August 25, 2019

Tenth Circuit: Title II of ADA Does Not Permit Employment Discrimination Claim

The Tenth Circuit Court of Appeals published its opinion in Elwell v. State of Oklahoma on Tuesday, September 11, 2012.

Everyone agrees Title I of the Americans with Disabilities Act (ADA) authorizes the disabled to bring employment discrimination claims. But can a party bring an employment discrimination claim under Title II as well? This question has remained open in the Tenth Circuit until this case.

Plaintiff Elwell sued the University of Oklahoma for refusing to provide her requested accommodations for her degenerative spinal disc condition.  The District Court dismissed plaintiff’s ADA Title II claim stating it did not provide a cause of action for employment discrimination. Elwell appealed.

The relevant portion of the statute states as follows:

Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

42 U.S.C. § 12132.

The first clause prevents qualified individuals with a disability from being excluded from participation in or being denied benefits of services, programs or activities of a public entity. The second prevents qualified individuals from being subjected to discrimination by the public entity.

Beginning with the first clause, the question is whether “employment” can be described as a service, program or activity. The Tenth Circuit concluded that employing people is not a service, program or activity, but is rather a means the university uses to provide services, programs and activities. Accordingly, the first clause did not permit an employment discrimination claim.

The second clause prohibits the University from engaging in other forms of discrimination against the same individuals. In plaintiff’s view, the second clause applies the ADA’s anti-discrimination mandate to any operation of a public entity, including employment.

In holding the second clause does not permit an employment discrimination claim, the court pointed out that the statute prohibits discrimination only against “qualified individuals.” Congress defined qualified individuals to include only those individuals with a disability who meet eligibility requirements for the receipt of “services” or the participation in “programs” or “activities” provided by a public entity. Virtually every court to face the question has interpreted the words “services, programs and activities” to mean an agency’s “outputs.” The university’s “outputs” are its services, programs, and activities such as courses. Employing people isn’t a service, program, or activity: it is a means or method the university uses to provide its services, programs, and activities.  As much as every court to have faced the question agreed, the Tenth Circuit held the plain language of the statute does not reach employment.


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