Author:George Rutherglen

Two statutes prohibit discrimination on the basis of disabilities: the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990 (ADA). The ADA expanded upon the coverage of the Rehabilitation Act, reaching all employers with at least fifteen employees,[797]

while the Rehabilitation Act applies only to the federal government, federally funded programs, and federal contractors.[798] Both acts also apply to outside employment, but again, the ADA is broader because it covers all public services and public accommodations, including those operated by private entities.[799] Much of the case law has developed under the Rehabilitation Act, and most of it applies, with appropriate modifications, to the ADA. The ADA itself codifies the principle that its protections for persons with disabilities are at least as strong as those under the Rehabilitation Act.[800] Accordingly, this section begins with a discussion of the Rehabilitation Act because it provides the foundation for the ADA.

Rehabilitation Act of 1973

The Rehabilitation Act has three different provisions that apply to employment: section 501 prohibits discrimination and requires affirmative action in favor of the disabled by federal agencies;s[801] section 503 requires federal contractors to "take affirmative action to employ and advance in employment qualified handicapped individuals";[802] and section 504 prohibits exclusion of, and discrimination against, otherwise qualified handicapped individuals in federally assisted programs by federal agencies and by the Postal Service.[803] All three sections are subject to exceptions for various disabilities that Congress found to be morally wrong (such as the use of illegal drugs),"[804] and sections 503 and 504 (but not section 501) are subject to an exception for alcoholism and for infectious diseases that "constitute a direct threat to the health or safety of other individuals" or that prevent the infected individual from performing the duties of the job.[805]

Sections 501 and 503 both impose an obligation on employers to engage in affirmative action. This obligation has seldom directly given rise to litigation, however. Federal employees have a cause of action for any violation of section 501,[806] as do victims of discrimination under section 504.[807] However, the employees of federal contractors have no private cause of action, either explicitly granted by section 503 or implied by the lower federal courts.[808] Litigation over affirmative action has arisen only indirectly, through claims of discrimination by federal employees brought under both section 501 and section 504.

The lower federal courts have generally imposed heavier obligations upon federal employers than on private employers, especially to reasonably accommodate the disabled.[809] Following regulations of the EEOC, the federal courts have required the federal government to be "a model employer" of the disabled.[810] The theory of disparate impact is available to prove violations of section 504.[811]

The Rehabilitation Act only protects an "individual with a disability," which is defined as "any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment."[812] The ADA uses essentially the same language in defining a covered "disability" and for that reason, the decisions on this question are taken up later in this monograph in a separate section discussing decisions under both statutes.[813]

Only after the plaintiff establishes the existence of a disability does the question whether the plaintiff is "otherwise qualified" for the job arise. Section 504 protects only "a qualified handicapped individual."[814] It protects such individuals from discrimination, and by regulations, it also gives them the right to reasonable accommodation of their disabilities.[815] A fundamental problem under both the Rehabilitation Act and the ADA is determining where the plaintiffs burden of proving qualifications leaves off and the defendant's burden of proving reasonable accommodations begins. The regulations address this problem by assigning to the employer the burden of proving that a proposed accommodation would result in "an undue hardship on the operation of its program."[816] The regulations leave to judicial decisions, however, the interrelated questions of who is a "qualified individual," what is a "reasonable accommodation," and what amounts to an "undue hardship." A discussion of these decisions, again raising issues common to the Rehabilitation Act and the ADA, is presented in a separate section on decisions under both statutes.

Several other issues concerned with the coverage and scope of the Rehabilitation Act have been resolved, either by the Supreme Court or by Congress. After decisions of the Supreme Court narrowly defined the scope of a federally assisted "program or activity,"[817] Congress added an amendment broadly defining these terms to include all parts of an organization if any one part received federal assistance.[818] In separate legislation, Congress also tried to supersede a Supreme Court decision preventing the recovery of damages against states and their instrumentalities.[819] These amendments, although they expressly impose liability upon the states, may themselves exceed the power of Congress to abrogate the immunity of the states under the Eleventh Amendment.[820] At least as the statute now reads, remedies are available against recipients of federal funds on the same terms as they are under Title VI of the Civil Rights Act of 1964,[821] including the award of back pays[822] and attorney's fees.[823] Damages and the right to jury trial are available for intentional violations of section 501 on the same terms as they are for violations of Title VII.[824] Punitive damages, however, are not available in private actions against public entities that receive federal funds.[825] Neither are damages for failure to make a reasonable accommodation if the employer has made a good-faith effort to provide a reasonable accommodation in consultation with the disabled individual.[826]

Americans with Disabilities Act

Title I of the Americans with Disabilities Act (ADA) closely follows Title VII of the Civil Rights Act of 1964, expanding upon the Rehabilitation Act to cover almost all employers. Like Title VII, it covers employers with fifteen or more employees,[827] including employees of state and local government, but not the federal government. The latter are covered entirely by the Rehabilitation Act."[828] The ADA also contains the same provisions as Title VII for coverage in foreign countries, creating exceptions for compliance with the laws of other countries and for foreign corporations not controlled by a covered employer.[829]

The fundamental prohibition in the ADA is against discrimination on the basis of disability,[830] in terms that follow the corresponding prohibition in Title VII.[831] This prohibition is augmented by a prohibition against retaliation, again modeled on the corresponding prohibition in Title VII.[832] The ADA elaborates on the provisions of Title VII in offering a definition of "discriminate," or at least a series of activities included within the definition. The first of these activities includes various forms of prohibited segregation,[833] in language again taken from Title VII.[834] Several others are concerned with evasion of the ADA by contracting for discrimination by others or perpetuating the effects of their discrimination.[835] These follow case law that has developed in decisions under Title VII on the issue of agency[836] or under the theory of disparate impact.[837] The theory of disparate impact itself is codified in terms that were then partly incorporated into Title VII by the Civil Rights Act of 1991.[838] Another subdivision codifies the obligation to reasonably accommodate disabilities,[839] which was taken from regulations under the Rehabilitation Act that were themselves derived from the obligation to reasonably accommodate religious practices under Title VII.[840] A unique prohibition imposes detailed restrictions on medical examinations and inquiries, prohibiting most such examinations and inquiries before an offer of employment, but allowing some before an applicant actually begins employment.[841]

The ADA is also subject to a number of special exceptions and defenses. Several of the exceptions are modeled on, or even taken from, the exceptions to the Rehabilitation Act for conditions that Congress found unworthy of coverage. These exceptions concern activities or conditions like the illegal use of drugs and alcohol,[842] transvestitism and homosexuality,[843] and compulsive gambling, kleptomania, and pyromania.[844] Having a record of certain of these disabilities, such as drug addiction and alcoholism, can still result in coverage un der the ADA."[845] Other provisions are unique to the ADA: a general defense, apparently to claims for disparate treatment as well as disparate impact, that a job requirement is "job-related and consistent with business necessity" and that it cannot be modified by reasonable accommodation of the disabled;"[846] a more specific defense that must meet the same conditions but is limited to the requirement "that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace;"[847] an exception for infectious and communicable diseases, but again subject to the duty of reasonable accommodation;[848] and an exception for insurance plans, provided that they are not used as a subterfuge to avoid the purposes of the law.[849]

Of these provisions, only the "direct threat" defense has been considered by the Supreme Court. In Chevron U.S.A. Inc. v. Echazabal,[850] the Court upheld an EEOC regulation that extended this defense from...

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