To Allow to Sue, or Not to Allow to Sue: Zimmerman v. Oregon Department of Justice Decides Title Ii of the Americans With Disabilities Act Does Not Apply to Employment Discrimination

Publication year2000
CitationVol. 24 No. 02



To Allow to Sue, or Not to Allow to Sue: Zimmerman v. Oregon Department of Justice Decides Title II of the Americans with Disabilities Act Does Not Apply to Employment Discrimination

Cabrelle Abel(fn*)

I. Introduction

When we attend Hamlet, we expect to see a young prince and hear his immortal words, "[t]o be, or not to be."(fn1) Although we may assume that the director or actors will allow themselves some creative latitude, the end result, Hamlet's deep despair and unfortunate death, is fixed. We certainly do not expect an actor to change the meaning of the play by saying the words while laughing hysterically or while standing on his head. Doing so would leave the language intact, but to change the meaning of those words is to change Shakespeare's intent.

Likewise, when we read a federal statute, we expect certain words to be contained within that statute and we expect those words to have certain meanings. As we read the statute, the clear and unambiguous words should be our guide to the statute's particular purpose. By reading the statute, in many instances, we know the end result. The interpretation and ultimate end of the statute should not change because a judge does not like the tragic ending.

Title I of the Americans with Disabilities Act (ADA) is labeled "Employment."(fn2) In Title I, we find rights, remedies, and procedures for those discriminated against in employment because of a disability. Title II of the ADA is labeled "Public Services."(fn3) Here, we find rights, remedies, and procedures, for those prevented from utilizing a public service because of a disability. The courts, however, have read the language of Title II differently.

Like an actor portraying a comedic Hamlet, many courts have read Title II to protect public employees from employment discrimination.(fn4) Yet there is no mention of employment in Title II. Recognizing this misinterpretation, in Zimmerman v. Oregon Dept. of Justice,(fn5) the Ninth Circuit held that the plain language of Title II clearly indicates that public employees may not bring an employment discrimination claim under Title II. Instead, public employees must sue under Title I, adhering to the same strict administrative requirements as private sector employees.(fn6)

Rather than allowing an actor to turn Hamlet into a comedy, the director might have him perform Much Ado About Nothing instead. Similarly, Congress gives the disabled protection from discrimination at public facilities in Title II. In Title I, Congress provides them with separate protection from employment discrimination. In the interest of judicial economy and avoiding frivolous law suits, the decision in Zimmerman was the correct interpretation of Title II.

In 1995, the Oregon Department of Justice hired Scot Zimmerman as a child support agent.(fn7) Because he suffered from a disabling eye condition, Mr. Zimmerman requested certain accommodations to do his job.(fn8) The Department refused to comply and fired Mr. Zimmerman within one year.(fn9) After his dismissal, Mr. Zimmerman failed to file a timely complaint with the Equal Employment Opportunity Commission (EEOC) prior to bringing suit, as required under Title I of the ADA.(fn10) Therefore, his Title I claim was dismissed.(fn11) Mr. Zim- merman also brought a claim under Title II as a public employee.(fn12) By also filing under Title II, Mr. Zimmerman was not required to first exhaust his administrative remedies.(fn13)

At trial, Mr. Zimmerman's Title II claim was dismissed pursuant to a federal rule 12(b)(6) motion.(fn14) The trial court held that Title II did not apply to employment because that would be inconsistent with the structure of the ADA as a whole.(fn15) Title I would become redundant as to public employees because they could bypass those administrative requirements and sue under Title II.(fn16) On appeal, the Ninth Circuit affirmed the trial court's decision.(fn17) Mr. Zimmerman petitioned the Ninth Circuit for rehearing en banc, but his request was denied.(fn18) Mr. Zimmerman then petitioned the U.S. Supreme Court for certiorari, but his petition was denied.(fn19)

This Note will analyze Title II and explain why, in the interests of judicial economy, the Zimmerman court correctly held that Title II does not apply to employment discrimination. First, this Note will discuss the particular wording of the ADA, specifically comparing the language of Title I to the language of Title II. Next, this Note will briefly consider the Rehabilitation Act of 1973, because Title II should be interpreted consistently with that Act.(fn20) Then, using the analysis announced by the Supreme Court in Chevron v. Natural Resources Defense Council, Inc.(fn21), this Note will examine the Title II regulations promulgated by the Department of Justice. Finally, this Note will analyze the five key arguments used by the Ninth Circuit in Zimmerman.

This analysis is critical to the interpretation of the ADA for several reasons. First, Zimmerman was decided in the face of considerable precedent to the contrary. As of today, at least five other circuits have held that Title II does apply to employment discrimination,(fn22) creating a split of authority among the circuits. Second, if public employees are allowed to bypass Title I and sue under Title II, Title I becomes redundant as to public employees, and congressional intent is ignored. By suing under Title II, public employees, unlike all other employees, are not required to obtain a right to sue letter from the EEOC.(fn23) Without requiring employees to exhaust administrative requirements that might provide a remedy in lieu of litigation, public employee claims bypass a legitimate screening mechanism intended to conserve judicial resources and give employers an opportunity to remedy violations prior to being brought into court. Public employees would be more protected than other employees, which might be an unfair advantage that Congress did not intend.

Additionally, many public employees already have state statutory provisions in place that protect them from employment discrimination. For example, Oregon's Revised Statutes, title 22, "Public Officers and Employees," chapter 241, "Civil Service for County Employees," contains a provision requiring that an employee be dismissed only for cause.(fn24) Similarly, certain specified Oregon State employees have the right to appeal their dismissals to the Employee Relations Board.(fn25) Washington also protects employees from dismissal and allows them to appeal to the Personnel Appeals Board under its "State Civil Service Law."(fn26)

Finally, a comparison of the ADA with other discrimination statutes demonstrates that Zimmerman applied the correct analysis. Under Title VII(fn27) and Title IX(fn28), all employees are required to exhaust administrative requirements before the EEOC prior to filing a discrimination suit. Title I of the ADA adopts the same administrative requirements as Title VII.(fn29) Thus, the ADA should be interpreted similarly.

As a particularly persuasive example of Congress' intent that public employees be held to the same standards as all other employees, consider the Government Employee Rights Act (GERA), passed one year after the ADA, which applies the same antidiscrimination laws to federal government employees excluded from the ADA.(fn30) The statute specifically states that federal employees must file a complaint with the EEOC and receive a right to sue letter.(fn31) These employees may not bypass the administrative requirements.(fn32) Allowing similarly situated state government employees to bypass administrative requirements and sue under Title II of the ADA would be irreconcilable. Because federal and state employees are so similar, it is inconsistent for Congress to allow state government employees one set of rights, while granting federal government employees not covered by the ADA another.


Title II: "What Do You Read My Lord?"

"Words, Words, words"(fn33)

Title I of the ADA is titled "Employment,"(fn34) while Title II is titled "Public Services."(fn35) While a title does not tell all about a particular statute, it is a good starting point. Title I is a comprehensive employment statute that details everything from how one with a disability might be discriminated against in the workplace,(fn36) to who is considered an employer,(fn37) to what an employee must do in order to file suit.(fn38) Congress intended employment discrimination to fall under "Employment," or it likely would not have taken up several pages in the United States Code with such specific employment provisions.

In contrast, Title II does not contain the word "employment," "employer," or "employee." Instead, Title II defines "public entity"(fn39) and discusses architectural, communication, and transportation barriers to services.(fn40) One might suspect that because Congress so thoroughly detailed employment discrimination in Title I, where all employees-public employees included-may file a complaint, no need existed to address the issue in Title II.

However, even though the words "employment discrimination" are not found in Title II, the courts have adopted various ways of reading the statute so that it might encompass employment. Ignoring the clear language of...

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