By Ted Olsen
The Tenth Circuit Court of Appeals, which decides cases in Colorado and surrounding states, recently ruled that a state or local government employee cannot pursue an employment discrimination claim under the subchapter of the ADA relating to “Public Services,” Title II of the Americans with Disabilities Act, 29 U.S.C. § 12131 et seq. Elwell v. State of Oklahoma, Case No. 11-6061 (10th Cir. Sept. 11, 2012). “Title I, not Title II, is the proper tool for pursuing employment discrimination claims.”
Part of the Court’s reasoning was that Congress’s division of the ADA into three subchapters – Title I relating to “Employment,” Title II relating to “Public Services,” and Title III relating to “Public Accommodations” – was intentional. The three parts of the law deal with three different types of discrimination, the Court reasoned, and each one “does important and independent work – work that would be diminished, duplicated, even rendered superfluous were we to read Title II as covering employment discrimination.” Therefore, public employees may not pursue employment discrimination claims under both Titles I and II.
This is not only a significant ruling for public employers, but for the “public accommodations” covered by Title III, such as hotels, restaurants, bars, retail stores, arenas, schools, athletic clubs, and office buildings. That is because Elwell indicates that employment discrimination claims may only be brought under Title I, to the exclusion of the rest of the ADA. While an arthritic bartender, for example, may still have a disability discrimination claim under Title I, he does not have an additional claim under Title III, even though his employer is a “public accommodation.”
Three other federal courts of appeals agree with this ruling. Because another court of appeals has taken the opposite position, the matter may go to the Supreme Court.