Disabled people cannot bring employment discrimination claims under ADA’s Title II

10th Circuit sets public employers' minds at rest, invoking 11th Amendment immunity

The 10th Circuit in Elwell v. State of Oklahoma offered public employers the peace of mind that they are not subject to discrimination claims under Title II of the Americans with Disabilities Act (ADA). With this Sept. 11, 2012, decision, the 10th Circuit joined the majority of other circuit courts in so finding. (Only the 11th Circuit has disagreed; see “Standout Circuit.”)

Judy Elwell worked for the University of Oklahoma doing office work such as researching and writing. She developed a degenerative spinal disc condition for which she sought accommodations, though she said her condition did not prevent her from doing the essential functions of her job. In this case, Elwell accused the university of refusing to provide accommodations and firing her because of her disability. She brought claims under both Title II of the ADA and the Oklahoma Anti-Discrimination Act (OADA).

The district court found that Title II does not have cause of action for employment discrimination, and the University of Oklahoma, as a state entity, has immunity from discrimination claims because the state did not waive its immunity to allow claims under OADA. The 10th Circuit upheld this ruling.

The ADA statutory language in question was: “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.”

The 10th Circuit reasoned that the services, programs and activities discussed in the statute were the “outputs” of a public entity, and that employment was really more of an “input,” and therefore not covered by that language. “If Congress had wanted to prohibit discrimination in all aspects of a public entity’s operations, it easily could have said just that—indeed, it has in other anti-discrimination statutes,” the decision reads.

The court also noted that each title of the ADA was intended to serve a separate purpose, and that Title I is the only recourse for employment discrimination. 

“Title I was intended by Congress to be the full scope of relief available to an employee who asserted any kind of employment discrimination claim,” says Theodore Olsen, a partner at Sherman & Howard. “If Title II or Title III are treated as overlapping Title I, it then renders certain provisions of Title I superfluous.”

11th Amendment Immunity

The 10th Circuit dismissed Elwell’s claims under OADA because the state of Oklahoma has sovereign immunity from lawsuits under the 11th Amendment. Elwell argued that OADA provided a cause of action against “any person” who commits employment discrimination based on disability, and that the statute defined a “person” to include “the state, or any governmental entity or agency.” 

However, the 10th Circuit relied on the Supreme Court’s 1985 decision in Atascadero State Hosp. v. Scanlon, which read “a State will be deemed to have waived its immunity only where stated by the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction.” The 10th Circuit in Elwell did not find that to be the case in OADA.

“A state has to enact legislation basically repudiating the protections of the 11th Amendment, opening itself to lawsuits,” Olsen says. “Oklahoma’s adoption of its own state discrimination law was not sufficiently clear to be a repudiation of 11th [Amendment] immunity protections on this subject matter.”

Potter Anderson Corroon Partner Wendy Voss says Elwell “points to the necessity to be familiar with your state laws and whether the state has waived immunity for any state claim that could be made.”

This doesn’t mean that all public employers are immune from employment discrimination claims, however. “Cities and municipalities do not necessarily have the same immunity,” Voss adds. “If you are counsel to a city or municipality, you really need to understand the distinctions and which category you fall into.”

Private Implications

Olsen says the 10th Circuit’s decision in Elwell could extend beyond public employers to have implications in the private sector. The court’s reasoning emphasizes that all three titles of the ADA serve completely separate purposes, and that a claim that could be brought under one title likely would not work under another. “Each title does important and independent work—work that would be diminished, duplicated, even rendered superfluous were we to read Title II as covering employment discrimination,” the court wrote.

Olsen says the same reasoning could be applied to bringing employment discrimination claims under Title III—the public accommodation provision, which states that public accommodation businesses such as hotels and restaurants must make their services available to the disabled either by removing barriers to the services or by providing them through alternative means. The input/output argument that the 10th Circuit applied in Elwell suggests that Title III applies only to the outputs of a public accommodation business—the services it provides to customers—and that employment claims would be relegated to Title I, Olsen says.

“Two-thirds of the decision is written in such a way that it could be cut and pasted for a combination Title I and Title III case,” Olsen says. “It’s just that the reasoning is identical.”

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