On Wednesday, February 21, 2001, the United States Supreme Court held, in “University of Alabama Board of Trustees vs. Garrett,” that state employees cannot sue their states for monetary damages in federal court under the Americans With Disabilities Act (ADA). By eliminating the threat of a monetary damages suit, the Court has removed an important incentive for the states to examine and remedy existing policies and practices. Although the ruling prohibits monetary damages, state employees retain the right to sue for “injunctive or prospective relief.” That is, they can ask the federal government to force the State to cease existing discriminatory practices or to change existing policies.
For several months, lawyers and advocates representing persons with disabilities have waited for the Supreme Court’s decision. The Supreme Court had signaled in many ways its philosophy of “States Rights,” or returning power of government to the states. The most recent decision involving civil rights and state employment was a case where a state employee in Florida sued the state for age discrimination. The Supreme Court held that states were immune from suit by state employees under the Age Discrimination in Employment Act because of the immunity protection granted states under the Eleventh Amendment to the Constitution.
The Original Cases
The Supreme Court’s “Garrett” ruling combined two claims of disability discrimination by state employees. Patricia Garrett was a nurse at the University of Alabama-Birmingham University Hospital. After she was diagnosed with breast cancer in 1994, Garrett contended that her supervisor made negative comments about her disability, and repeatedly threatened to transfer her from her position as director of nursing at the hospital’s Women’s Services/Neonatology unit. Although Garrett could perform the essential functions of her job, she was demoted shortly after returning from sick leave.
Milton Ash, who has diabetes and several respiratory impairments, including chronic asthma, worked in a confined area and also drove vehicles for the Alabama Department of Youth Services (ADYS). Because of his asthma, he repeatedly asked ADYS to enforce its existing non-smoking policy, and to repair vehicles which leaked carbon monoxide. Ash also asked to be transferred to another shift to accommodate a newly diagnosed condition ? sleep apnea.
Both Garrett and Ash brought suit against the State under the employment provisions, or Title I, of the ADA. The state brought a motion for summary judgment, which means that Alabama believed that, on its face, the suit was not viable and should be dismissed. They argued that states were immune from suit by state employees under the ADA because of the Eleventh Amendment. The state district court agreed with them and dismissed the case. The Eleventh Circuit Court of Appeals disagreed and reversed.
The Supreme Court analyzed this case the same way as it has analyzed previous decisions involving suits by employees against a state. They asked two basic questions. First, did Congress intend to, in essence, waive immunity by the states to suit under the Eleventh Amendment? Clearly, in this case, Congress had that intention. The ADA includes language at 42 U.S.C., Section 12202, which states:
“A state shall not be immune under the eleventh amendment to the constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this Act.”
No “Widespread Discrimination”
The second basic question asked by the Court was, did Congress have the authority to waive state immunity under the Eleventh Amendment in order to uphold the provision of equal protections or due process under the Fourteenth Amendment of the Constitution? Here, the Court said that Congress had exceeded its authority because it had not proved that this waiver of immunity was necessary to adequately protect the equal rights of individuals with disabilities. The Court discounted the Congressional findings and record which led to the passage of the ADA, arguing that the record did not show extensive discrimination against persons with disabilities by states. The Court said that in order to uphold an “equal protection” argument, persons with disabilities would have had to prove that states had perpetrated the kind of blanket discrimination that was shown to exist against people of color, leading to the passage of the Voters Rights Act of 1965. Justice Breyer in his dissent attached an appendix of all the reported discrimination by states against employees or applicants for employment which had been included in the Congressional Findings regarding the passage of the ADA. The Court said that even some 300 documented incidents did not prove widespread discrimination.
The most disturbing part of this decision was a throw-away sentence stating at least the opinion of the author of the majority opinion, Justice Rehnquist. Such statements are generally called “dicta.” They do not reflect on the main issues under consideration in the case, but give some preview of what some Justices are thinking about a particular issue. In this case, Justice Rehnquist stated that asking a state employer to hire a disabled person instead of an equally qualified nondisabled person, when it might cost more to hire the disabled person and provide reasonable accommodation, might be beyond what can be required of state employers. The four Justices who dissented do not accept that argument, and even some of the Justices who concurred with the opinion declined to accept that particular philosophy. But this is a signal that we will face this issue in future cases.
The Garrett decision dealt only with state employment because only states have this immunity from suit provided to them by the Eleventh Amendment of the United States Constitution. This holding does not endanger the rights of persons with disabilities who have employment discrimination claims against private employers, or employees with claims against cities and counties. This holding also leaves individuals with disabilities free to sue in state court under the Minnesota Human Rights Act and to file charges with the Minnesota Department of Human Rights. Individuals may also file charges with EEOC for investigation. If probable cause is found, individuals with disabilities, as stated above, will probably only be able to recover injunctive relief or prospective relief. The Garrett decision does not affect the ability of persons with disabilities to sue cities and counties who fail to provide access to their services and programs, nor the ability to sue private businesses which do not make themselves accessible.
Future Decisions By The Supreme Court
This Supreme Court term, we will get the results of at least one other case which has been argued before the Supreme Court regarding the public accommodations provisions of the ADA. This is the Casey Martin case, which poses the issue, can the Professional Golf Association deny Mr. Martin the use of a golf cart because it “alters” in some way, the playing of the game of golf? We will hope that the answer to that question is either a resounding no, or that at worst the decision is very narrow in its interpretation if the answer is yes. It seems likely that the Supreme Court will not totally dismantle protection for persons with disabilities regarding access to services and programs considered public services under the ADA, even when such services and programs are provided by states, although we will have to await the Supreme Court’s further guidance on this matter.
In Minnesota we also are bound by the decisions of the federal Eighth Circuit Court of Appeals, which seem to indicate that states may generally be immune from suit under the ADA because of this Eleventh Amendment immunity. This would mean that people with disabilities may not sue states for lack of access to public services and programs. The Supreme Court just last month refused to review a case involving whether or not states are immune from suit by individuals with disabilities seeking just such access to services and programs. However, there will certainly be cases in the future which will challenge the rights of persons with disabilities under the ADA.
What can state employees gain by filing a complaint under the state Human Rights Act? The Minnesota Human Rights Act contains much of the same language as the ADA. An additional advantage with state claims is that a plaintiff has a choice whether to file with the Department of Human Rights or to go directly to court and file a private lawsuit. Under the employment provisions of the ADA, a plaintiff must file with EEOC first and either wait for their decision or a letter from EEOC dismissing the case and giving permission to file a private lawsuit in Federal Court. There are some differences in damages which can be awarded in state court. The major disadvantage of a state claim under the Human Rights Act is that plaintiffs do not have access to a jury trial. In a few instances, the EEOC has found juries to be quite helpful in awarding damages where employers either acted particularly egregiously, or where reasonable accommodation was not considered and could have easily been provided. Perhaps at some point we will need to try to amend the Minnesota Human Rights Act to incorporate other features of the ADA, particularly trial by jury.
ADA Retains Support of Public
We must admit that this decision, while it is no surprise, is a blow to the disability community. The decision limiting federal authority is particularly ironic in view of the Supreme Court’s decision to interfere in the voting procedures of Florida, reverse the state’s decision, and in essence decide the presidential election. However, we must not lose sight of the gains we have made in the past decade because of the passage of the ADA. Small businesses and entertainment facilities are more likely to be physically accessible to persons in wheelchairs than they were in 1990. Employers have found that hiring persons with disabilities was not costly most of the time even when accommodations must be provided. People who are deaf are more routinely provided with interpreter services when they try to access services and programs of states, counties and cities than they were ten years ago. This decision teaches the lesson that we cannot let up on our efforts to educate the public and monitor cases and legislation to protect the rights we have gained through the ADA.
We can be proud in Minnesota that our own Attorney General, Mike Hatch, led the way in submitting an amicus brief to the Supreme Court asserting that states were not immune from suit under the ADA. Thirteen other states signed on to his brief. Hawaii led the pack for states supporting Alabama’s position, and only seven states signed that brief. Former President Bush and Former Senator Bob Dole both submitted briefs on behalf of individuals with disabilities retaining the protections set forth under the ADA, including the ability to sue states. Our current President, George W. Bush, recently held a press conference in which he talked about the need to continue to push for access for individuals with disabilities. Therefore, despite this disappointing decision, we need to remember that we had lots of support from the public to pass the ADA, and we still retain that support. Surely, that means that the progress we have made since the passage of the ADA will not be totally lost.
Kathleen R. Hagen is an attorney at Mid-Minnesota Legal Assistance in Minneapolis
[Editor’s note: As this edition of Access Press goes to the printer, legislation has already been introduced in California whereby that state would ?consent to be sued in state or federal court by any person seeking to enforce rights or obtain remedies afforded by the following federal laws and their implementing regulations…” The listed laws include the ADA, despite the claim to states’ immunity granted by the Supreme Court in the Garrett decision. Other states are considering similar legislation, and Access Press will report news in this area as it becomes available.]