There is a Circuit split regarding whether Title II of the Americans with Disabilities Act (ADA) applies to employment discrimination claims. Compare Zimmerman v. Oregon DOJ, 170 F.3d 1169, 1182–84 (9th Cir. 1999) (does not) with Bledsoe v. Palm Beach Cty. Soil & Water Conservation Dist., 133 F.3d 816 (11th Cir. 1998) (does too). In the 1990s, other Circuits generally applied Title II to employment discrimination claims without analysis. See e.g., Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261 (4th Cir. 1995); Castellanoe v. City of New York, 142 F.3d 58 (2d. Cir. 1998); Holmes v. Texas A&M Univ., 145 F.3d 681, 682 (5th Cir. 1998).
But since around the time of the Supreme Court’s 2001 decision in Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 360 (U.S. 2001), the Circuits have questioned the applicability of Title II to the ADA, without directly addressing the issue. See McKibben v. Hamilton County, 215 F.3d 1327 (6th Cir. 2000); Lavia v. Pennsylvania, 224 F.3d 190, 195 n.2 (3d Cir. 2000); Perry v. State Ins. Fund, 83 Fed. Appx. 351, 354 n.1 (2d Cir. N.Y. 2003) (noting the Circuit split, but declining to analyze the issue); Carmona-Rivera v. Puerto Rico, 464 F.3d 14, 17 (1st Cir. 2006).
Now, in a thoughtful and clearly written opinion, the Tenth Circuit, following Zimmerman, has held that Title II does not apply to employment claims. Elwell v. Oklahoma Bd. of Regents, 2012 U.S. App. LEXIS 19102 (10th Cir. September 11, 2012). Elwell was an employee at the University of Oklahoma who suffered from a degenerative spinal disc condition. After she was fired, Elwell sued for alleged disability discrimination. She could have gone to the EEOC, obtained a right to sue letter, and pursued a claim under Title I of the ADA, which everyone recognizes covers employment discrimination. She chose not to do so.
The reason? After Garrett held that there was no abrogation of Eleventh Amendment immunity under Title I, any recovery under Title I for a state employee would be limited to injunctive relief (i.e., no money). So, looking to Bledsoe, Elwell instead alleged a violation of Title II – which prohibits disability discrimination in “services, programs, or activities of a public entity.” 42 U.S.C. § 12132. The district court dismissed her claim and Elwell appealed. Relying on Zimmerman, and cases decided after it, the Tenth Circuit held that the better reasoning is that Title II does not apply to employment discrimination.
Using the traditional tools of statutory construction, the court analyzed the first two clauses of Title II. The first clause prohibits exclusion from “services, programs, or activities of a public entity.” 42 U.S.C. § 12132. Like the Ninth Circuit, the Elwell court held that this clause applies to the “outputs” of the public entity, not the “inputs;” that is, Title II applies to the services rendered by the public entity, not by the employment of individuals who render the service. The second clause of Section 12132 prohibits discrimination by a public entity. The Elwell court, like the Zimmerman court, reasoned that this clause should be read in conjunction with the first clause.
Finally, to permit Title II to also cover employment discrimination claims would permit an individual to bypass the administrative scheme created by Congress to handle such claims. The court found this result to be untenable.