[author: Ted Olsen]

The Tenth Circuit Court of Appeals, which includes Colorado, recently ruled on an issue that appears destined to be decided by the U.S. Supreme Court - whether an employee of a state or local governmental unit can pursue employment discrimination claims under Title II of the Americans with Disabilities Act.[1]  This is not only a significant ruling for public employers, but also for private sector employers, as the decision at least implies that employment discrimination claims may only be brought under Title I, but not under Title III of the ADA, which applies to "public accommodation" discrimination.

The ADA is broken down into three subchapters - Title I (entitled "Employment"), Title II (entitled "Public Services"), and Title III (entitled "Public Accommodations").  Employers are very familiar with Title I claims, which are pursued before the Equal Employment Opportunity Commission and state agencies, before they result in court litigation.  But, in Elwell v. State of Oklahoma,[2] a former State employee pursued her discrimination claim under Title II.

The key statutory language in Title II is at 42 U.S.C. § 12132, which 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.

The Tenth Circuit ruled that this language does not address employment discrimination against a state employee.  The phrase "services, programs, or activities of a public entity" was found not applicable to public employment - the phrase was read as a public entity's "output," while an employee's work for a public was deemed more akin to "input" for the entity. 

The Court reasoned that - if Title II's statutory language were read as reaching employment discrimination - it would lead to absurd results.  For example, Title II's prohibitions apply only to "qualified individuals,"[3] defined as those with a disability who "meet[] the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity."[4]  (Emphasis added.)  If Title II applied to employment discrimination, the only public employees who would be protected would be those who would be eligible for their employers' services or programs.  "If the defendant public entity is a soup kitchen providing meals to the indigent, only disabled employees who are themselves indigent could bring a discrimination claim; other disabled and discrimination against employees would be left without recourse."

[2] Elwell v. State of Oklahoma, Case No. 11-6061 (10^th Cir. Sept. 11, 2012).

[3] 29 U.S.C. § 12132.

[4] 29 U.S.C. § 12131(2).