Impacts of the Americans with Disabilities Act on Transit Agency Liability (2018) / Chapter Skim
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Pages 60-63
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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 theory 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 disabilities 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)
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61 Thus, Title I "fit[s] comfortably within the established Title VII framework for disparate impact claims."919 It appears, however, that when one compares 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]
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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.
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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 prohibits 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 concept of discrimination against individuals with disabilities, including disparate impact discrimination.948 E
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