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ADA Employment Discrimination: You Can't Sue Under Title II

By Robyn Hagan Cain | Last updated on

If you are filing an American with Disabilities Act (ADA) employment discrimination claim on a client's behalf, sue under Title I. Title I authorizes the disabled to bring employment discrimination claims.

Title II offers no recourse for employees, according to the Tenth Circuit Court of Appeals.

Of course, some employee had to learn that lesson the hard way so everyone else could learn it the easy way.

Judy Elwell had an office job at the University of Oklahoma. Elwell began to suffer from a degenerative spinal disc condition. While her condition didn't prevent her from performing the essential functions of her job, she sought certain accommodations, which the University refused to provide.

She claims she was ultimately fired due to her disability.

Elwell sued the University under both Title II of the ADA, and the Oklahoma Anti-Discrimination Act (OADA). The district court dismissed her lawsuit, holding that Title II does not provide a cause of action for employment discrimination and that Oklahoma had not waived its immunity from suit under the OADA. The Tenth Circuit Court of Appeals agreed.

Title II doesn't mention employment. Its express purpose is to root out discrimination against the disabled in the provision of public services. It states: 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.

While the University clearly qualifies as a public entity, the Tenth Circuit concluded (in a matter of first impression) that employment is not fairly described as a "service, program, or activity of a public entity."

The appellate court explained the distinction as the difference between input and output. The employees needed to make the University's services possible are inputs, while the "services, programs, and activities" are the outputs.

Writing for the court, Judge Neil Gorsuch noted:

A university's services, programs, and activities might include courses in Bach, biophysics, or basket weaving -- outputs provided to its students -- but not the professors, piano tuners, or other people needed to make those offerings possible. Employing people isn't a service, program, or activity the university provides: it is a means or method the university uses to provide its services, programs, and activities.

If you want to bring an ADA employment discrimination suit, just remember: Title I or your claim is done.

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