Can you be sued based on an obscure regulation drafted by bureaucrats that expands the reach of an already broad statute? The First Circuit Court of Appeals thought not in its ruling yesterday in Iverson v. City of Boston. Disagreeing with the Tenth Circuit, it held that lawsuits can’t be brought under Justice Department regulations expanding the reach of the Americans with Disabilities Act (ADA) by requiring self-evaluation and transition plans, since having such plans is not always necessary to comply with the ADA’s statutory requirement that the disabled receive reasonable accommodations.
It chided the Tenth Circuit for failing to follow the Supreme Court’s 2001 decision in Alexander v. Sandoval, which held that regulations expanding the reach of Title VI’s statutory ban on intentional racial discrimination to include unintentional discriminatory effects on minority groups were not enforceable through lawsuits, and thus rejected a challenge to Alabama’s English-language requirement for drivers’ licenses, which allegedly had the unintended effect of discriminating against Hispanics.
Like other circuits, the First Circuit also held that court complaints alleging disabilities-discrimination cannot simply make a “conclusory contention” of discrimination, but rather must contain some supporting allegations, such as that the plaintiff is a “qualified” person with a disability. This matters because the longer a meritless lawsuit stays in court, the more it costs. A suit that costs $250,000 to defeat at trial may cost only $75,000 if tossed out earlier on summary judgment after discovery, and may cost only $25,000 if tossed out prior to discovery on a motion to dismiss the complaint.
In its 2002 decision in Swierkiewicz v. Sorema, an age and national-origin discrimination case, the Supreme Court made it much harder to toss out meritless discrimination suits at an early stage, ruling that a typical discrimination case can survive a motion to dismiss and proceed to discovery even if the plaintiff does not allege specific facts supporting his discrimination claim, such as that he was qualified for the job. The plaintiff need only allege that he was denied a job because of his age, national-origin, etc., without giving his underlying reasons for believing he was the victim of discrimination.
However, the ADA is very different from the typical antidiscrimination statute. It is both broader (since it requires not simply that the disabled be treated as well as non-disabled workers, but also that they be given preferential “reasonable accommodations”) and narrower (it expressly protects only “qualified” disabled people, unlike race, sex, and age discrimination statutes, which require that unqualified blacks, women, and elderly people be treated as well as their unqualified white, male, and younger colleagues), containing additional statutory elements that a plaintiff must satisfy.
Since the ADA, unlike other antidiscrimination statutes, requires more than a simple showing of discrimination, the First Circuit was right to require ADA plaintiffs to make more than a simple contention of discrimination in their complaint. As the Supreme Court observed in its Swierkiewicz decision, while a plaintiff’s complaint need not provide unnecessary evidentiary details, it nevertheless must “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”
One Comment
So if I understand, congress created the ADA laws. At the request of congress, the Attorney General created regulations implementing the ADA.
The question is can plaintiffs sue to force the city to comply with the Attorney General’s regulations. The answer is it depends on whether the Attorney General’s regulations require more than does the ADA. Like most of the law today, this is a subjective test which could go either way depending on the person who applies it.
The Tenth Circuit said private plaintiffs could sue to enforce the regulations, because “The regulations simply provide the details necessary to implement the statutory right created by § 12132 of the ADA. They do not prohibit otherwise permissible conduct.” Chaffin v. Kansas State Fair Bd., 348 F.3d 850, 858
(2003).
The First Circuit, in Iverson, said plaintiffs could not sue to enforce the regulations, because “we hold that the [regulation] imposes a burden on public entities not imposed by [The ADA] itself and, therefore, is not enforceable through the instrumentality of [The ADA’s] private right of action.”
Of course the First Circuit doesn’t call this a disagreement on a subjective standard, rather they claim the Tenth Circuit was “simply incorrect.”
I wonder how much time and money plaintiffs and defendants will have to waste litigating this issue before the Supreme Court grants cert, and hopefully resolves it once and for all.