Title II of the Americans with Disabilities Act of 1990 and its Prohibition of Employment Discrimination

32 Pages Posted: 14 Sep 2007 Last revised: 25 May 2009

See all articles by Jamie Ireland

Jamie Ireland

Northern Kentucky University - Salmon P. Chase College of Law

Richard A. Bales

Ohio Northern University - Pettit College of Law

Abstract

Title I of the Americans with Disabilities Act (ADA) prohibits employment discrimination. Title II of the ADA prohibits discrimination in the provision of programs, services, or activities by federal, state, and local government entities. Title I, however, contains significant coverage gaps: federal employees, and employees of employers with less than fifteen employees, are not covered. When these employees are discriminated against on the basis of disability, they often sue under Title II, which does not contain the Title I exclusions.

The federal circuit courts are split on the issue of whether the ADA Title II applies to employment discrimination claims. The Ninth Circuit has held that it does not, reasoning that the exclusions in Title I would be meaningless if litigants could back-door their claims via Title II. The Second, Fourth, Fifth, and Eleventh Circuits, however, relying on the plain language of the statute and on Department of Justice regulations, have held that Title II does apply to employment discrimination claims. This article agrees with the latter set of circuits, arguing that such an interpretation is consistent with the statute's plain language, legislative history, legislative intent, and administrative regulations.

Keywords: disability, disabilities, ADA, title II, coverage gap

Suggested Citation

Ireland, Jamie and Bales, Richard A., Title II of the Americans with Disabilities Act of 1990 and its Prohibition of Employment Discrimination. North Illinois University Law Review, Vol. 28, No. 2, 2008. Available at SSRN: https://ssrn.com/abstract=1014092

Jamie Ireland

Northern Kentucky University - Salmon P. Chase College of Law ( email )

Nunn Hall
Highland Heights, KY 41099
United States

Richard A. Bales (Contact Author)

Ohio Northern University - Pettit College of Law ( email )

525 South Main Street
Ada, OH 45810
United States
419-772-2205 (Phone)

HOME PAGE: http://law.onu.edu/node/3073

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