Chapter 5 - § 5.10 • OTHER ISSUES

• Jurisdiction: Colorado

§ 5.10 • OTHER ISSUES

Although there are too many evolving issues under the ADA to discuss fully here, three issues that are receiving a great deal of attention concern: (1) the constitutionality of the ADA as applied to states; (2) the interplay between disability benefits and the ADA; (3) class actions under the ADA; (4) administrative prerequisites for an ADA claim; and (5) the COVID-19 pandemic.

§ 5.10.1—Constitutionality Of The ADA As Applied To States

As part of a wave of decisions construing the protection afforded states by the Eleventh Amendment from suit in federal court, the Supreme Court in Board of Trustees v. Garrett, 531 U.S. 356 (2001), held that the Eleventh Amendment bars individuals from recovering monetary damages from state governments under Title I of the ADA. The Court limited the scope of the Garrett decision in several important respects. First, although the parties to Garrett had originally asked the Supreme Court to decide both Title I and Title II, the Court only decided Title I, and explicitly stated, "We are not disposed to decide the constitutional issue whether Title II, which has somewhat different remedial provisions from Title I, is appropriate legislation under § 5 of the Fourteenth Amendment. . . ." Id. at 360, n. 1. Second, the Court made clear that, under the doctrine of Ex Parte Young, 209 U.S. 123 (1908), the Eleventh Amendment does not bar actions seeking injunctive — as opposed to monetary — relief by individuals against states. Id. at 374, n. 9. Finally, the Garrett decision also made clear that immunity from damages suits "does not extend . . . to units of local government." Thus, lawsuits seeking both injunctive and monetary relief are still available against local governments and public entities that are not the state. Id. at 369.

Although neither the U.S. Supreme Court nor the Tenth Circuit have explicitly held that the Eleventh Amendment bars retaliation claims pursuant to Title VI of the ADA, a number of other circuit and district courts have ruled as such where the retaliation is tied to actions based upon the plaintiff's employment. Levy v. Kan. Dep't of Soc. & Rehab. Servs., 789 F.3d 1164, 1169 (10th Cir. 2015) (identifying several such cases).

§ 5.10.2—Relationship Of Social Security And Other Disability Claims To A Claim Of Disability Discrimination Under The ADA

After an injury, many workers apply for disability benefits, including Social Security benefits, that require them to swear that they are...