4.19.2007

M.D. Pennsylvania Notes Circuit Split Re: Whether Action for Employment Discrimination by Employee of Public Entity Exists Under Title II

Per Pennsylvania State Troopers Association v. Commonwealth, 2007 WL 853958 (M.D. Pa. Mar. 20, 2007):

Title II of the ADA states that "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." 42 U.S.C. § 12132. Whether this language creates a cause of action for employment discrimination by an employee of a public entity is a question that has split the circuit courts of appeal. Compare Zimmerman v. Or. Dep't of Justice, 170 F.3d 1169, 1178 (9th Cir.1999) (claim for employment discrimination is not cognizable under Title II) with Bledsoe v. Palm Beach County Soil & Water Conservation Dist., 133 F.3d 816, 820 (11th Cir.1998) (claim for employment discrimination is cognizable under Title II). The Third Circuit has not addressed the issue. See Koslow, 302 F.3d at 166 n. 3. . . .

This court concludes that the plain language of Title II does not create a cause of action for employment discrimination, thus the contrary interpretation of the statute by the Department of Justice is due no deference. . . . Those courts holding that Title II encompasses employment discrimination claims rely on the second clause of the statute, which states that no qualified individual with a disability shall "be subjected to discrimination by any [public] entity." Bledsoe, 133 F.3d at 821-22. These courts construe "discrimination" as an umbrella phrase that prohibits all discrimination, of any kind, by a public entity, including employment discrimination. Id. at 822. Reading § 12132 in this manner, however, is not consistent with the plain language of Title II as a whole. . . . Although the second clause of § 12132 appears to be all-encompassing, it is limited by Title II's definition of "qualified individual with a disability." Thus, employment discrimination claims against public entities are not cognizable under the second clause of Title II. . . . Congress created a cause of action for employment discrimination in Title I only. The court concludes that DOJ's interpretation of Title II, inferring a cause of action for employment discrimination, is manifestly contrary to the plain language of the statute and is not entitled to deference.

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