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Employment Discrimination Under Title II of the Americans with Disabilities Act

Administrative & Regulatory Law News, Vol. 33, No. 4, Summer 2008

7 Pages Posted: 21 May 2008  

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 prohibits employment discrimination on the basis of discrimination. Title II prohibits discrimination by providers of public services. Title I contains several exclusions (federal employees, employees of small state agencies) and procedural requirements (filing a charge of discrimination before filing suit) that are not in Title II. If an employer is covered by Title II but not by Title I, may that employer be sued for disability discrimination in employment?

The circuits are split on the issue. The Ninth Circuit has held that because Title I explicitly covers employment, and because Title II covers public services but does not specifically mention employment, Congress must have intended for Title II not to cover employment. This article, however, agrees with the circuits that have held that Title II covers employment discrimination claims, for three reasons. First, the plain textual language of Title II broadly prohibits all discrimination by public entities. Second, the ADA's legislative history indicates that Congress intended Title II to apply to employment discrimination. Third, the Department of Justice's regulations interpreting Title II are on point and entitled to deference.

This is an updated and significantly condensed version of an article that will be published imminently at 28 N. Ill. U. L. Rev. (2008).

Keywords: disability, discrimination, title I, title II

Suggested Citation

Ireland, Jamie and Bales, Richard A., Employment Discrimination Under Title II of the Americans with Disabilities Act. Administrative & Regulatory Law News, Vol. 33, No. 4, Summer 2008. Available at SSRN: https://ssrn.com/abstract=1135645

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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