Reese Wilking | Are Disparate Impact Claims Cognizable Under Federal Disability Law?

BACKGROUND

Discriminatory intent claims involve proving that an intentional action, motivated by a discriminatory purpose, caused harm. This is sometimes also called disparate treatment. In contrast, a disparate impact claim can be brought when no intentional discrimination is apparent, but the outcomes of an action have negatively impacted a protected class. In the case of the Americans with Disabilities Act and its amendments in Section 504 of the Rehabilitation Act of 1974, this protected class is individuals with disabilities.

The statute at issue in these cases reads, “No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.” 29 U.S.C. § 794.

In Alexander v. Choate, the Supreme Court left open the question of whether disparate impact claims are cognizable under the ADA by “assum[ing] without deciding that § 504 reaches at least some conduct that has an unjustifiable disparate impact upon the handicapped.” 469 U.S. 287, 299 (1985). Choate gave special consideration to the statutory purpose of protecting individuals with disabilities from discrimination and “the desire to keep § 504 within manageable bounds.” Id. The “manageable bounds” angle refers to the fact that many more programs will impact individuals with disabilities differently than is the case for other protected classes “[b]ecause the handicapped typically are not similarly situated to the nonhandicapped[.]” Id. at 298. The Court considered this an invitation for litigation, predicting a possible “wholly unwieldy administrative and adjudicative burden.” Id.

ISSUE

Are disparate impact claims cognizable under Title II of the Americans with Disabilities Act or Section 504 of the Rehabilitation Act?

THE SPLIT

3rd Circuit

In Doe v. Perkiomen Valley Sch. Dist., No. 22-CV-287, 2022 WL 356868 (E.D. Pa. Feb. 7, 2022), a district court explicitly confirmed what the Third Circuit had suggested in an earlier case: disparate impact claims are cognizable under the ADA. In the earlier case, Helen L. v. DiDario, the Third Circuit followed Choate’s reasoning to avoid “eviscerate[ing] the ADA by conditioning its protections upon a finding of intention or overt discrimination.” 46 F.3d 325, 335 (3d Cir. 1995). The Helen L. court focused specifically on the legislative intent behind Section 504. Id. (“Because the ADA evolved from an attempt to remedy the effects of “benign neglect” resulting from the “invisibility” of the disabled, Congress could not have intended to limit the Act's protections and prohibitions to circumstances involving deliberate discrimination.”) However, the defendant in the instant district court case attempted to argue that this reasoning did not resolve the existence of disparate impact claims under the ADA. The court did not find this persuasive, noting that, while “Helen L. may not have used the words ‘disparate impact,’” its holding “amounts to the same thing,” and disparate impact claims are cognizable under the ADA. Perkiomen Valley Sch. Dist., No. 22-CV-287, 2022 WL 356868, at *13 (citation omitted).

Interestingly, the Perkiomen Valley case was actually about COVID protocols; the Plaintiffs’ children’s school had made masking optional, which the Plaintiffs argued “disparately impacts Plaintiffs’ medically fragile children by preventing their in-person access to education and other services at the District’s facilities without incurring a substantially increased risk of severe illness or death.” Id. at *14. After considering a wealth of scientific evidence, including the benefits of masking and the increased risk of complication or death for individuals with serious health problems (like the Plaintiffs’ children), the court found that the mask-optional policy “prevents the Child-Plaintiffs from ‘meaningfully accessing’ the benefits of in-person education at this time because they cannot attend school alongside their unmasked peers without incurring a real risk of serious illness or worse.” Id. at *17-18.

6th Circuit

By contrast, in Doe v. BlueCross BlueShield of Tennessee, Inc., the Sixth Circuit determined that disparate impact claims are not cognizable under the ADA or Section 504, relying on textual and administrability concerns. 926 F.3d 235, 241-42 (6th Cir. 2019). The court focused on the statute’s language prohibiting discrimination on the grounds of disability without extending that prohibition to actions that may “otherwise adversely affect” a protected group. 926 F.3d at 242 (citing Griggs v. Duke Power Co., 401 U.S. 424, 429–31, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) (finding that Title VII, which includes the words “otherwise adversely affect[,]” does contemplate disparate impact claims)).

After noting the Supreme Court’s observation, the court also stated that “Section 504 ‘was patterned after Title VI[,]’” in Cmty. Television of S. Cal. v. Gottfried, 459 U.S. 498, 509 (1983), on the fact that the Court has already held that disparate impact claims are not cognizable under Title VI. BlueCross BlueShield of Tennessee, 926 F.3d at 242 (citing Alexander v. Sandoval, 532 U.S. 275, 280-81 (2001)).

Ultimately, the court was persuaded by the “unwieldy litigation” concern mentioned in Choate. The Sixth Circuit concluded that “[b]ecause many neutral (and well-intentioned) policies disparately affect the disabled—the point of such laws most often is to ease the burden of having a disability—the proposed use of the theory under § 504 ‘could lead to a wholly unwieldy administrative and adjudicative burden.’” BlueCross BlueShield of Tennessee, Inc., 926 F.3d at 242 (6th Cir. 2019) (citing Choate, 469 U.S. at 298).

LOOKING FORWARD

Given the Court’s apparent concern in Choate for avoiding a ballooning litigation problem, they may prefer to limit the doctrine of disparate impact under the ADA, taking an intermediate stance between the Third and Sixth Circuit approaches discussed here. If more circuits start to weigh in on this issue and create a more pervasive split, the Court should intervene, as making disparate impact disability claims cognizable only in parts of the country seems even more unmanageable than a massive influx of litigation. Additionally, as the nation adjusts to COVID waves and concerns, the issue may become more broadly applicable, just as it did in the Third Circuit in May.