Americans With Disabilities Act 42 U.S.C. 12101 (1990) (Update)

• Author: Ruth Colker
• Pages: 87-88

Page 87

The Americans with Disabilities Act (ADA) was signed into law on July 26, 1990, and became effective two years later. Title I of the statute prohibits EMPLOYMENT DISCRIMINATION on the basis of disability in the private sector, Title II prohibits discrimination in the provision of goods or services by public entities, and Title III prohibits discrimination in the provision of goods or services by PUBLIC ACCOMMODATIONS including a requirement of removal of barriers to access.

To justify the constitutionality of ADA, Congress invoked "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" in its statement of purpose. Consistent with that declaration, it defined an employer under Title I as a "person engaged in an industry affecting commerce." Similarly, it defined a public accommodation in Title III as one of various entities like an inn or motel "if the operations of such entities affect commerce." Thus, Congress was careful to draft Titles I and III so that their constitutionality would be upheld under congressional power to regulate INTER-STATE COMMERCE.

Title II, however, could not be justified under the COMMERCE CLAUSE because it created a private right of action against state government. Because of the SOVEREIGN IMMUNITY of the states recognized by the ELEVENTH AMENDMENT, that kind of right can only be created pursuant to the FOURTEENTH AMENDMENT, SECTION 5 enforcement power. Hence, Congress also justified its authority for enacting ADA pursuant to the FOURTEENTH AMENDMENT.

Despite the care with which Congress drafted ADA to ensure its constitutionality, there have been numerous constitutional challenges to Title II of ADA. In each case, a state was sued by a private citizen under Title II and responded that the Eleventh Amendment barred suit for damages. The appellate courts rejected this argument, finding that Congress effectively abrogated states' Eleventh Amendment sovereign immunity from suits under ADA, pursuant to its Fourteenth Amendment enforcement power.

The Eleventh Amendment states: "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." This provision also prohibits suits...