Under Title II of the Americans with Disabilities Act (ADA), “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.” 42 U.S.C. § 12132. In a recent decision out of Hawaii, a federal judge called attention to a circuit split over whether Title II of the ADA provides a cause of action for disabled Americans in the employment context. See Motoyama v. Hawaii, Civ. No. 10-00464 ACK-RLP (Dist. Haw. Mar. 29, 2012).
The split occurred back in 1999 when the Ninth Circuit held that Title II did not provide a cause of action for disability discrimination in the employment context. Zimmerman v. Oregon DOJ, 170 F.3d 1169, 1182–84 (9th Cir. Or. 1999). In doing so, the court acknowledged that its “decision creates an inter-circuit split of authority,” adding, “[a]lthough we are hesitant to create such a split, and we do so only after the most painstaking inquiry, we must follow the unambiguously expressed intent of Congress.” Id. at 1183–84.
The Ninth Circuit’s “painstaking inquiry” consisted of looking to the plain meaning of the statutory text found in Title II, “including the definition of ‘qualified individual with a disability’ from that Title and the surrounding words in 42 U.S.C. § 12132.” Id. at 1183. With the exception of the Eleventh Circuit, the panel pointed out, the other circuits that had addressed the issue “ignored the wording of Title II altogether.” Id.
To justify its position as the lone dissenter, the Ninth Circuit in Zimmerman attacked the positions taken by its sister circuits as follows:
they have: (1) assumed without analysis that Title II applies to employment,12 (2) relied only on the Attorney General's regulation and the legislative history of the ADA, without discussion of the statutory text and context,13 (3) relied on the Rehabilitation Act without analyzing whether Congress intended to incorporate its prohibition against employment discrimination into Title II,14 or (4) relied solely on the foregoing precedent without independent consideration of the problem.15 Because of the limited analysis performed in those cases - in particular, their failure to consider the statutory text and context carefully - we simply do not find them persuasive.
12. See, e.g., Holmes v. Texas A & M Univ., 145 F.3d 681, 683-84 (5th Cir. 1998); Doe v. University of Maryland Med. Sys., 50 F.3d 1261, 1264-65 & n.9 (4th Cir. 1995); Motto v. City of Union City, 1997 U.S. Dist. LEXIS 23401, No. 95-5678, 1997 WL 816509, at *8 (D.N.J. Aug, 27, 1997); Davoll v. Webb, 943 F. Supp. 1289, 1297 (D. Colo. 1996); Dertz v. City of Chicago, 912 F. Supp. 319, 323-25 (N.D. Ill. 1995), reconsidered in part on other grounds, 1997 WL 85169 (Feb. 24, 1997); Doe v. County of Milwaukee, 871 F. Supp. 1072, 1074 (E.D. Wis. 1993); Eisfelder v. Michigan Dept. of Natural Resources, 847 F. Supp. 78, 83-84 (W.D. Mich. 1993); Finley v. Giacobbe, 827 F. Supp. 215, 219 n.3 (S.D.N.Y. 1993).
13. See, e.g., Hernandez v. City of Hartford, 959 F. Supp. 125, 133 (D. Conn. 1997) ("On its face, Title II prohibits discrimination in 'public services'. A plain reading of the section does not reveal whether Title II covers employment discrimination addressed more specifically in Title I. The regulations under and the legislative history of ADA Title II make it clear, however, that § 12132 prohibits employment discrimination by public entities on the basis of disability.") (footnote and citation omitted); Wagner v. Texas A & M Univ., 939 F. Supp. 1297, 1309 (S.D. Tex. 1996) ("Although it is not apparent from the plain language of § 12132, the regulations issued by the Department of Justice make it clear that the prohibition against discrimination by public entities includes employment discrimination."). See also Winfrey v. City of Chicago, 957 F. Supp. 1014, 1023 n.7 (N.D. Ill. 1997) (similar); Silk v. City of Chicago, 1996 U.S. Dist. LEXIS 8334, No. 95 C 0143, 1996 WL 312074, *10 (N.D. Ill. June 7, 1996) (similar); Benedum v. Franklin Township Recycling Center, 1996 U.S. Dist. LEXIS 21929, No. 95-1343, 1996 WL 679402, at *5 (W.D. Pa. Sept 12, 1996) (similar); Petersen v. Univ. of Wisconsin Bd. of Regents, 818 F. Supp. 1276, 1278 (W.D. Wis. 1993) (similar).
15. See, e.g., Saylor v. Ridge, 989 F. Supp. 680, 688 (E.D. Pa. 1998) ("We are inclined to follow the reasoning and holdings of our brethren which also appears to be the view followed by the majority of courts nationwide which have confronted this issue."). See also Magee v. Nassau County Medical Center, 27 F. Supp. 2d 154, 159 (E.D.N.Y. 1998) (similar); Fobar v. City of Dearborn Heights, 994 F. Supp. 878, 885 n.3 (E.D. Mich. 1998) (similar); Bruton v. Southeastern Penn. Transp. Auth., 1994 U.S. Dist. LEXIS 12087, No. 94- CV-3111, 1994 WL 470277, at *2 (E.D. Pa. Aug. 19, 1994) (similar).
Id. at 1183 & n.13–15.