs.house.gov/committees/

judiciary/hju66728.000/hju66728_0f.htm.

191

Congressional Research Service

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

Author Contact Information

Cynthia Brougher

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

Acknowledgments

This report was initially authored by (name redacted).

Congressional Research Service

EveryCRSReport.com

The Congressional Research Service (CRS) is a federal legislative branch agency, housed inside the

Library of Congress, charged with providing the United States Congress non-partisan advice on

issues that may come before Congress.

EveryCRSReport.com republishes CRS reports that are available to all Congressional staff. The

reports are not classified, and Members of Congress routinely make individual reports available to

the public.

Prior to our republication, we redacted names, phone numbers and email addresses of analysts

who produced the reports. We also added this page to the report. We have not intentionally made

any other changes to any report published on EveryCRSReport.com.

CRS reports, as a work of the United States government, are not subject to copyright protection in

the United States. Any CRS report may be reproduced and distributed in its entirety without

permission from CRS. However, as a CRS report may include copyrighted images or material from a

third party, you may need to obtain permission of the copyright holder if you wish to copy or

otherwise use copyrighted material.

Information in a CRS report should not be relied upon for purposes other than public

understanding of information that has been provided by CRS to members of Congress in

connection with CRS' institutional role.

EveryCRSReport.com is not a government website and is not affiliated with CRS. We do not claim

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.