Impacts of the Americans with Disabilities Act on Transit Agency Liability (2018)

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60 rights statute.”902 One reason is that, in contrast to the Civil Rights Act, as amended, individuals with disabilities “have not suffered … broad, systemic, and legally enforced exclusion from social, political, and economic participation.”903 Arguably, “disparate impact is a form of affirmative action and not simply an antidiscrimination device.”904 Congress borrowed the definition of disability for the ADA from Section 504 of the Rehabilitation Act, as well as “some of the substantive provisions and defenses developed under that section,”905 and adopted the remedies in Title VII of the Civil Rights Act in Title I of the ADA.906 Title VI of the Civil Rights Act prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance.907 Title II of the ADA requires equal access to most public transportation for persons with disabilities.908 Both Title II of the Civil Rights Act909 and Title III of the ADA prohibit discrimination by public accommodations.910 One basis for assessing whether the ADA is a civil rights statute is whether the disparate impact the- ory of discrimination applies to the ADA as it does to the enforcement of the Civil Rights Laws. One source argues that, because “some people with dis- abilities need more than the ADA’s protections against discrimination,” there is a role for disparate impact theory in enforcing the ADA.911 Since 1971, the courts have interpreted Title VI of the Civil Rights Act as prohibiting disparate treatment (i.e., intentional discrimination), as well as disparate impact discrimination.912 In 1991, the Civil Rights Restoration Act codified the proscription against 902 Id. at 867 and James Leonard, The Equality Trap: How Reliance on Traditional Civil Rights Concepts Has Rendered Title I of the ADA Ineffective, 56 case w. Res. *28 (2005) [hereinafter Leonard]. 903 Crossley, supra note 896, at 868. 904 Leonard, supra note 902, at *27 (footnote omitted). 905 Bonnie Poitras Tucker, Symposium: Facing the Challenges of the ADA: The First Ten Years and Beyond: The ADA’s Revolving Door: Inherent Flaws in the Civil Rights Paradigm, 62 oHio st. L. J. 335, 341 (2001) (refer- encing 42 U.S.C. § 2000d (1994) [hereinafter Tucker]. 906 Id. 907 42 U.S.C § 2000d (2018). 908 See, e.g., McGowan, supra note 899 at 39. 909 Title II of the Civil Rights Act of 1964 prohibits dis- crimination because of race, color, religion, or national ori- gin in certain places of public accommodation, such as hotels, restaurants, and places of entertainment. See https://www.justice.gov/crt-22. 910 Tucker, supra note 905, at 341-42. 911 Crossley, supra note 896, at 955. 912 Tucker, supra note 905, at 364-65. allow the prevailing party, other than the United States, a reasonable attorney’s fee, including litigation expenses, and costs, and the United States shall be liable for the foregoing the same as a private individual.895 XII. RELATIONSHIP BETWEEN THE ADA AND THE CIVIL RIGHTS LAWS A. Claims Against Transit Agencies for Disparate Impact and Disparate Treatment This part of the digest discusses disparate impact and disparate treatment. Disparate impact occurs when an action or policy that is neutral on its face results in discriminatory effects on or consequences for individuals, whereas disparate treatment is the intentional, non-neutral discriminatory treatment of individuals.896 Only one transit agency responding to the survey reported that it had any Title I, II, or III ADA claims in the past five years that alleged dispa- rate impact discrimination by the agency.897 Four agencies stated that their agency had Title I, II, or III ADA claims in the past five years alleging disparate treatment discrimination by their agency.898 B. The ADA as a Civil Rights Statute One scholar has written that the ADA “guaran- tees the civil rights of individuals with disabilities.”899 The FTA Circular describes the ADA as a “civil rights law” and as a “civil rights statute.”900 Although there are “conceptual similarities” between the ADA’s reasonable accommodation requirement and disparate impact,901 some commentators disagree with “the characterization of the ADA as a civil 895 See also id. § 36.505 (stating that “[i]n any action or administrative proceeding commenced pursuant to the Act or this part, the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee, including litigation expenses, and costs, and the United States shall be liable for the foregoing the same as a private individual”). 896 Mary Crossley, Reasonable Accommodations as Part and Parcel of the Antidiscrimination Project, 35 RutgeRs L. J. 861, 902 (2004) [hereinafter Crossley]. 897 See Appendix C, Transit Agencies’ Responses to Question 24. The Detroit Department of Transportation reported that the case was still pending at the time of the survey. 898 See id., Transit Agencies’ Responses to Question 25. The agencies’ responses did not distinguish clearly between claims or cases against their agency for disparate impact or disparate treatment from other claims or cases alleging violations of the ADA. 899 Miranda Oshige McGowan, Reconsidering the Americans with Disabilities Act, 35 ga. L. Rev. 27, 44 (2000) [hereinafter McGowan]. 900 FTA Circular, Ch. 2.2, p. 2.1 and Ch. 9.2, p. 9.1. 901 Crossley, supra note 896, at 793.

61 Thus, Title I “fit[s] comfortably within the estab- lished Title VII framework for disparate impact claims.”919 It appears, however, that when one com- pares the use of disparate impact theory and class actions that “flourished” after the enactment of Title VII of the Civil Rights Act with Title I of the ADA,920 the ADA’s requirement of accommodations for employees with disabilities has “eclipsed” the need for separate or distinct disability claims based on disparate impact.921 In contrast to “the disparate impact model [that] views equality as a matter of removing innocent structural barriers to group par- ticipation in the workplace,”922 Title I of the ADA focuses almost exclusively “on an individual plain- tiff ’s particular circumstances and the specific accommodation that was requested.”923 As one com- mentator argues, Title I of the ADA and Title VII of the Civil Rights Act are different. The reasons are that the ADA’s “reasonable accommodation rules impose affirmative obligations on employers to act rather than to refrain from discriminatory actions. The concept of accommodation [in the ADA] is, in fact, radically different from the concepts of the dis- parate treatment and disparate impact models.”924 Furthermore, “[t]he individualized nature of dis- abilities … often strains the resemblance between Title I and Title VII disparate impact claims.”925 Because [a]n individuated Title I disparate impact claim … is diffi- cult to distinguish from a reasonable accommodation claim …, most plaintiffs will find it impractical to identify a suffi- ciently large enough group of legally disabled persons who share her particular impairment and manifestations to meet the comparative requirements of a traditional dispa- rate impact claim.926 In sum, although the principle of the prohibition of disparate impact appears in Title I of the ADA, for the reasons discussed, scholars suggest that there may not be a significant likelihood of many dispa- rate impact claims in Title I cases. 919 Leonard, supra note 902, at *28 (footnotes omitted). 920 Michael Ashley Stein and Michael E. Waterstone, Disability, Disparate Impact, and Class Actions, 56 DuKe L. J. 861 (2006) [hereinafter Stein and Waterstone]. 921 Id. at 864. The authors argue that there is still a role for disparate impact theory and class actions to rem- edy “harder-to-reach embedded norms that require job and policy modifications.” Id. 922 Leonard, supra note 902, at *11. 923 Stein and Waterstone, supra note 920, at 879. As of the time of the article, there were no published federal decisions that had “specifically determined a single failure to accommodate [an] employment claim under disparate impact analysis.” Id. at 882. 924 Leonard, supra note 902, at *31. 925 Id. at *28. 926 Id. at *29. disparate impact discrimination in the Civil Rights Act.913 Title VII, besides prohibiting disparate treat- ment, also bars disparate impact discrimination.914 C. Relationship of Title I of the ADA and the Civil Rights Act Congress intended to incorporate disparate impact theory in Title I of the ADA. A conference committee on the Civil Rights Act of 1990 stated that the disparate impact provisions of the ADA were to be interpreted consistently with Title VII of the Civil Rights Act.915 Several provisions of Title I of the ADA, in effect, prohibit disparate impact. Section 12112(a) states the general rule that “[n]o covered entity shall dis- criminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” Section 12112(b)(3) prohibits discrimination against a qualified individual on the basis of disability including the use of “standards, criteria, or methods of administration … that have the effect of discrimi- nation on the basis of disability … or … that per- petuate the discrimination of others who are subject to common administrative control….”916 Section 12112(b)(6) prohibits the use of qualification standards, employment tests or other selec- tion criteria that screen out or tend to screen out an indi- vidual with a disability or a class of individuals with disabilities unless the standard, test or other selection cri- teria, as used by the covered entity, is shown to be job- related for the position in question and is consistent with business necessity….917 Section 12112(b)(7) forbids the failure to select or administer tests that accurately measure the tested skill rather than a sensory or other impairment.918 913 Id. at 365. 914 United States v. Brennan, 650 F.3d 65, 90 (2d Cir. 2011). 915 Ann Hubbard, Understanding and Implementing the ADA’s Direct Threat Defense, 95 nw. u. L. Rev. 1279, 1342 (2001) (quoting H.R. ReP. no. 101-755, at 15 (1990 Conf. Rep.)). 916 42 U.S.C. § 12112(b)(3)(A) and (B) (emphasis sup- plied). See Leonard, supra note 902, at *28 (footnote omit- ted). 917 42 U.S.C. § 12112(b)(6) (2018) (emphasis supplied). See Leonard, supra note 902, at *28 (footnote omitted). 918 42 U.S.C. § 12112(b)(7) (2018). See Leonard, supra note 902, at *28 (footnote omitted). See also McGowan, supra note 899, at 150 (stating that in the field of employ- ment “[t]he prohibitions against tests and requirements with disparate impact on the basis of disability appear in Section 12112(b) of the ADA”).

62 barriers, overprotective rules and policies, [and] failure to make modifications to existing facilities and practices.’”935 Therefore, “Congress intended the ADA to cover at least some so-called disparate impact cases of discrimination, for the barriers to full participation listed above are almost all facially neutral but may work to effectuate discrimination”936 against individuals with disabilities. The appellate court relied on the U.S. Supreme Court’s analysis in Alexander v. Choate,937 in which the Supreme Court held, in a case arising under the Rehabilitation Act, that “[r]ather than attempt to classify a type of discrimination as either ‘deliberate’ or ‘disparate impact,” it was “more useful to assess whether disabled persons were denied ‘meaningful access’ to state-provided services.”938 In Crowder, the Ninth Circuit held “that Hawaii’s quarantine requirement is a policy, practice or procedure which discriminates against visually-impaired individuals by denying them meaningful access to state ser- vices, programs and activities by reason of their dis- ability in violation of the ADA.”939 The only case located for this digest involving Title II of the ADA and a disparate impact claim against a transit agency is Abrahams v. MTA Long Island Bus.940 In Abrahams, the plaintiffs alleged that MTA and its paratransit provider Able-Ride had given notice that Able-Ride would no longer be providing paratransit service to people with disabil- ities who lived more than three-quarters of a mile from a fixed route regular bus line or more than three-quarters of a mile from the end of a fixed route bus line. Moreover, Able-Ride would no longer offer door-to-door service in the area within three-quar- ters of a mile from a fixed route bus line but would transport those users to the closest bus stop. The court ruled against the plaintiffs’ claim under Title II of the ADA. In addition, the court ruled against the plaintiff ’s separate disparate impact claim based on service reductions that were caused by budget restrictions. The plaintiffs alleged that 935 Id. (citation omitted). 936 Id. 937 469 U.S. 287, 105 S. Ct. 712, 83 L. Ed. 2d 661 (1985) (holding that even if there are some claims of disparate impact discrimination that would arise under Section 504 of the Rehabilitation Act or its implementing regulations, disparate impact theory did not apply to Tennessee’s reduction in annual inpatient coverage by its Medicaid program), superseded by statute as stated in Prakel v. Indiana, 100 F. Supp. 3d 661, 683 (2015). 938 Crowder, 81 F.3d at 1484 (citations omitted). 939 Id. at 1485. 940 No. 10-CV-1535 (SJF)(ARL), 2010 U.S. Dist. LEXIS 51582 (E.D.N.Y. May 25, 2010), aff’d, 644 F.3d 110 (2d Cir. 2011). D. Relationship of Title II of the ADA and the Civil Rights Act There is some authority for the view that Title II of the ADA incorporates disparate impact the- ory as a basis for recovery. One scholar has argued that in “most cases” in which a court has held that a public entity violated Title II of the ADA, the claim “involve[d] disparate impact discrimination, rather than intentional discrimination.”927 For example, in Wisconsin Community Services, Inc. v. City of Milwaukee,928 the issue was whether the city had to modify its zoning standards to pre- vent the city’s standards from discriminating against individuals with disabilities. The Seventh Circuit observed that courts have held that “munici- pal zoning qualifies as a public ‘program’ or ‘service, as those terms are employed in the ADA….”929 The court stated that, although the absence of a “‘[r]easonable accommodation is a theory of liability separate from intentional discrimination,’”930 Title II of the ADA, unlike Titles I and III of the ADA, “does not contain a specific accommodation requirement.”931 Nevertheless, in remanding the case to the district court, the appeals court held that a Title II claim under the ADA may be established by evidence (1) that the defendant intentionally acted on the basis of the disability, (2) that the defen- dant refused to provide a reasonable modification; or (3) that “‘the defendant’s rule disproportionally impacts’” individuals with disabilities.932 In Crowder v. Kitagawa,933 a class of visually impaired persons challenged Hawaii’s quarantine requirement that applied equally to all persons entering the state with a dog. Hawaii’s law effec- tively prevented persons who relied on guide dogs from enjoying the benefits of state services and activities in violation of the ADA. The district court ruled that because the quarantine requirement was not a service or benefit provided by the state, the requirement did not deny the plaintiff of any bene- fits and, thus, did not violate the ADA.934 In reversing the district court, the Ninth Circuit stated that Congress declared its intent in § 12101(a) (5) of the ADA “to address ‘outright intentional exclusion’ as well as ‘the discriminatory effects of architectural, transportation, and communication 927 Tucker, supra note 905, at 370 (footnote omitted). 928 465 F.3d 737 (7th Cir. 2006). 929 Id. at 750 (footnotes omitted). 930 Id. at 753 (citation omitted). 931 Id. at 750 (footnotes omitted). 932 Id. at 753 (citation omitted) (emphasis supplied). 933 81 F.3d 1480 (9th Cir. 1996). 934 Id. at 1483.

63 requires public entities to provide individuals with disabilities “‘meaningful access’ to their programs and services.”947 In affirming the district court’s decision, the Tenth Circuit stated that the ADA pro- hibits disparate impact discrimination: [A]lthough the conduct regulated by Title VI of the Civil Rights Act of 1964 is limited to intentional discrimination, … Congress sought with § 504—and consequently with Title II of the ADA—to remedy a broad, comprehensive con- cept of discrimination against individuals with disabilities, including disparate impact discrimination.948 E. Relationship Between Title III of the ADA and the Civil Rights Act No case has been located for this digest involv- ing a disparate impact claim against a provider of a transportation service covered by Title III. How- ever, in Independent Living Resources v. Oregon Arena Corp.,949 a federal district court in Oregon found that the ticket sale and infilling policies uti- lized at the Rose Garden effectively precluded wheelchair users from obtaining the same benefits available to ambulatory patrons. The court stated: Title III of the ADA outlaws not just intentional discrimi- nation but also certain practices that have a disparate impact upon persons with disabilities even in the absence of any conscious intent to discriminate. Thus, a public accommodation may not “utilize standards or criteria or methods of administration that have the effect of discrimi- nating on the basis of disability, or that perpetuate the discrimination of others who are subject to common administrative control.” … Within reason, a public accom- modation may be required to modify its policies, practices, or procedures to mitigate any disparate impact upon per- sons with disabilities. 28 CFR § 36.302(a). Public accom- modations must also take affirmative measures to ensure that such persons have an equal opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations that are available from that public accommodation.950 In Goonewardena v. North Shore Long Island Jewish Health System,951 in which the plaintiff ’s amended complaint alleged violations of Titles I and III of the ADA, a federal district court in New York stated that “‘Title III and Rehabilitation Act claims include claims for intentional discrimination, dispa- rate impact, and failure to accommodate.’”952 947 Chaffin, 348 F.3d at 857 (citations omitted). 948 Id. at 859-60 (citations omitted). 949 1 F. Supp. 2d 1159 (D. Or. 1998). 950 Id. at 1169 (citations omitted) (emphasis supplied). 951 No. 11-CV-2456, 2014 U.S. Dist. LEXIS 41659 (E.D. N.Y. March 26, 2014). 952 Id. at *23 (quoting Cardona v. Cmty. Access, Inc., No. 11-CV-4129, 2013 U.S. Dist. LEXIS 10778, *20 (E.D.N.Y. Jan. 25, 2013) and citing Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009) (“A qualified individual can base a discrimination claim on any of ‘three available theories: the budget cuts had a disparate impact on individu- als with disabilities as compared to individuals without disabilities. For a plaintiff to have a prima facie case of discrimination based upon disparate impact, “a plaintiff must allege: ‘(1) the occurrence of certain outwardly neutral practices, and (2) a sig- nificantly adverse or disproportionate impact on persons of a particular type produced by the defen- dant’s facially neutral acts or practices.’”941 The court held that, although the plaintiffs did not need to show discriminatory intent under a dis- parate impact theory, they had to prove that a prac- tice actually or predictably resulted in discrimination, as well as prove a “‘causal connection between the policy at issue and the discriminatory effect.’”942 However, the plaintiffs did not allege that the defen- dants had a facially neutral policy or procedure that had or will have a disproportionate impact on indi- viduals with disabilities; rather, the plaintiffs chal- lenged a single action taken by the defendant—the budget cuts that caused a reduction in service.943 Although the plaintiffs in Abrahams argued that the budget cuts would effectively eliminate service entirely in Nassau County for some people with dis- abilities, the court concluded that “‘the DOT regula- tions implementing the ADA do not contemplate perfect service’”944 for individuals with disabilities. In dismissing the plaintiffs’ disparate impact claim, the court ruled that the plaintiff ’s “argument would effectively … extend the ADA’s paratransit require- ments to include any and all services that have ever been provided, thus penalizing Defendant for volun- tarily providing additional paratransit services in the past[] and discouraging other public entities from going beyond the requirements of the ADA.”945 In Chaffin v. Kansas State Fair Board,946 portions of the state fair’s grandstand, twenty-two restrooms, and many buildings were not wheelchair accessible. The Tenth Circuit affirmed a district court’s ruling that the defendants violated the ADA because they failed to comply with the ADAAG regulations and failed to prepare a transition plan. The court, reject- ing the assertion that the ADA “requires no more than mere physical access,” reaffirmed that the ADA 941 Id. at *16 (citation omitted). 942 Id. at *17 (citation omitted). 943 Id. (citation omitted). 944 Id. (citation omitted). 945 Id. at *18. 946 348 F.3d 850 (10th Cir. 2003). The courts in Iverson v. City of Boston, 452 F.3d 94, 101-02 (1st Cir. 2006) and Californians for Disability Rights, Inc. v. Caltrans, 249 F.R.D. 334, 341-42 (N.D. Cal. 2008) rejected the Chaffin court’s interpretation of the Supreme Court’s decision in Alexander v. Sandoval, 532 U.S. 275, 121 S. Ct. 1511, 149 L. Ed. 2d 517 (2001).