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Americans with Disabilities Act

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Brief - ADA Employment Provisions Do Not Apply To The States - Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001)

Over the last 5 years, one of the most bitterly contested issues before the United States Supreme Court is the extent that Congress may abrogate the states' 11th Amendment immunity to lawsuits.  The 11th Amendment provides:

"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."

Since traditional principles of sovereign immunity prohibited citizens from suing their own state without it's permission, this effectively shields states from private lawsuits.  It does allow the federal government to sue the states on its own behalf and the behalf of citizens of the state or of other states.  The 11th amendment was modified by the 13th and 14th amendments which were passed in the wake of the Civil War and were originally intended to remedy invidious effects of slavery.  Section 1 of the 14th Amendment provides, in relevant part:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Section 5 of the 14th Amendment gives Congress the power to pass appropriate legislation to enforce the provisions of Section 1.  The controversy arises over what is appropriate legislation.  Traditionally the Court would accept most laws passed by Congress that allowed citizens to sue states if it just recited that it was remedying some important problem under its 14th Amendment authority.  In a series of bitter 5-4 cases the conservative members of the court have begun to demand evidence that there really has been pervasive discrimination by the states before accepting that the law was a valid exercise of 14th Amendment, Section 5 power to abrogate the states' 11th Amendment immunity.  In a series of cases the Court found that Congress did not have the power, thus preventing it from giving citizens the right to sue states for actions such as age discrimination.  In this closely watched case, the Court reviewed the employment provisions of the Americans with Disabilities Act to determine if there was sufficient evidence of state discrimination against the disabled to justify abrogating the states' immunity for money damage claims under the ADA.

The key to the Court's analysis is whether the discrimination that Congress is seeking to remedy falls into a constitutionally suspect class such as race.  If the discrimination is against a suspect class, the analysis is strict and a state's right to discriminate against that gr0up is very limited.  If the persons are not in a suspect class, then the states must only show a rational basis for their actions against the persons in the class.  In retrospect, the bellwether case was In Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 (1985), which held:

"if the large and amorphous class of the mentally retarded were deemed quasi-suspect for the reasons given by the Court of Appeals, it would be difficult to find a principled way to distinguish a variety of other groups who have perhaps immutable disabilities setting them off from others, who cannot themselves mandate the desired legislative responses, and who can claim some degree of prejudice from at least part of the public at large. One need mention in this respect only the aging, the disabled, the mentally ill, and the infirm. We are reluctant to set out on that course, and we decline to do so."

In subsequent cases, including the instant case, the court has systematically carried out this mandate and struck down laws that give persons who were not in suspect classes the right to sue states for money damages.  In Garrett, the Court looked to whether Congress showed that there was systematic, unreasonable discrimination against the disabled by the states.  While Congress had a lot of anecdotal reports of discrimination by the states, it did not do a rigorous study of state employment decisions and thus did not meet the Court's standard for showing pervasive discrimination by the states.  The court rejected the argument that there was such evidence against local government state actors because local government is not sheltered by 11th amendment immunity and can be sued by citizens.  More fundamentally, the court was concerned that the ADA did not demand equal treatment of the disabled and non-disabled workers, but requires employers to make substantial and potentially very expensive accommodations to allow disabled workers to hold jobs - a classic unfunded mandate.  Thus the court says:

"For example, whereas it would be entirely rational (and therefore constitutional) for a state employer to conserve scarce financial resources by hiring employees who are able to use existing facilities, the ADA requires employers to "mak[e] existing facilities used by employees readily accessible to and usable by individuals with disabilities." 42 U. S. C. 12112(5)(B), 12111(9). The ADA does except employers from the "reasonable accommodatio[n]" requirement where the employer "can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." 12112(b)(5)(A). However, even with this exception, the accommodation duty far exceeds what is constitutionally required in that it makes unlawful a range of alternate responses that would be reasonable but would fall short of imposing an "undue burden" upon the employer. The Act also makes it the employer's duty to prove that it would suffer such a burden, instead of requiring (as the Constitution does) that the complaining party negate reasonable bases for the employer's decision."

The court held that the ADA provisions allowing citizens to sue states for money damages is unconstitutional.  The court left intact the right of the Federal government to sue the states on the behalf of such persons, although it is open question whether the Federal government itself is limited to suing for constitutional violations and not the broad reach of the ADA.  Citizens can also sue under 42 USC 1983, if they can show the discrimination reached constitutional proportions.  The court did not address the facilities portion of the ADA as it applies to non-employees, but it would seem that it is on even shakier ground than the employment sections.  While the decision leaves the ADA in place against local government entities, it reaches all state employes, including those at universities. One interesting question not before the court is whether persons who are wrongfully perceived as disabled have a cause of action, because they raise none of the Court's objections based on allocation of state resources - it costs the state nothing to hire someone who does no require an accommodation.

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