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| [1] | UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT |
| [2] | No. 99-3863 |
| [3] | 2000.C03.0042158 <http://www.versuslaw.com> |
| [4] | August 8, 2000 |
| [5] | JEFFREY D. LAVIA V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, STATE CORRECTIONAL INSTITUTION AT GREENE, APPELLANT |
| [6] | On Appeal from the United States District Court for the Western District
of Pennsylvania (D.C. Civ. No. 99-cv-00445) District Judge: Honorable Donald
E. Ziegler |
| [7] | D. Michael Fisher Attorney General John G. Knorr, III (Argued) Chief Deputy
Attorney General Chief, Appellate Litigation Section Calvin R. Koons Senior
Deputy Attorney General Kemal A. Mericli Senior Deputy Attorney General
Office of the Attorney General 15th Floor, Strawberry Square Harrisburg,
PA 17120 Attorneys for Appellant John A. Adamczyk (Argued) 114 Smithfield
Street Pittsburgh, PA 15222 Attorney for Appelle |
| [8] | Before: Greenberg, McKEE and Garth, Circuit Judges |
| [9] | The opinion of the court was delivered by: Garth, Circuit Judge. |
| [10] | Argued: Tuesday, May 9, 2000 |
| [11] | Filed: August 8, 2000 |
| [12] | OPINION OF THE COURT |
| [13] | We are called upon to decide whether, in enacting Title I of the Americans
with Disabilities Act ("ADA"), Congress abrogated the States'
Eleventh Amendment sovereign immunity from suit pursuant to a valid exercise
of its S 5 power to enforce the Fourteenth Amendment. |
| [14] | In Kimel v. Florida Board of Regents, 120 S. Ct. 631 (2000), the Supreme
Court recently held that the Age Discrimination in Employment Act ("ADEA")
was not a valid exercise of Congress' S 5 enforcement power and as such
did not validly abrogate the States' Eleventh Amendment immunity. In light
of Kimel, and based on the terms of the statute and its legislative history,
we hold that the ADA is not a valid exercise of Congress' S 5 power and
accordingly does not abrogate the States' Eleventh Amendment immunity from
suit. To the extent that the District Court sustained Congress' authority
to use its S 5 power to enforce the Fourteenth Amendment by enacting Title
I of the ADA, we will reverse the District Court's decision. |
| [15] | I. |
| [16] | Lavia's complaint alleges that he began working for the Department of
Corrections in March 1991, and was then transferred to the State Correctional
Institute at Greene. Pennsylvania. In 1995, Lavia was promoted to Corrections
Officer II. In July 1996, Lavia suffered from a seizure and was diagnosed
with CNS Vasculitis of the brain. Lavia contends that his condition rendered
him "disabled," or that he was perceived as disabled within the
meaning of the ADA, 42 U.S.C. SS 12101 et seq. Against the recommendation
of his doctor, Lavia returned to work. He alleges that he was then harassed
at work because of his disability. Lavia continues to suffer the effects
of his medication that, he claims, cause psychotic reactions. Seemingly
as a result of these side effects, Lavia engaged in unspecified conduct
at work that resulted in disciplinary action by the Department. In May 1997,
Lavia was demoted to Corrections Officer I, and then in August of 1997 he
was terminated. |
| [17] | Lavia brought an action against the Commonwealth of Pennsylvania, Department
of Corrections, State Correctional Institute at Greene (hereinafter "the
Commonwealth" or "the State") seeking reinstatement, damages
and other relief under the ADA, the Vocational Rehabilitation Act, ("Rehabilitation
Act") 29 U.S.C. SS 701 et seq., and the Pennsylvania Human Relations
Act ("PHRA"), Pa. Stat. Ann., tit. 43, SS 951 et seq . The Commonwealth
moved to dismiss, arguing that it was immune from suit under the Eleventh
Amendment. On September 29, 1999, the District Court dismissed Lavia's claim
with respect to the PHRA, holding that the Eleventh Amendment bars consideration
of state law claims. The District Court, however, declined to dismiss Lavia's
federal claims under the ADA and the Rehabilitation Act, holding that in
each of those federal acts Congress had validly abrogated the States' Eleventh
Amendment immunity.*fn1 |
| [18] | On October 18, 1999, the Commonwealth appealed, challenging only Lavia's
claim under the ADA.*fn2
Such an order is immediately appealable under the collateral order doctrine
of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949); Puerto
Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S.
139 (1993); Acierno v. Cloutier, 40 F.3d 597 (3d Cir. 1994) (en banc). As
the issue presented is solely a question of law, this court's review is
plenary. See Kimel v. Florida Bd of Regents, 120 S. Ct. 631 (2000). |
| [19] | II. |
| [20] | Generally, states are immune from suit by private parties in the federal
courts. The Eleventh Amendment of the United States Constitution provides: |
| [21] | 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. U.S. Const. amend. XI. |
| [22] | Although this case involves a suit brought by a citizen against his own
state, the Eleventh Amendment has long been interpreted to prohibit such
suits as well. See, e.g. Kimel, 120 S. Ct. at 640 ("[F]or over a century
now, we have made clear that the Constitution does not provide for federal
jurisdiction over suits against non-consenting States." (citing e.g.,
College Sav. Bank v. Florida Prepaid Post-secondary Ed. Expense Bd., 527
U.S. 666, 669 (1999); Seminole Tribe v. Florida, 517 U.S. 44, 54 (1996));
Hans v. Louisiana, 134 U.S. 1, 13 (1890) ("It is inherent in the nature
of sovereignty not to be amenable to the suit of an individual without its
consent."). Moreover, the type of relief sought is irrelevant to the
question of Eleventh Amendment immunity. See Seminole Tribe , 517 U.S. at
58. |
| [23] | Because the Commonwealth of Pennsylvania's Department of Corrections is
a part of the executive department of the Commonwealth, see Pa. Stat. Ann.,
tit. 71 S 61, it shares in the Commonwealth's Eleventh Amendment immunity.
Such immunity, however, may be lost in one of two ways: (1) if the Commonwealth
waived its immunity; or (2) if Congress abrogated the States' immunity pursuant
to a valid exercise of its power. See College Sav. Bank, 527 U.S. at 670;
Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 240-41 (1985). |
| [24] | Waiver |
| [25] | A state may waive its Eleventh Amendment immunity and thus subject itself
to suit by private parties in federal court. See College Sav. Bank, 527
U.S. at 670. In this case, the Commonwealth did not waive its Eleventh Amendment
immunity. First, Pennsylvania's constitution states that "[s]uits may
be brought against the Commonwealth in such manner, in such courts and in
such cases as the Legislature may by law direct." Pa. Const. Art. 1,
S 11 (emphasis added). The Pennsylvania legislature has, by statute, expressly
declined to waive its Eleventh Amendment immunity. See Pa. Stat. Ann., tit.
42 S 8521(b) ("Nothing contained in this subchapter [on actions against
Commonwealth parties in civil actions and proceedings] shall be construed
to waive the immunity of the Commonwealth from suit in Federal courts guaranteed
by the Eleventh Amendment to the Constitution of the United States."). |
| [26] | The only argument Lavia presents that the Commonwealth has waived its
immunity is based on a December 17, 1997, Management Directive published
by the Governor's Office in which compliance with the ADA and the Rehabilitation
Act are stated as objectives. *fn3
This Management Directive, however, cannot be held to constitute a waiver
of the Commonwealth's immunity. First, it is not a waiver made by the legislature
-- as required by Pennsylvania's Constitution. Second, the Management Directive
itself limits enforcement "in accordance with applicable federal or
state acts or regulations." The applicable state laws do not indicate
that the Commonwealth has waived its Eleventh Amendment immunity. Thus,
the Commonwealth has not lost its Eleventh Amendment immunity by virtue
of waiver. |
| [27] | Congressional Abrogation |
| [28] | The second means by which the States' Eleventh Amendment immunity may
be lost is by valid congressional abrogation. See College Sav. Bank, 527
U.S. at 670. There is a "simple but stringent test" to determine
whether Congress has abrogated state immunity under the Eleventh Amendment.
Dellmuth v. Muth, 491 U.S. 223, 228 (1989). In this two-part test, a court
must first consider"whether Congress has `unequivocally expresse[d]
its intent to abrogate the immunity;' and second, whether Congress has acted
`pursuant to a valid exercise of power"' in abrogating state immunity.
Seminole Tribe, 517 U.S. at 55 (quoting Green v. Mansour, 474 U.S. 64, 68
(1985)); see also Kimel, 120 S. Ct. at 634-35; Atascadero, 473 U.S. at 242. |
| [29] | With respect to the ADA, Congress has unequivocally fulfilled the first
requirement by expressly stating its intent to abrogate the states' Eleventh
Amendment immunity. Section 12202 of the ADA provides that "[a] State
shall not be immune under the [E]leventh [A]mendment to the Constitution
of the United States from an action in Federal or State court of competent
jurisdiction for a violation of this chapter." 42 U.S.C. S 12202.*fn4
Therefore, the only remaining question is whether, in attempting to abrogate
the States' immunity for purposes of ADA litigation, Congress has acted
within the proper exercise of its power. |
| [30] | Although Congress has the authority to enact legislation under its Article
I powers, including its power under the Commerce Clause, such authority
does not permit Congress to nullify the States' Eleventh Amendment immunity.
See Seminole Tribe, 517 U.S. at 47; see also Kimel, 120 S. Ct. at 643; College
Sav. Bank , 527 U.S. at 672; Alden v. Maine, 527 U.S. 706, 713-14 (1999).
As such, if the ADA were based solely on Congress' Article I powers, Lavia
would not be able to sue the Commonwealth of Pennsylvania in federal court. |
| [31] | Congress does, however, have the authority to abrogate the States' Eleventh
Amendment immunity under its *fn5
power to enforce the Fourteenth Amendment. See U.S. CONST. amend. XIV, S
5; Kimel , 120 S. Ct. at 644; Seminole Tribe, 517 U.S. at 58-59 (citing
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)); College Sav. Bank, 527 U.S.
at 672; Florida Prepaid Post-secondary Educ. Expense Bd. v. College Sav.
Bank, 527 U.S. 627 (1998); Alden, 527 U.S. at 713-14. In relevant part,
the Fourteenth Amendment provides: |
| [32] | Section 1 . . . . 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. |
| [33] | To be a valid exercise of S 5 power, Congress must "identify conduct
transgressing the Fourteenth Amendment's substantive provisions, and must
tailor its legislative scheme to remedying or preventing such conduct."
Florida Prepaid, 527 U.S. at 639. "Congress' power under S 5 extends
only to `enforc[ing] the provisions of the Fourteenth Amendment." City
of Boerne v. Flores, 521 U.S. 507, 519 (1997). This power extends not only
to prohibiting conduct that is itself unconstitutional under the Fourteenth
Amendment, but also to conduct that, although not itself unconstitutional,
is deemed necessary in order to remedy or prevent unconstitutional conduct.
See Kimel, 120 S.Ct. at 644. This S 5 power, designed to serve a remedial
and corrective purpose rather than to impose new substantive rights, although
broad, is not unlimited. See id. (stating that Congress "`has been
given the power "to enforce," not the power to determine what
constitutes a constitutional violation."') (quoting City of Boerne,
521 U.S. at 519). |
| [34] | Moreover, because the Fourteenth Amendment provides strictures against
the State as distinct from societal or community actions, any exercise of
the S 5 power is confined to redressing state action, and private actions
are therefore irrelevant in the present context. See e.g., United States
v. Morrison, 120 S. Ct. 1740, 1756 (2000) ("recognizing "the time-honored
principle that the Fourteenth Amendment, by its very terms, prohibits only
state action . . . . `That Amendment erects no shield against merely private
conduct, however discriminatory or wrongful.") (quoting Shelley v.
Kraemer, 334 U.S. 1, 13 and n.12 (1948); see also Romer v. Evans, 517 U.S.
620, 628 (1996); Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982); United
States v. Harris, 106 U.S. 629, 639 (1883); Virginia v. Rives, 100 U.S.
313, 318 (1879) ("[T]hose provisions of the [F]ourteenth [A]mendment
have reference to State action exclusively, and not to any action of private
individuals") (internal quotations omitted)); United States v. Cruikshank,
92 U.S. 542, 554 (1875). |
| [35] | III. |
| [36] | Title I of the ADA |
| [37] | In order to determine whether the ADA is properly characterized as a remedial
enforcement statute, we first examine its scope. Congress "invoke[d]
the sweep of congressional authority, including the power to enforce the
[F]ourteenth [A]mendment and to regulate commerce, in order to address the
major areas of discrimination faced day-to-day by people with disabilities."
42 U.S.C. S 12101(b)(4). In doing so, Congress clearly defined the ADA's
purpose and made extensive findings with respect to the discrimination suffered
by the disabled in the United States.*fn6
Title I of the ADA covers all public and private employers, employment agencies
and labor unions, excepting small businesses and the federal government.
See id. SS 12111(2), (5), (7). It protects those qualified disabled individuals
"who, with or without reasonable accommodation, can perform the essential
functions of the employment position," id S 12111(8), from discrimination
in "the hiring, advancement, or discharge of employees, employment
compensation, job training and other terms, conditions, and privileges of
employment." Id . S 12112(a). |
| [38] | Prohibited discrimination under Title I of the ADA is not limited to purposeful
discrimination, but rather extends, for example, to "utilizing standards,
criteria, or methods of administration . . . that have the effect of discrimination."
Id S 12112(b)(3). Further, it includes the failure to make "reasonable
accommodation" to an applicant or employee's known physical or mental
limitations unless such accommodation would impose an "undue hardship"
on its business. See id. S 12112(b)(5)(A). In turn, an "undue hardship"
is defined as "an action requiring significant difficulty or expense,
when considered in light of [certain enumerated] factors." Id at S
12111(10)(A).*fn7
Such reasonable accommodations might include, although are not limited to,
altering the physical facilities, restructuring jobs and work schedules,
providing readers, interpreters or other such resources. See id. S 12111(9). |
| [39] | Additionally, Title I prohibits the use of standard tests and selection
criteria that "screen out or tend to screen out" persons with
disabilities. Id. S 12113(a). Such screening mechanisms are only permissible
if they are both" job-related" and "consistent with business
necessity" and that the work cannot be accomplished by a reasonable
accommodation. Id. Depending upon the context, the ADA also places the burden
on the employer to prove that its conduct was compelled by "business
necessity." Id. S 12113(a);*fn8
and requires the employer to accommodate the disabled and to provide "reasonable"
accommodations, even if there is a legitimate, rational reason for not wanting
to do so. Because the scope of Title I's coverage is so broad, Congress
seemingly found it necessary to specifically exclude from its coverage certain
screening techniques used to eliminate illegal drug and alcohol usage, and,
in certain circumstances, those individuals who pose a significant health
risk to others. See id at S 12114(a) and (c); S 12113(b) and (d)(2). |
| [40] | Relationship between ADA provisions and the Equal Protection Clause |
| [41] | Having identified the scope of the ADA's intended remedial purpose, we
look to whether the conduct targeted by the ADA constitutes either a direct
violation of the Fourteenth Amendment, or falls within the slightly "broader
swath" of conduct that can be regulated in order to prevent violations
of the Fourteenth Amendment. See Kimel, 120 S. Ct. at 644 (citing City of
Boerne, 521 U.S. at 518). "It is for Congress in the first instance
to `determin[e] whether and what legislation is needed to secure the guarantees
of the Fourteenth Amendment' [and Congress'] . . . conclusions are entitled
to much deference." City of Boerne, 521 U.S. at 536 (quoting Katzenbach
v. Morgan, 384 U.S. 641, 651 (1966)). Determining whether conduct violates
the Fourteenth Amendment, however, is the responsibility of the judiciary
and not of the legislature. See id . As such, Congress' own characterization
of the ADA as an enforcement statute protecting the Fourteenth Amendment
is not dispositive on the matter. |
| [42] | The Supreme Court explained in City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432 (1985), that under the Equal Protection Clause of the Fourteenth
Amendment, the mentally disabled are neither a suspect nor a quasi-suspect
class. See id. at 442-47; see also, Heller v. Doe, 509 U.S. 312, 321 (1993).*fn9
Thus, legislation affecting their interests need only pass a rational basis
test, which is the least demanding scrutiny required by the courts.*fn10
Under rational basis scrutiny, state action will survive as long as it merely
furthers a legitimate state interest. That is: |
| [43] | [i]f the classification has some reasonable basis, it does not offend
the Constitution simply because the classification is not made with mathematical
nicety or because in practice it results in some inequality. The problems
of government are practical ones and may justify, if they do not require,
rough accommodations -- illogical, it may be, and unscientific. Dandridge
v. Williams, 397 U.S. 471, 485 (1970) (internal citations and quotations
omitted). |
| [44] | Kimel instructed, in the context of age discrimination --which is subject
to rational basis scrutiny -- that "States may discriminate on the
basis of age without offending the Fourteenth Amendment if the age classification
in question is rationally related to a legitimate state interest. . . .
In contrast, when a State discriminates on the basis of race or gender [that
is, a suspect or quasi-suspect class] we require a tighter fit between the
discriminatory means and the legitimate ends they serve." Kimel, 120
S. Ct. at 646 (citations omitted). Similarly, here in the context of disability
discrimination, a State's decision to deny employment based upon a consideration
of an individual's disability as a generalization of their other qualities,
abilities, or characteristics will not offend the Equal Protection Clause
and its rational basis test, provided that it is rationally related to a
legitimate state interest and is not the result of purposeful discrimination.
See Washington v. Davis, 426 U.S. 229, 239-40 (1976). As the Supreme Court
in Kimel stated, "the [C]onstitution does not preclude reliance on
such [age disqualification] generalizations. That age [in Kimel] proves
to be an inaccurate proxy in any individual case in irrelevant." Kimel,
120 S. Ct. at 635. |
| [45] | In comparing the protections guaranteed to the disabled under the ADA,
see text supra, with those limited protections guaranteed under the rational
basis standard of the Fourteenth Amendment, it is clear that the former
imposes far greater obligations and responsibilities on the States than
does the latter. As such, the ADA cannot be seen as enforcing direct violations
of the Fourteenth Amendment. The mere fact, however, that the ADA proscribes
more conduct than what is prohibited by the Constitution is not itself fatal.
Indeed, the Supreme Court recently stated: |
| [46] | Congress' S 5 power is not confined to the enactment of legislation that
merely parrots the precise wording of the Fourteenth Amendment. Rather Congress'
power to enforce' the Amendment includes the authority both to remedy and
to deter violation of rights guaranteed thereunder by prohibiting a somewhat
broader swath of conduct, including that which is not itself forbidden by
the Amendment's text. Kimel, 120 S. Ct. at 644 (citing City of Boerne, 521
U.S. at 518) (emphasis added). |
| [47] | As such, "[l]egislation which deters or remedies constitutional violations
can fall within the sweep of Congress' enforcement power even if in the
process it prohibits conduct which is not itself unconstitutional."
City of Boerne, 521 U.S. at 518. This S 5 power, however, must still enforce
a constitutional violation and cannot "`decree the substance of the
Fourteenth Amendment's restrictions on the States."' Kimel, 120 S.
Ct. at 644 (quoting City of Boerne, 521 U.S. at 519). |
| [48] | Recognizing that "the line between measures that remedy or prevent
unconstitutional actions and measures that make a substantive change in
the governing law is not easy to discern," the Supreme Court has held
that "Congress must have wide latitude in determining where it lies."
City of Boerne, 521 U.S. at 520. Nevertheless, in order to constitute a
valid exercise of S 5 power, the Supreme Court still requires "a congruence
and proportionality between the injury to be prevented or remedied and the
means adopted to that end." Id. Indeed, several Supreme Court decisions
have recently held that Congress has exceeded the latitude of its S 5 powers.
See e.g., City of Boerne v. Flores, 521 U.S. 507 (1997); Florida Prepaid
Post-secondary Ed. Expense Bd. v. College Sav. Bank, 527 U.S. 627 (1998);
United States v. Morrison, 120 S. Ct. 1740 (2000). |
| [49] | For example, in City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme
Court held that the Religious Freedom Restoration Act ("RFRA")
was "so out of proportion to a supposed remedial or preventive object
that it [could not] be understood as responsive to or designed to prevent
unconstitutional behavior" because there was only "anecdotal evidence"
and no finding of a"widespread pattern of religious discrimination
in this country." Id. at 531-32. As such, Congress exceeded its S 5
enforcement power in enacting the RFRA. |
| [50] | Similarly, in Florida Prepaid Post-secondary Ed. Expense Bd. v. College
Sav. Bank, 527 U.S. 627 (1998), the Supreme Court held that in enacting
the Patent Remedy Act, Congress had exceeded its S 5 powers, noting that
Congress had "identified no pattern of patent infringement by the States,
let alone a pattern of constitutional violations." Id at 640. Indeed,
rather than trying to remedy unconstitutional conduct by the states, the
Court determined that Congress' true objective was to "provide a uniform
remedy .. . and to place States on the same footing as private parties under
that regime." Id at 647-48.*fn11 |
| [51] | In United States v. Morrison, 120 S. Ct. 1740 (2000), the Supreme Court
held that the civil remedy provision of the Violence Against Women Act,
("VAWA"), 42 U.S.C. S 13981 was not a valid exercise of S 5 enforcement
power. In emphasizing that the Fourteenth Amendment prohibits only state
action, and does not protect against wrongful conduct by private persons
or entities, the Supreme Court concluded that because VAWA was directed
"at individuals who have committed criminal acts motivated by gender
bias" rather than proscribing state violations of the Fourteenth Amendment,
it was not prophylactic legislation under S 5 that was congruent and proportionate
to the state violations to be remedied. Id. at 1758. As such, the Court
held that Congress exceeded its S 5 enforcement power in enacting VAWA.
See id. at 1756-58. |
| [52] | As we have previously discussed, of special significance here, the Supreme
Court held that Congress did not validly abrogate the States' Eleventh Amendment
immunity in enacting the ADEA because its substantive provisions imposed
burdens on state and local governments that were "disproportionate
to any unconstitutional conduct that conceivably could be targeted by the
Act." Kimel, 120 S. Ct. at 645. Even acknowledging that "[d]ifficult
and intractable problems often require powerful remedies" and that
it has "never held that S 5 precludes Congress from enacting reasonably
prophylactic legislation," the Supreme Court nevertheless concluded
that the ADEA was not "reasonably prophylactic legislation" but
rather a redefinition of the States' substantive obligations with respect
to the aged. Id. at 648. The Supreme Court explained that the ADEA, "through
its broad restriction on the use of age as a discriminating factor, prohibits
substantially more state employment decisions and practices than would likely
be held unconstitutional under the applicable equal protection, rational
basis standard." Id. at 647. Moreover, even with the ADEA's defenses
and exceptions to liability making its prohibitions less than absolute,
it still remained "a far cry from the rational basis standard,"
and as such did more than merely enforce direct violations of the Fourteenth
Amendment. Id. |
| [53] | The ADEA's legislative history, although revealing evidence of "substantial
age discrimination in the private sector," failed to identify "any
pattern of age discrimination by the States, much less any discrimination
whatsoever that rose to the level of constitutional violations." Id.
at 649 (emphasis added). Private sector discrimination, however, is "beside
the point" in a S 5 analysis which considers only state conduct. See
id. Importantly, the Court explained, "Congress' failure to uncover
any significant pattern of unconstitutional discrimination [by the States]
confirms that Congress had no reason to believe that broad prophylactic
legislation was necessary in this field." Id. at 650.*fn12
Therefore, the Supreme Court held that in enacting the ADEA, Congress did
not abrogate the States' Eleventh Amendment immunity pursuant to a valid
exercise of its S 5 enforcement powers. |
| [54] | IV. |
| [55] | Prior to the Kimel decision, but after the decisions in College Sav. Bank
v. Florida Prepaid Post-secondary Ed. Expense Bd., 527 U.S. 666 (1998),
Florida Prepaid Post-secondary Ed. Expense Bd. v. College Sav. Bank , 527
U.S. 627 (1998) City of Boerne v. Flores, 521 U.S. 507 (1999) and Seminole
Tribe v. Florida, 517 U.S. 44 (1996), several circuits had held that Congress
validly abrogated the States' Eleventh Amendment immunity in enacting Title
I of the ADA.*fn13
Serious doubts as to the viability of these decisions has been cast by the
Supreme Court's recent decision in Kimel, 120 S. Ct. 631 (2000), to which
we have previously referred. |
| [56] | Those cases emphasized the deference the courts should give to express
Congressional findings of pervasive discrimination against the disabled
and the ADA's stated remedial purpose. See, e.g., Martin v. Kansas, 190
F.3d 1120 (10th Cir. 1999); Coolbaugh v. Louisiana , 136 F.3d 430 (5th Cir.
1998) (quoting 42 U.S.C. S 12101(a) findings). Further, the Fifth Circuit
emphasized that, in concluding that discrimination against the disabled
was pervasive, Congress relied upon seven substantive studies and reports
documenting discrimination against the disabled, as well as testimonial
evidence of the same. See Coolbaugh , 136 F.3d at 436-37, 437 n.4 (quoting
from legislative history). These studies and testimonial evidence -- it
should be noted --concerned societal discrimination and not discrimination
by the States. |
| [57] | The Second Circuit's decision in Muller v. Costello, 187 F.3d 298 (2d
Cir. 1999), for example, specifically references the "hundreds of hours
[Congress spent] in hearings determining the scope of the problem and the
best manner to address it;" the fact that the ADA was designed to "combat
. . . irrational discrimination against persons with disabilities;"
and Congress' finding that "individuals with disabilities are a discrete
and insular minority" in concluding that the ADA was a "a proportionate
and congruent response to the discrimination that Congress sought to prohibit."
Id. at 308-09.*fn14
In siding with the other circuits which have so held, the Second Circuit
explained that the ADA was an extension of the Rehabilitation Act, applying
remedies based upon the anti-employment discrimination provisions of Title
VII of the Civil Rights Act of 1964. Interestingly, unlike the Supreme Court's
analysis in Kimel which focused on the lack of evidence of unconstitutional
state discrimination, none of these earlier circuit court cases address
the lack of widespread unconstitutional conduct by the states themselves.
Instead, they refer only to pervasive societal discrimination in general. |
| [58] | Since the Supreme Court decided Kimel, only a few courts have again dealt
with whether the ADA is a valid exercise of Congress' S 5 enforcement powers.
*fn15 The Second
Circuit applied, without explanation or analysis, its pre-Kimel decision
in Muller v. Costello, 187 F.3d 298 (2nd Cir. 1999). See Kilcullen v. New
York State Dep't of Labor, 205 F.3d 77 (2d Cir. 2000).*fn16
Similarly, in Davis v. Utah State Tax Comm'n, 96 F. Supp. 2d 1271 (D. Utah
2000), the District of Utah held that, bound by the Tenth Circuit pre-Kimel
precedent of Martin v. Kansas, 190 F.3d 1120 (10th Cir. 1999), it was obliged
to conclude that the States were not entitled to Eleventh Amendment immunity
with respect to suits brought under Title I of the ADA. Davis explained,
however, that even if it were not bound by Martin, even in light of Kimel
its own independent review would nevertheless yield the same conclusion.
See id (citing primarily to Judge Wood's dissent in Erickson , 207 F.3d
at 953, discussed in text infra.). |
| [59] | The most penetrating analysis, however, has been made by the Seventh Circuit
in Erickson v. Board of Governors, 207 F.3d 945 (7th Cir. 2000), and in
Stevens v. Illinois Dep't of Transportation, 210 F.3d 732 (7th Cir. 2000).*fn17
The Seventh Circuit correctly noted that the ADA, like the ADEA and the
RFRA, imposes upon the States far greater restrictions and obligations than
does the rational basis standard of the Fourteenth Amendment by, for example,
targeting an employer's "rational consideration of disabilities."
Erickson, 207 F.3d at 949. Indeed, the Seventh Circuit went so far as to
declare that "[b]ecause the ADA requires accommodation, forbids practices
with disparate impact, and disregards the employer's intent, it is harder
than the ADEA to characterize as a remedial measure" which is not as
broad in its prohibitions. Id . at 951. |
| [60] | We, like the Seventh Circuit, and in light of Kimel, emphasize the absence
of any evidence in the legislative history or in Congress' findings of pervasive
violations of the Fourteenth Amendment by the States with respect to the
disabled, to justify a prophylactic remedial enforcement measure that would
abrogate the States' Eleventh Amendment immunity. In emphasizing the lack
of evidence of unconstitutional state discrimination against the disabled,
we note that virtually every state in the country has enacted its own legislation
prohibiting discrimination against the disabled in employment,*fn18
and some have even enacted statutes advancing the explicit policy of encouraging
employment of the disabled in state government positions.*fn19
Nor, as the Seventh Circuit concluded in Stevens v. Illinois Dep't of Transp.,
207 F.3d 732 (7th Cir. 2000), is there any evidence "in the legislative
record that those States which do not have [statutes encouraging employment
of the disabled] are engaged in widespread discrimination against the disabled."
Id. at 740. |
| [61] | We, along with the Seventh Circuit, acknowledge that at times States may
falter in their efforts to eliminate discrimination against the disabled
in employment. Nevertheless, we agree that the broad sweep of the ADA is
out of proportion to the discrimination to be remedied. |
| [62] | Without more detailed findings concerning a nationwide pattern of arbitrary
and illegitimate discrimination against the disabled by the States, the
ADA cannot be viewed as a proportional and congruous response to the problem
of state-perpetrated discrimination against the disabled. While the ADA's
goal of eliminating discrimination may be a laudable aim for federal legislation,
it is not one which serves the purpose of enforcing the protections provided
by the Fourteenth Amendment. Id. (citing City of Boerne, 521 U.S. at 519). |
| [63] | Inasmuch as Congress is only authorized to exercise its S 5 power to remedy
constitutional violations when it is the States themselves engaged in unconstitutional
conduct and not private members of society and the community, and because
there is no evidence of state violations, we hold that Congress did not
validly abrogate the States' Eleventh Amendment immunity in enacting the
ADA. |
| [64] | In challenging such a conclusion, Lavia references the Governors' Committee
Reports which indicate that existing state laws have failed to adequately
protect the disabled against discrimination. See Appellee's Supplemental
Brief at 5 (citing HOUSE REP. N O. 101-485 (II), at 47 (1990), reprinted
in 1990 U.S.C.C.A.N. 445.). These reports, however, cannot overcome the
fact that they fail to indicate that the States themselves have unconstitutionally
discriminated against the disabled. Indeed, much of the discrimination faced
by the disabled to which Lavia refers either does not pertain to Title I
concerning employment or is explained under rational basis scrutiny as constitutionally
permissible under the Fourteenth Amendment.*fn20
Further, even if isolated instances of unconstitutional state discrimination
in employment against the disabled existed, or if one particular state regularly
violated the Equal Protection Clause, the Supreme Court has explained in
Kimel that evidence of such unconstitutional conduct by one or even a few
states is insufficient evidence of widespread State disregard of the Constitution
to justify the ADA's abrogation of all States' immunity. See Kimel, 120
S. Ct. at 649. |
| [65] | The only contrary arguments that have been generates thus far in published
courts of appeals decisions after Kimel, appear in the dissent in Erickson,
207 F.3d at 953.*fn21
Among other arguments set forth in the Erickson dissent, authored by Judge
Wood, are: that a more stringent standard of review ("careful scrutiny")
rather than a rational basis test should be utilized; that the disabled
are to be distinguished from the aged; that the ADA incorporates a proportionality
test required by the Constitution; and that state action may be implied
from the states' involvement in many areas in which the disabled have faced
discrimination. See id. Although those arguments are forceful and interesting,
we are not persuaded that they call for a result different from the one
we have reached. |
| [66] | Despite the latitude to be given to Congress, we are of the opinion that
in enacting the ADA, Congress exceeded its S 5 enforcement power. Without
any evidence of widespread discrimination against the disabled by the States,
Congress attempted, by modeling the ADA after the civil rights laws dealing
with race and sex discrimination, to expand and standardize the substantive
protections guaranteed to the disabled. See H.R. REP. NO . 101-485 (III),
at 26 (1990), reprinted in 1990 U.S.C.C.A.N. 449 ("The[ADA] completes
the circle begun [by the Rehabilitation Act] with respect to persons with
disabilities by extending to them the same civil rights protections provided
to women and minorities beginning in 1964.") (House Judiciary Committee
Report). Such substantive changes exceed Congress' S 5 power to enforce
the Fourteenth Amendment which provides less protections and only rational
basis scrutiny. As such, the ADA does not validly abrogate the States' Eleventh
Amendment immunity because, like the ADEA, the ADA attempts to "effectively
elevate[ ] the standard for analyzing [disability] discrimination to a heightened
scrutiny." Kimel, 120 S. Ct. at 648. |
| [67] | V. |
| [68] | Kimel's teachings, and the recent trend in Supreme Court jurisprudence
with respect to S 5 power, impels us to reverse the District Court's decision
with respect to Title I of the ADA and hold that Congress did not abrogate
the States' Eleventh Amendment immunity pursuant to a valid exercise of
its S 5 enforcement power. We will remand this case to the District Court
for further proceedings to address Lavia's claim under the Rehabilitation
Act.*fn22 See
note 2 supra. |
| [69] | A True Copy: |
| [70] | Teste: |
| [71] | Clerk of the United States Court of Appeals for the Third Circuit |
|
|
|
| Opinion Footnotes | |
|
|
|
| [72] | *fn1 . The District
Court relied on Martin v. Kansas, 190 F.3d 1120 (10th Cir. 1999); Muller
v. Costello,187 F.3d 298 (2nd Cir. 1999); Amos v. Maryland Dep't of Public
Safety and Correctional Servs., 178 F.3d 212, 218 (4th Cir. 1999) judgment
vacated en banc Dec. 28, 1999; Kimel v. Florida Bd of Regents, 139 F.3d
1426, 1433 (11th Cir. 1998), aff'd 120 S. Ct. 631 (2000) (addressing ADEA);
Coolbaugh v. Louisiana, 136 F.3d 430, 438 (5th Cir.), cert. denied, 525
U.S. 819 (1998); Clark v. California, 123 F.3d 1267 (9th Cir. 1997); Crawford
v. Indiana Dep't of Corrections, 115 F.3d 481, 487 (7th Cir. 1997), abrogated
by Erickson v. Board of Governors of State Colleges and Universities for
Northeastern Illinois Univ., 207 F.3d 945 (7th Cir. 2000) (addressing Title
II of the ADA). Each of the cases, however, upon which the District Court
relied have now been called into question by the Supreme Court's decision
in Kimel v. Florida Bd of Regents, 120 S.Ct. 631 (2000). The Supreme Court
held that in enacting the Age Discrimination in Employment Act ("ADEA"),
Congress had not abrogated the States' Eleventh Amendment immunity pursuant
to a valid exercise of its S 5 enforcement powers. Indeed, as discussed
infra in text, the Seventh Circuit has already questioned the ongoing validity
of its own Crawford decision with respect to Title II of the ADA in light
of the Kimel decision. See Erickson v. Board of Governors of State Colleges
and Universities for Northeastern Illinois Univ., 207 F.3d 945, 948 (7th
Cir. 2000). Further, the Seventh Circuit held that, in light of Kimel, Congress
did not validly abrogate the States' Eleventh Amendment immunity with respect
to Title I of the ADA -- the very issue before us on this appeal. See id.
at 952. See also Stevens v. Illinois Dep't of Transportation, 210 F.3d 732
(7th Cir. 2000). The Supreme Court has granted certiorari to address whether
both Title I and Title II of the ADA are valid exercises of Congress' S
5 power. See University of Ala. at Birmingham Bd. of Trustees v. Garrett,
120 S. Ct. 1669 (2000). Two prior cases in which certiorari had also been
granted to address these issues were later settled, and their appeals dismissed.
See Alsbrook v. Arkansas, 184 F.3d 999 (8th Cir. 1999), cert dismissed Alsbrook
v. Arkansas, 120 S.Ct. 1265 (U.S. March 1, 2000) (No. 99-423) (Title II
of the ADA); Dickson v. Florida Dep't of Corrections, 139 F.3d 1426 (11th
Cir. 1998), cert dismissed 120 S.Ct. 1236 (U.S. February 23, 2000) (No.
98-829). Hence, the Supreme Court has again granted certiorari, but has
not decided this issue as yet. |
| [73] | *fn2 . We limit
our review to whether Congress validly abrogated the States' Eleventh Amendment
immunity under Title I of the ADA. We do not consider whether Congress validly
abrogated the States' immunity under either Title II of the ADA or under
the Rehabilitation Act because the parties conceded at oral argument that
these Acts were not the subject of the appeal. Moreover, the record does
not disclose whether the Commonwealth receives federal funding such that
it would be subject to the Rehabilitation Act. We are similarly unable to
address whether Title II of the ADA was a valid exercise of Congress' S
5 power. Lavia's complaint does not specify under which Title his claim
is being brought, nor does the District Court's opinion reveal whether its
decision applied to Title II in addition to Title I. Additionally, there
is an underlying dispute among the circuits as to whether a public employee
is even entitled to sue under both Title I and Title II. Cf. Zimmerman v.
Oregon Dep't of Justice, 170 F.3d 1169 (9th Cir. 1999) (holding that Title
II does not apply to employment claims) with Bledsoe v. Palm Beach County
Soil & Water Conservation Dist., 133 F.3d 816 (11th Cir.) cert. denied
, 525 U.S. 826 (1998) (holding that employment claim may be brought under
Title II). In light of the parties' failure to focus their arguments on
Title II, the concessions made at oral argument, and particularly because
we cannot be certain as to whether Lavia even brought suit under Title II
in the first place, we decline to address or decide here any issue with
respect to Title II of the ADA. |
| [74] | *fn3 . That
directive states: [e]xternal enforcement may occur and complaints regarding
violations of disability-related laws may be filed with and processed through
federal agencies such as the EEOC or the United States Department of Justice
or state entities such as the Pennsylvania Human Relations Commission in
accordance with applicable federal or state acts or regulations. Commonwealth
of Pennsylvania, Governor's Office, Management Directive 205.25 Amended,
(reproduced in Appendix for Appellee) (emphasis added). |
| [75] | *fn4 . Indeed,
courts that have considered whether a state may be sued in federal court
under the ADA agree that the ADA satisfies this first prong of the Seminole
Tribe test. See, e.g. , Stevens v. Illinois Dep't of Transportation, 210
F.3d 732 (7th Cir. 2000); Erickson v. Board of Governors of State Colleges
and Univ. for Northeastern Ill. Univ., 207 F.3d 945 (7th Cir. 2000); Garrett
v. University of Alabama, 193 F.3d 1214 (11th Cir. 1999) cert. granted in
part, Univ. of Ala. at Birmingham Bd. of Trustees v. Garrett, 120 S. Ct.
1609 (2000); Alsbrook v. City of Maumelle, 184 F.3d 999 (8th Cir. 1999)
cert. dismissed 120 S. Ct. 1265 (2000); Martin v. Kansas, 190 F.3d 1120
(10th Cir. 1999); Muller v. Costello, 187 F.3d 298 (2nd Cir. 1999); Cooley
v. Mississippi Dep't of Transp., 96 F. Supp. 2d 565 (S.D. Miss. 2000); Davis
v. Utah State Tax Comm'n, 96 F. Supp. 2d 1271 (D. Utah 2000). |
| [76] | *fn5 . 42 U.S.C.
S 12101(b) sets forth Congress' purpose as follows: It is the purpose of
this chapter -- (1) to provide a clear and comprehensive national mandate
for the elimination of discrimination against individuals with disabilities;
(2) to provide clear, strong, consistent, enforceable standards addressing
discrimination against individuals with disabilities; (3) to ensure that
the Federal Government plays a central role in enforcing the standards established
in this chapter on behalf of individuals with disabilities; and (4) to invoke
the sweep of congressional authority, including the power to enforce the
fourteenth amendment and to regulate commerce, in order to address the major
areas of discrimination faced day-to-day by people with disabilities. |
| [77] | *fn6 . 42 U.S.C.
S 12101(a) lists Congress'findings: Congress finds that-- (1) some 43,000,000
Americans have one or more physical or mental disabilities, and this number
is increasing as the population as a whole is growing older; (2) historically,
society has tended to isolate and segregate individuals with disabilities,
and, despite some improvements, such forms of discrimination against individuals
with disabilities continue to be a serious and pervasive social problem;
(3) discrimination against individuals with disabilities persists in such
critical areas as employment, housing, public accommodations, education,
transportation, communication, recreation, institutionalization, health
services, voting, and access to public services; (4) unlike individuals
who have experienced discrimination on the basis of race, color, sex, national
origin, religion, or age, individuals who have experienced discrimination
on the basis of disability have often had no legal recourse to redress such
discrimination; (5) individuals with disabilities continually encounter
various forms of discrimination, including outright intentional exclusion,
the discriminatory effects of architectural, transportation, and communication
barriers, overprotective rules and policies, failure to make modifications
to existing facilities and practices, exclusionary qualification standards
and criteria, segregation, and relegation to lesser services, programs,
activities, benefits, jobs, or other opportunities; (6) census data, national
polls, and other studies have documented that people with disabilities,
as a group, occupy an inferior status in our society, and are severely disadvantaged
socially, vocationally, economically, and educationally; (7) individuals
with disabilities are a discrete and insular minority who have been faced
with restrictions and limitations, subjected to a history of purposeful
unequal treatment, and relegated to a position of political powerlessness
in our society, based on characteristics that are beyond the control of
such individuals and resulting from stereotypic assumptions not truly indicative
of the individual ability of such individuals to participate in, and contribute
to, society; (8) the Nation's proper goals regarding individuals with disabilities
are to assure equality of opportunity, full participation, independent living,
and economic self-sufficiency for such individuals; and (9) the continuing
existence of unfair and unnecessary discrimination and prejudice denies
people with disabilities the opportunity to compete on an equal basis and
to pursue those opportunities for which our free society is justifiably
famous, and costs the United States billions of dollars in unnecessary expenses
resulting from dependency and nonproductivity. |
| [78] | *fn7 . These
factors include, but are not limited to, reference to the nature and cost
of accommodation, the overall financial condition of the employer, the effect
and impact of such an expense on the resources of the employer, the number
of persons employed, and the type of work performed by the employer. See
42 U.S.C.S 12111(10)(B). |
| [79] | *fn8 . This
burden-shifting applies to claims of disparate treatment, and not to claims
for failure to reasonably accommodate. See Stevens v. Illinois Dep't of
Transp., 210 F.3d 732, 738 (7th Cir. 2000) (citing Pond v. Michelin N. Am.
Inc., 183 F.3d 592, 597 n.5 (7th Cir. 1999)). |
| [80] | *fn9 . Although
Cleburne addressed the mentally disabled, there is no reason to believe
that a different standard should or would apply to the physically disabled. |
| [81] | *fn10 . In
light of Cleburne, we give little weight to Congress' finding in 42 U.S.C.
S 12101(a)(7) that the disabled are a"discrete and insular minority"
-- a finding that might lead some to infer erroneously that a heightened
standard of scrutiny may be appropriate. |
| [82] | *fn11 . By
contrast, earlier Supreme Court decisions with respect to the Voting Rights
Act, for example, have been upheld. See e.g. South Carolina v. Katzenbach,
383 U.S. 301 (1966) (upholding ban on literacy tests for voters, even though
they were not, on their face, unconstitutional); Katzenbach v. Morgan, 384
U.S. 641 (1966) (upholding ban on literacy tests); Oregon v. Mitchell, 400
U.S. 112 (1970) (upholding five-year ban on literacy and other similar voting
requirements). The historical context of voting legislation, however, reveals
that state and local governments were engaged in widespread discrimination
against minorities and immigrants, using literacy tests to further their
unconstitutional discrimination. Further, prior less drastic legislation
aimed at curbing this unconstitutional discrimination had been unsuccessful.
See City of Boerne, 521 U.S. at 525-26. As such, the voting legislation
was a congruent and proportionate response to the unconstitutional harm
sought to be corrected, and did not serve to make substantive changes to
the governing law. |
| [83] | *fn12 . The
Court noted that "Congress made no such findings with respect to the
States. Although we [the Supreme Court] also have doubts whether the findings
Congress did make with respect to the private sector could be extrapolated
to support a finding of unconstitutional age discrimination in the public
sector, it is sufficient for these cases to note that Congress failed to
identify a widespread pattern of age discrimination by the States."
Id at 649. |
| [84] | *fn13 . See,
e.g, Amos v. Maryland Dep't of Pub. Safety & Correctional Servs., 178
F.3d 212 (4th Cir. 1999); Martin v. Kansas , 190 F.3d 1120 (10th Cir. 1999);
Kimel v. Florida Bd. of Regents, 139 F.3d 1426 (11th Cir. 1998), aff'd,
120 S. Ct. 631 (2000); Coolbaugh v. Louisiana, 136 F.3d 430, 437 (5th Cir.
1998); Clark v. California , 123 F.3d 1267 (9th Cir. 1997); Crawford v.
Indiana Dep't of Corrections , 115 F.3d 481 (7th Cir. 1997); Muller v. Costello,
187 F.3d 298 (2d Cir. 1999); Alsbrook v. City of Maumelle, 184 F.3d 999
(8th Cir. 1999)(en banc) (Title II); De Bose v. Nebraska, 186 F.3d 1087
(8th Cir. 1999), republished at 207 F.3d 1020 (8th Cir. 1999), petition
for cert filed 68 U.S.L.W. 3391 (U.S. Dec. 1, 1999) (No. 99-946) (extending
Alsbrook to Title I without further explanation or analysis). |
| [85] | *fn14 . The
Second Circuit pointed, for example, to the fact that the ADA required only
"reasonable accommodation" where such accommodation would not
impose an "undue hardship on the operation of the business" of
the employer. See Muller, 187 F.3d at 308-09 (citing 42 U.S.C. S 12112(b)(5)(A)
and (B)). |
| [86] | *fn15 . Only
the Eighth Circuit determined after City of Boerne but before Kimel that
S 5 does not supply the necessary legislative power to abrogate the States'
Eleventh Amendment immunity under either Titles I or II of the ADA. See
Alsbrook v. Maumelle, 184 F.3d 999 (8th Cir. 1999) (en banc); De Bose v.
Nebraska, 186 F.3d 1087 (8th Cir. 1999) republished at 207 F.3d 1020 (8th
Cir. 1999), (extending Alsbrook without further analysis or explanation)
petition for cert filed 68 U.S.L.W. 3391 (U.S. Dec. 1, 1999) (No. 99-946) |
| [87] | *fn16 . In
Erickson v. Board of Governors, 207 F.3d 945, 948 (7th Cir. 2000), Judge
Easterbrook wrote: "Believing that the Supreme Court would tackle the
issue [enforcement of the Fourteenth Amendment through the ADA] before July
[2000], the [S]econd[C]circuit declined to reconsider Muller in light of
Kimel." |
| [88] | *fn17 . Notably,
neither Lavia nor the Commonwealth cited or discussed the Erickson opinion
-- even though it had beenfiled prior to the date the parties submitted
their supplemental briefs to this Court. The Seventh Circuit has since reaffirmed
this holding twice, based on the reasoning presented in both Erickson and
Stevens. See Stanley v. Litscher, No. 99-3764, 2000 WL 626739 (7th Cir.
May 16, 2000) (Title II of ADA); Walker v. Snyder Jr., No. 38-3308, 2000
WL 626752 (7th Cir. May 16, 2000) (Title II of ADA). The Southern District
of Mississippi has also held, following Erickson, that Congress did not
validly abrogate the States' Eleventh Amendment immunity under Title I of
the ADA. See Cooley v. Mississippi Dep't of Transportation, 96 F. Supp.
2d 565 (S.D. Miss. 2000). |
| [89] | *fn18 . See
Ala. Code S 21-7-8; Alaska Stat. S 18.80.220; Ariz. Rev. Stat. S 41-1463;
Ark. Code Ann. S 11-13-110; Cal. Gov't Code S 12940; Colo. Rev. Stat. S
24-34-402; Conn. Gen. Stat. S 46a-60; Del. Code Ann. tit. 19, S 724; Fla.
Stat. ch. 760.10; Ga. Code Ann. S 34-6A-4; Haw. Rev. Stat. S 378-2; Idaho
Code S 67-5909; 775 Ill. Comp. Stat. 5/1-102; Ind. Code S 22-9-1-2; Iowa
Code S 216.6; Kan. Stat. Ann. 44-1001; Ky. Rev. Stat. Ann. S 207.150; La.
Rev. Stat. Ann.S 23:323; Me. Rev. Stat. Ann. tit. 5, S 4572; Md. Ann. Code
art. 49B, S 16; Mass. Gen. Laws ch. 93, S 103; Mich. Comp. Laws S 7.1202;
Minn. Stat. S 363.03; Miss. Code Ann. S 43- 6-15; Mo. Rev. Stat. S 213.055;
Mont. Code Ann. S 49-4-101; Neb. Rev. Stat. S 48-1104; Nev. Rev. Stat.S
613.310; N.H. Rev. Stat. Ann. S 354-A:7; N.J. Stat. Ann. S 10:5-4.1; N.M.
Stat. Ann. S 28-7-2; N.Y. Exec. Law S 296; N.C. Gen. Stat. S 168A-5; N.D.
Cent. Code S 14-02.4-03; Ohio Rev. Code S 4112.02; Okla. Stat. Ann. tit.
25, S 1302; Or. Rev. Stat. S 659.436; 43 Pa. Cons. Stat. S 955; R.I. Gen.
Laws S ; S.C. Code Ann. S 1-13-80; S.D. Codified Laws S 20-13- 10 Link ;
Tenn. Code Ann. S 8-50-103; Tex. Lab. Code S 21.128; Utah Code Ann. S 34A-5-106;
Vt. Stat. Ann. tit. 3, S 95; Va. Cde Ann. S 1.5- 41; Wash. Rev. Code S 49.60.180;
W. Va. Code S 5-11-9; Wis. Stat. S 11.31; Wyo. Stat. Ann. S 27-9-105. |
| [90] | *fn19 . See,
e.g., Ala. Code S 21-7-8; Alaska Stat. S 39.25.150; Ariz. Rev. Stat. S 41-783;
Ark. Code Ann. S 20-14-301; Colo. Rev. Stat. S 24-34-801; Conn. Gen. Stat.
S 46a-70; Fla. Stat. ch. 413-08; Ga. Code Ann. S 30-1-2; Haw. Rev. Stat.
S 347- 20; Idaho Code S 56-707; 775 Ill. Comp. Stat. 30/5; Ind. Code S 16-32-
3-5; Iowa CodeS 19B.2; Kan. Stat. Ann. 39- 1005; Me. Rev. Stat. Ann. tit.
17, S 1316; Md. Ann. Code art. 30, S 33; Minn. Stat. S 256C.01; Miss. Code
Ann. S 43-6-15; Mo. Rev. Stat. S 209.180; Mont. Code Ann. S 49-4- 202; Neb.
Rev. Stat. S 20-131; Nev. Rev. Stat. S 284.012; N.H. Rev. Stat. Ann.S 167-C:5;
N.J. Stat. Ann. S 11A:7-3; N.M. Stat. Ann. S 28-7-7; N.C. Gen. Stat. S 128-15.3;
N.D. Cent. Code S 25-13-05; Okla. Stat. Ann. tit. 74, S 840-2.9; R.I. Gen.
Laws S 28-5.1-4; S.C. Code Ann. S 43-33-60; Tenn. Code Ann. S 71-4-202;
Tex. Hum. Res. Code S 91.017; Utah Code Ann. S 26-30-3; Vt. Stat. Ann. tit.
21, S 309a; Va. Code Ann. S 51.5-41; Wash. Rev. Code S 70.84.080; Wis. Stat.
S 230.01. |
| [91] | *fn20 . Lavia
references, for example, the lack of necessary state and local emergency
911 numbers for the hearing and speech impaired; the ADA's impact on interstate
travel; the lack of TDD phones in the Vermont police; and the insufficient
number of lift-equipped buses in Vermont. See Appellee's Supplemental Brief
at 7 et seq. |
| [92] | *fn21 . This
dissent is also cited in Davis v. Utah State Tax Commission, 96 F. Supp.
2d 1271 (D. Utah 2000) which similarly held that the States were not entitled
to Eleventh Amendment immunity with respect to suits brought under Title
I of the ADA. |
| [93] | *fn22 . Because
the parties have not clarified whether Lavia's suit is also brought under
Title II of the ADA (concerning public accommodation) we do not remand for
further proceedings under Title II. However, because we are remanding to
the District Court for consideration of the Rehabilitation Act claim, which
the District Court determined should proceed and which we have been unable
to address here, see supra note 2, if the District Court, in its discretion,
determines that a Title II claim has been adequately pleaded and presented
by Lavia, the District Court may address that claim on remand as well. |
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