BY Donald J. Spero, Esq.

I. TITLE II OF THE ADA ENCOMPASSES A BROAD SPECTRUM OF THE ACTIVITIES AND OFFERINGS OF COVERED GOVERNMENTAL ENTITIES.

Title II of the Americans With Disabilities Act (the "ADA") requires that "...no qualified person 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." A public entity is defined to include any state or local government or any of their operating entities as well as the National Railroad Passenger Corporation and any commuter authority.

On several occasions courts have been asked to rule on what constitutes a service, program or activity of a public entity. In Barden v. City of Sacremento the plaintiffs, individuals with mobility impairments, complained of inaccessible sidewalks and lack of curb ramps. The Ninth Circuit construed the terms service, program, or activity to include the sidewalks of a city. The court also found that accessible sidewalks may be required by Section 504 of the Rehabilitation Act of 1973 which prohibits discrimination against disabled individuals by reason of their disability in programs or activities receiving federal financial assistance.

Referring to earlier precedents the court found that the terms "services, programs, or activities" apply to any offering involving the public. In reaching its decision the panel gave deference to the Department of Justice Regulation, 28 U.S.C. § 35.150(d)(2) which requires public entities with authority over streets, roads and walkways to provide curb cuts.

The Barden decision is the most recent ruling giving wide application to Title II and the Rehabilitation Act to include any conceivable aspect of a public entity's operations. It follows other decisions that have given very inclusive interpretations to the coverage of Title II.

The Supreme Court laid the foundation for a broad interpretations of "services, programs, or activities" in Pennsylvannia Department of Corrections v. Yeskey, a Title II action by a prisoner at a correctional facility. Yeskey complained that he was excluded from Pennsylvania's Motivational Boot Camp for first-time offenders because of his history of hypertension. The opinion written by Justice Scalia rejected the State's contention that state prisons are not covered by Title II. The Court reasoned that "State prisons fall squarely within the statutory definition of 'public entity,' which includes 'any department, agency, special purpose district, or other instrumentality of a State or States or local government.' Section 12131(1)(B)." The Court countered the argument that state prisons do not provide the benefit of programs, services, or activities by pointing out the variety of activities that are available in prisons. These include recreational activities, medical services and rehabilitation programs. The Court further rejected the view that prisoners are not "qualified persons with disabilities" within the meaning of section 12131(2). It noted the highly inlusive definition in that section which covers any disabled individual "...who, with or without reasonable modification to rules, policies or practices the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity."

Both Title II and the Rehabilitation Act were held to be applicable to municipal zoning decisions in Innovative Health Systems, Inc. v. City of White Plains and Bay Area Addiction Research and Treatment, Inc.("BAART") v. City of Antioch. Innovative Health Systems concerned an attempt by White Plains to prevent a drug and alcohol treatment center from locating in that city's downtown. The panel referenced the Rehabilitation Act's definition of "... 'program or activity' as 'all of the operations' of specific [governmental] entities." It approved the district court's characterization of an activity as a "natural or normal function or operation." The court further reasoned that zoning is "a normal function of a governmental entity" and it is therefore subject to the provisions of both Title II and the Rehabilitation Act. The court opined that the two statutes prohibit discrimination in all activities of a city, not merely services, programs and activities. The court was not concerned that Title II did not specifically spell out the types of prohibited discrimination as is the case with Titles I and III. It pointed to the view expressed in the report of the House Committee on Education and Labor that Title II is intended to include all of the prohibitions of the Rehabilitation Act. The court additionally cited with approval the preamble to the Department of Justice Title II regulations that provides "[T]itle II applies to anything a public entity does...All governmental activities of public entities are covered."

In the BAART case the defendant city tried to prevent the location of a methadone clinic within 500 feet of residential property. The Ninth Circuit followed the Second Circuit's decision in Innovative Health Systems, holding that both Title II and the Rehabilitation Act are applicable to municipal zoning decisions. The court observed that section 504(b)(1)(A) of the Rehabilitation Act defines programs or activities of public entities as "all of the operations" of the covered entities. It further agreed with the Second Circuit that Title II adopts the prohibitions of the Rehabilitation Act.

Title II was also held applicable to city treatment of detainees by city police by the Ninth Circuit in Lee v. City of Los Angeles. The dramatic factual situation in that case involved the erroneous arrest, extradition and incarceration of Kerry Sanders, an individual with severe mental illness, while his mother frantically searched for him for two years. The individual's identity was not confirmed as that of Robert Sanders, the fugitive from a correctional facility for whom he was mistaken, by fingerprints either in Los Angeles where he was arrested or in New York to which he was extradited and where he was imprisoned. The error was not discovered until the actual Robert Sander was arrested. The court held that these facts could give rise to a claim under Title II which it interpreted as applying to "anything a public entity does."

Title II was held applicable to a municipality's contracting in Johnson v. City of Saline in which the court found "...that the phrase 'services, programs or activities' encompasses virtually everything that a public entity does." Johnson contracted to operate the city's public access television station which he did rent free on the second floor of a city owned building. Because he had an impairment that impeded his ability to access the building's only rest room on the first floor he asked the city to move his studio to a location from which he could more readily reach the rest room. This was not done by the city which subsequently terminated its contract with Johnson. In finding that Mr. Johnson had a justiciable claim the court cited with approval Regulation 29 C.F.R. § 35.130 that states in part that a "... public entity, in the selection of procurement contractors, may not use criteria that subject qualified individuals with disabilities to discrimination on the basis of disability."

In Johnson the court also found that Title II required the city to provide accessible facilities for contractors working on its premises. The fact that the building in question was not be generally open to the public did not relieve the city of that obligation.

Despite the language giving wide birth to the coverage of Title II the circuits are split on whether it will allow an action for employment discrimination. In Zimmerman v. Oregon, the Ninth Circuit said that it did not. It found that employment is not a service, program or activity of a public entity. The Eleventh Circuit found employment to be covered by Title II in Bledsoe v. Palm Beach Soil & Water Conservation District.

The Rehabilitation Act does prohibit discrimination in employment by recipients of federal financial assistance. The 1992 amendment to Section 794(d) applies the same standards to determine if there has been employment discrimination as are used in Title I of the ADA. The Tenth Circuit recently held in Schrader v. Ray that the prohibition against employment discrimination in the Rehabilitation Act is applicable to all employers receiving federal financial assistance. It does not adopt the Title I definition of employer which includes only those employers with 15 or more employees. See also Johnson v. N.Y. Hospital, taking the same view. The Sixth Circuit, however, found that Section 504, like Title I of the ADA covers only those employers with 15 or more employees in Hiller v. Brown.

II. THE COVERAGE OF TITLE III IS NOT LIMITED TO PHYSICAL LOCATIONS

The plaintiffs in Rendon v. Valleycrest Productions, Ltd., were hearing impaired and upper body mobility impaired individuals who sought to be contestants on the television quiz show, "Who Wants To Be A Millionaire." They complained that the automated telephone selection process for the program prevented them from competing to be on the show. Those seeking to be contestants call a toll free number from which they are asked questions. The plaintiffs with hearing impairments could not hear the questions and no TDD telephone access was provided. The plaintiffs with upper body mobility impairments were unable to operate a telephone keypad through which questions are answered rapidly enough due to their impairments.

The court rejected the defendants' contention that Title III of the ADA is not applicable to the claim as a telephone procedure is not a "place" of public accommodation. It held that the ADA is applicable to intangible barriers as well as physical barriers. The court pointed out the statute's prohibitions against imposing eligibility criteria that screen out individuals with disabilities and its mandate to modify practices and procedures when necessary to accommodate individuals with disabilities. The court observed that "There is nothing in the text of the statute to suggest that discrimination via an imposition of screening or eligibility requirements must occur on site to offend the ADA."

The Rendon court distinguished the situation at issue from that considered in Stoutenborough v. The National Football League. Stoutenborough held that Title III was inapplicable to the complaints of hearing impaired individuals that certain football games were blacked out from television coverage. The plaintiffs claimed that the were unable to follow the radio broadcasts of the game. In Stoutenborough the court held that football game telecasts are not public accommodations. It reasoned that telecasts are not places and are not listed in the 12 general categories designated as public accommodations in Title III. The court in Rendon held that "Plaintiffs in the present case, however, are not suing merely to observe a television show; rather, they seek the privilege of competing in a contest held in a concrete space, a contest they have been screened out of because of their disabilities." (Footnote in the original omitted.) The court further noted that "The phone quiz is therefore a means of access to the public accommodation, not an end in itself. The court distinguished those cases that have found insurance not to be regulated as they are services, not identified with a place of accommodation.

The Rendon decision may well set the stage for the inclusion under Title III coverage of services that can be shown to have a sufficient nexus with a physical location, a nexus that was not shown in Stoutenborough.

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