As regular readers of The Employment Brief are aware, the Americans with Disabilities Act (ADA) provides the basis for many lawsuits filed by current and former employees. In the employment law arena, plaintiffs usually rely upon Title I of the ADA, which specifically prohibits employment discrimination based on a persons’ disability. 42 U.S.C. 12112(a).
Government employees, however, sometimes rely upon Title II of the ADA when filing suit for employment discrimination based on disability. Title II makes it unlawful for state and local governments to exclude eligible disabled persons from either “participation in” or “the benefits of” governmental “services, programs, or activities.” 42 U.S.C. § 12132. Title II further prohibits state and local governments from discriminating against eligible disabled persons.
Federal circuit courts are split as to whether Title II applies to disability discrimination in the public employment context. Until this month, two circuits — the Tenth Circuit (covering Utah, Wyoming, Colorado, New Mexico, Kansas, and Oklahoma) and the Ninth Circuit (covering Alaska, Hawaii, Arizona, Nevada, California, Idaho, Oregon, Washington, and Montana) — concluded that Title I is the exclusive remedy under the ADA for disability discrimination in employment. The Eleventh Circuit (covering Alabama, Georgia, and Florida) has concluded otherwise. This month, the Seventh Circuit (Wisconsin, Illinois, and Indiana) joined the Tenth and Ninth Circuits through its decision in Brumfield v. City of Chicago, Nos. 11-2265 and 11-3836 (Nov. 6 2013).
Linda Brumfield had been a city of Chicago police officer for eleven years when she was fired in 2010. She began to experience psychological problems in 2006, and the City required her to undergo periodic psychological evaluations to determine whether Brumfield was fit for duty. Brumfield was deemed fit for duty, however, she was suspended for 180 days in 2008. Brumfield was suspended a second time in March 2009 and a third time in September 2009. Following the third suspension, the Police Board upheld the City’s recommendation of discharge. Brumfield filed three lawsuits, one of which alleged employment discrimination under Title II of the ADA.
Affirming dismissal of Brumfield’s Title II claim, the Seventh Circuit recognized that employment discrimination claims must be brought under Title I of the ADA, which sets forth an administrative scheme for enforcement of disability discrimination claims and “specifically, comprehensively, and exclusively addresses disability discrimination in employment.” The court’s opinion explicitly rejects the U.S. Attorney General’s interpretation applying Title II to disability discrimination in public employment.