Harmonizing State and Federal Anti-Discrimination Law: The Problem of the ADAAA

Abstract

In 1992, the Kentucky General Assembly amended the Kentucky Civil Rights Act to prohibit disability discrimination in employment, housing, and public accommodations. Originally passed in 1966, the KCRA had been regularly updated to mimic—in many places, word-for-word—its federal anti-discriminatory counterparts such as the Civil Rights Act of 1964 and the Age Discrimination in Employment Act. The 1992 amendments were no different. They incorporated into the KCRA the Americans With Disabilities Act’s definitions and complimentary provisions. And Kentucky was not alone—states all over the country passed their own analogous anti-discrimination laws modeled after the ADA.

Many of the ADA’s provisions, unfortunately, were vague. Over the course of near-ly two decades, the federal courts, including the U.S. Supreme Court, interpreted the ADA’s vague terms so narrowly as to make successful litigation under it nearly impossible. Kentucky courts, following their lead, interpreted the KCRA’s nearly identical terms just as narrowly, to the same anti-plaintiff effect. In 2008, Congress had seen enough, and passed the Americans With Disabilities Act Amendments Act to add clarifying provisions to the ADA’s original vague terms. In its statement of purpose, the ADAAA explicitly denounced the Supreme Court’s narrow interpretations and superseded its worst opinions.

State legislatures in Kentucky and elsewhere, however, did not pass their own versions of the ADAAA, leaving unchanged their state laws modeled after the original ADA. Since then, many state and federal courts, especially in Kentucky, have seized upon this legislative inaction to maintain the pre-ADAAA status quo of harsh dismissals for state claims. Not all courts, though—there is now a confusing patchwork of contradictory rulings that leave plaintiffs and defendants wondering as to what law actually applies in Kentucky and else-where.

This article follows the history of the ADA and its amendments, explains the development of analogous state law (focusing on Kentucky), describes the resulting judicial chaos since the ADAAA’s passage, and offers many reasons why courts should harmonize analogous state laws with the ADA that exists today.

Keywords: Anti-discrimination, Americans With Disabilities Act, Disability Law, Federalism, Statutory Interpretation, Kentucky Law, Federal Courts, State Courts

JEL Classification: K23, K31