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Title II of the ADA and Public Entities

Congress passed the Americans with Disabilities Act (ADA) back in 1990.  The ADA prohibits discrimination against individuals with disabilities and is aimed at ensuring their integration into American life. 
The ADA is divided into five parts, called “titles.”  Title I, in many ways the best known portion, deals with discrimination in employment.  Title II deals with discrimination by “public entities” in public programs, services, and activities, and in public transportation.
Public Entities
Title II applies only to public, and not private, entities.  “Public entity” is defined to include:
  • Any state or local government
  • Any department, agency, special purpose district, or other “instrumentality” of a state or local government, i.e., fire or police, courts, state legislatures, etc.
  • Certain commuter authorities, including AMTRAK
Prohibited Discrimination
Title II forbids public entities from excluding “qualified disabled individuals” from the benefits of, or participation in, services, programs, or activities offered by the public entity simply because of the disability.  “Disability” includes: having; having a record of; or even being regarded as having a physical or mental impairment that substantially limits a “major life activity,” such as walking, seeing, hearing, learning, etc.
A disabled individual who is “qualified” must be allowed to participate, even if that means making “reasonable modifications,” provided the modifications do not cause “undue hardship” to the public entity.  A “qualified” individual is one who meets the essential eligibility requirements for the program or activity offered.
Reasonable Modifications
Public entities are not required to take any action that would result in a fundamental alteration of the nature of the program or service, nor need they take measures that would cause undue financial and administrative burdens.  They may, however, be obligated to:
  • Relocate a service or program to a different building or floor of the same building to ensure access for the disabled
  • Provide a special aide or assistant to assist disabled persons
  • Provide benefits or services at the homes of the disabled
  • Make reasonable modifications to policies, practices and procedures to accommodate the disabled
  • Although new construction or building alterations are not usually required, if undertaken, they must comply with federal standards accommodating the disabled
Public Transportation
Title II also forbids public transportation authorities from discriminating against the disabled in providing service.  Newly-purchased vehicles must comply with requirements for accessibility, and there must be a good faith effort to acquire or lease used vehicles that have such access equipment.  Public entities that provide transportation should also provide “paratransit” service, i.e., pick-up and drop-off service for disabled persons unable to use the regular system, provided this would not result in an undue burden to the public entity.
Disabled individuals who believe they are victims of discrimination under Title II may file a complaint with specified government agencies, including the Department of Justice.  With respect to public transportation, complaints should be addressed to the Department of Transportation, while questions and general complaints should be directed to the Federal Transit Administration.
Such complaints must generally be filed within 180 days of the alleged discriminatory act.  A complaint may be referred to mediation and/or the Department of Justice may file a lawsuit, usually after investigation and informal resolution efforts have failed.
Wronged individuals may also personally file a lawsuit against the public entity, without filing a complaint with a federal agency.  If successful, the court may grant: injunctive relief; compensatory damages; and recovery of attorneys' fees and costs. 
State Government Immunity
Despite the immunity typically granted to states under the Eleventh Amendment of the U.S. Constitution, the ADA states that individuals may bring lawsuits against state government entities.  However, in 2001, the U.S. Supreme Court held that an individual may not sue a state government employer for money damages under Title I of the ADA.  The Court based its holding on the constitutional immunity of states from suits. 
Following the 2001 decision, a number of federal Circuit Courts of Appeal held that a suit by an individual against a state government or one of its “instrumentalities” under Title II is also unconstitutional.  In May 2004, however, the Supreme Court held that state governments are not immune from Title II lawsuits “in classes of cases implicating the fundamental right of access to courts.”  As a consequence, whether an individual can bring such a lawsuit may depend on where he or she is located and the nature of the claim.

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