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

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5 Title V provides that [a] State shall not be immune under the eleventh amend- ment to the Constitution of the United States from an action in [a] Federal or State court of competent jurisdiction for a violation of this Act. In any action against a State for a violation of the requirements of this Act, remedies (includ- ing remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in an action against any public or private entity other than a State.20 Notwithstanding Title V, this digest discusses the extent to which states and state agencies have been held to retain their Eleventh Amendment immunity to ADA claims. Title V also prohibits retaliation.21 When enacting the ADA, the Congress found that, although physical or mental disabilities do not diminish a person’s right to participate fully in all aspects of society, many people with a disability are precluded from participating fully in society because of discrimination.22 The types of discrimination include outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifica- tions to existing facilities and practices, exclusionary quali- fication standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities….23 Prior to the ADA, individuals with disabilities who were discriminated against because of their disability often had no legal recourse to prevent discrimination or to redress its effects.24 The ADA seeks to eliminate discrimination against individu- als with disabilities; provides enforceable stan- dards to address discrimination against individuals with disabilities; ensures that the federal govern- ment plays a central role in enforcing the ADA standards; and invokes the authority of Congress, including its powers to enforce the Fourteenth Amendment and to regulate commerce, to prohibit discrimination on a day-to-day basis against people with disabilities.25 III. THE ADA AMENDMENTS ACT OF 2008 AND ITS IMPACT A. Congressional Findings in and Purposes of the ADAAA Congress enacted the ADA in 1990 to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals 20 42 U.S.C. § 12202 (2018). 21 Id. § 12203. 22 Id. § 12101(a)(1)-(3). 23 Id. § 12101(a)(5). 24 Id. § 12101(a)(4). 25 Id. § 12101(b). The ADA has five titles. Title I prohibits entities from discriminating against individuals with dis- abilities in the context of employment.12 Title II applies to public entities providing public services, including transportation services,13 and provides that “no qualified individual with a disabil- ity 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.”14 For purposes of the ADA, the term public entities includes state and local governments, instrumen- talities of state or local governments, the National Railroad Passenger Corporation (Amtrak), and any public commuter authority.15 Title III of the ADA covers discrimination by pri- vate entities against individuals with a disability. Title III prohibits discrimination against individu- als on the basis of a disability by any place of public accommodation, including a terminal, depot, or other station, and by any means of transportation, such as bus or rail, that provides general or special service on a regular and continuing basis to the gen- eral public.16 Title III also prohibits private entities that provide public transportation services from dis- criminating against individuals with a disability and preventing them from receiving full and equal enjoyment of specified transportation services pro- vided by private entities. Thus, § 12184(a) states that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoy- ment of specified public transportation services pro- vided by a private entity that is primarily engaged in the business of transporting people and whose operations affect commerce.”17 Title IV requires common carriers to make tele- communication services available to individuals with hearing and speech disabilities “in a manner that is functionally equivalent to the abilities of a hearing individual who does not have a speech disability”18 and requires television public service announcements funded by the federal government to have closed captioning.19 any Executive agency or by the United States Postal Service. 12 42 U.S.C. § 12112(a) (2018). 13 Abrahams v. MTA Long Island Bus, 644 F.3d 110, 115 (2d Cir. 2011) (citing 42 U.S.C. § 12131 et seq.). 14 Id. (citing 42 U.S.C. § 12132). 15 42 U.S.C. § 12131(1) (2018). 16 Id. §§ 12181(7)(G), 12181(10), and 12182(a). 17 Id. § 12184(a). 18 47 U.S.C. § 225(a)(3) and (b). 19 Id. § 611 (closed captioning of public service announce- ments).

6 “significantly restricted,” to revise its regulations so that they are consistent with the ADAAA.35 B. Specific Amendments of the ADA First, in the ADAAA, Congress amended the defi- nition of disability. Although still having three parts or prongs, the term disability with respect to an individual now means: (A) a physical or mental impairment that substantially lim- its one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment (as described in paragraph (3)).36 Second, Congress amended the above third prong of the definition of disability in § 12102(1)(C) by stating that [a]n individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.37 The ADA, as amended, relieves a plaintiff of hav- ing to prove that his or her employer regarded the plaintiff as being disabled. Because of the ADAAA, a plaintiff only has to prove that “he or she has been subjected to an action prohibited under this Chapter because of an actual or perceived physical or mental impairment….”38 The term impairment does “not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.”39 Third, Congress directed that the ADA’s defini- tion of disability “shall be construed in favor of broad coverage of individuals under this Act, to the maxi- mum extent permitted by the terms of this Act” and that the term substantially limits “shall be inter- preted consistently with the findings and purposes of the [ADAAA].”40 Congress stated that “[a]n impairment that substantially limits one major life activity need not limit other major life activities … to be considered a disability” and that “[a]n impair- ment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”41 35 Id. § 2(b)(6). 36 Id. § 4(a), 42 U.S.C. § 12102(1)(A)-(C). 37 Id. § 4(a), 42 U.S.C. § 12102(3)(A). 38 Concannon, supra note 31, at 105 (quoting 42 U.S.C. § 12102(3)(A) (2006 & Supp. 2009)) (internal citation omitted). 39 ADAAA § 4(a), 42 U.S.C. § 12102(3)(B). 40 Id. § 4(a), 42 U.S.C. § 12102(4)(A) and (B). 41 Id. § 4(a), 42 U.S.C. § 12102(4)(C) and (D). with disabilities and provide broad coverage....”26 In the ADAAA in 2008, Congress rejected the United States Supreme Court’s decisions in Sutton v. United Air Lines, Inc.27 and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams,28 because the Court had “narrowed the broad scope of protection” that Con- gress had intended for the ADA to provide.29 The Supreme Court “incorrectly found in individual cases that people with a range of substantially limit- ing impairments are not people with disabilities… .”30 Congress also rejected the Court’s ruling that mitigative or corrective measures must be consid- ered when determining whether an individual is substantially limited in a major life activity.31 As the Congress stated in the ADAAA, a purpose of the Act is to reject the standards enunciated by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 194 (2002), that the terms “substantially” and “major” in the definition of disability under the ADA “need to be interpreted strictly to create a demanding standard for qualifying as disabled,” and that to be substantially lim- ited in performing a major life activity under the ADA “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.”32 Congress declared in the ADAAA, however, that the standard set by the Court in Toyota applicable to the term substantially limits “created an inappro- priately high level of limitation necessary to obtain coverage under the ADA….”33 Congress further declared that the primary objective in ADA cases should be to determine “whether entities covered under the ADA have complied with their obliga- tions” and that “the question of whether an individ- ual’s impairment is a disability under the ADA should not demand extensive analysis….”34 Finally, Congress stated that it expected the Equal Employment Opportunity Commission (EEOC), whose regulations, for example, had defined the term “substantially limits” to mean 26 ADAAA § 2(a)(1). 27 527 U.S. 471, 119 S. Ct. 2139, 144 L. Ed. 2d 450 (1999). 28 534 U.S. 184, 122 S. Ct. 681, 151 L.Ed. 2d 615 (2002). 29 ADAAA § 2(a)(4). 30 Id. § 2(a)(6). 31 James Concannon, Mind Matters: Mental Disability and the History and Future of the Americans with Dis- abilities Act, 36 Law & PsycHoL. Rev. 89, 104 (2012), [here- inafter Concannon]. 32 ADAAA § 2(b)(4). 33 Id. § 2(b)(5). 34 Id.