Ireland & Bales on Employment Discrimination Under Title II of the ADA

New on SSRN: Employment Discrimination Under Title II of the Americans with Disabilities Act (forthcoming in Admin. & Reg. L. News, 2008). The abstract:

Title I of the Americans with Disabilities Act prohibits employment discrimination on the basis of discrimination. Title II prohibits discrimination by providers of public services. Title I contains several exclusions (federal employees, employees of small state agencies) and procedural requirements (filing a charge of discrimination before filing suit) that are not in Title II. If an employer is covered by Title II but not by Title I, may that employer be sued for disability discrimination in employment?

The circuits are split on the issue. The Ninth Circuit has held that because Title I explicitly covers employment, and because Title II covers public services but does not specifically mention employment, Congress must have intended for Title II not to cover employment. This article, however, agrees with the circuits that have held that Title II covers employment discrimination claims, for three reasons. First, the plain textual language of Title II broadly prohibits all discrimination by public entities. Second, the ADA's legislative history indicates that Congress intended Title II to apply to employment discrimination. Third, the Department of Justice's regulations interpreting Title II are on point and entitled to deference.

This is an updated and significantly condensed version of an article that will be published imminently at 28 N. Ill. U. L. Rev. (2008).