CRS Report for Congress

Remedies and Standing to Sue Under S. 933, the "Americans with Disabilities Act of 1989"

Charles V. Dale
Legislative Attorney
American Law Division

May 26, 1989
CRS
Congressional Research Service * The Library of Congress

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Summary

	S. 933, the “Americans with Disabilities Act of 1989," would broaden current federal sanctions against handicap discrimination which, as found mainly in the Rehabilitation Act of 1973, are restricted in coverage to the agencies of the federal government, federal contractors, and recipients of federal aid. The bill would augment this protection with a panoply of new safeguards applicable to public and private employers, bus, rail, and related transportation services and facilities, most places of public accommodation, and telecommunication relay services. For the most part, the relief provided by the bill to enforce these new protections draw expressly upon the remedies and procedures found in other civil rights laws. In addition, the bill seems to borrow from last year’s Fair Housing Amendments a relatively novel, and far broader, concept of legal standing to complain of prospective violations than traditionally embodied in other statutory contexts.

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Remedies and Standing to Sue Under 8S. 933, the "Americans with Disabilities Act of 1989."

	S. 933, the "Americans with Disabilities Act of 1989," would broaden current federal sanctions against handicap discrimination which, as found mainly in the Rehabilitation Act of 1973, are restricted in coverage to the agencies of the federal government, federal contractors, and recipients of federal aid. The bill would augment this protection with a panoply of new safeguards applicable to public and private employers, bus, rail, and related transportation services and facilities, most places of public accommodation, and telecommunication relay services. For the most part, the relief provided by the bill to enforce these new protections draw expressly upon the remedies and procedures found in other civil rights laws. In addition, the bill seems to borrow from last year’s Fair Housing Amendments a relatively novel, and far broader, concept of legal standing to complain of prospective violations than traditionally embodied in other statutory contexts. This report analyzes the various remedy provisions in S. 933 as they relate to current provisions of existing federal civil rights legislation.

Employment

	Title II of the bill bans discrimination against qualified disabled individuals with respect to hiring, discharge, compensation or any term, condition, or privilege of employment by employers with over 15 employees, labor unions, employment agencies, and joint labor-management committees. It requires “reasonable accommodation” to the known physical or mental limitations of the disabled employee or applicant unless this would impose an “undue hardship" on business operations. The enforcement provisions contained in §205 of the bill draw directly upon remedies and procedures mandated by equal employment opportunity provisions of Title VII of the 1964 Civil Rights Act as "set forth in sections 706, 709, and 710 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5, 2000e-8, and 2000e-9" as well "section 1981 of the Revised Statutes (42 U.S.C. 1981). . .”

	Briefly, the procedural mechanism outlined by §706 of Title VII, as incorporated by the bill, is as follows. The Equal Employment Opportunity Commission is responsible for administrative enforcement of Title VII with respect to private and state and local government employment. It is empowered to investigate and conciliate formal charges of employment discrimination, which must be filed by an aggrieved individual or on the Commission’s own initiative within 180 days of the alleged unlawful employment practice. Title VII imposes specific time limits for processing charges which may be extended for up to 60 days to accommodate deferrals

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to state or local fair employment practices agencies with jurisdiction to hear the charges. Based on its investigation, the EEOC must make a determination whether there is “reasonable cause" to believe the charge, a finding that is essential to initiation of conciliation efforts required by the statute. Where its attempts at voluntary conciliation fail, the Commission is authorized to bring a civil action against the uncooperative employer, employment agency, or labor organization except where the respondent is a government, governmental agency, or political subdivision. In the case of governmental employers, the matter must be referred to the Attorney General for judicial enforcement action.

	A Commission finding of reasonable cause is not, however, a prerequisite to a private civil action under Title VIJ. Where the Commission dismisses a charge or has not, within 180 days of the filing of the charge, reached a conciliation agreement or initiated court action, it must notify the charging party who then has 90 days to file a suit. These provisions were designed to permit private parties to pursue independently their Title VII remedies in federal court where there is Commission inaction, dismissal, or unsatisfactory conciliation agreement. Under the bill, moreover, handicap discrimination claimants would have a private right of action independent of Title VII by virtue of the incorporated reference to §1981. Thus, as in race discrimination cages currently, handicap discrimination claims could be filed directly in federal court under §1981 without first exhausting Title VII administrative remedies.

	The federal courts possess broad remedial authority under Title VII. They may not only enjoin the unlawful employment practices but may "order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay. . . or any other relief as the court deems appropriate.^1 Liability for Title VII backpay is limited to the two years prior to filing the complaint. No such limitation pertains to $1981 relief, however. The U.S. Supreme Court has held that compensatory and punitive damages, not generally recognized under Title VII, may be awarded in §1981 actions.^2 Thus, damages for emotional distress may be revered under §1981 but not Title VII. Attorneys’ fees may be awarded the prevailing party under both Title VII and §1981. Note further, however, that the basic applicability of §1981 as a remedy for discrimination in private employment is an issue currently being reexamined by the Supreme Court in a case whose outcome could have ramifications in the present context.^3

^1 42 U.S.C. 20000-5(g).
^2 Johnson v. Railway Express Agency, 421 U.S. 454 (1976).
^3 Patterson v. McLean Credit Union, No. 87-107.

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	The inspection, recordkeeping, and reporting requirements imposed generally upon employers by §709 of Title VII would also pertain to administration of the handicap discrimination provisions of the bill. Similarly, general Commission powers related to subpoenas, witnesses and the production of evidence in Title VII proceedings would apply to its administration of the bill as well.^4

	The enforcement provisions of the bill’s §205 are substantially broader than their Title VII counterpart in one noteworthy respect. That is, the procedure and remedies described above would apparently be available not only to individual victims of alleged prior or current ongoing acts of discrimination but also to anyone “who believes that he or she is. . about to be subjected to discrimination on the basis of disability’ in violation of the proposed act or regulations thereunder. In this regard, the bill seems to allow for prospective relief from feared or threatened future harm to the full extent otherwise available to persons who are victims of perfected acts of employment bias. This contrasts with Title VII which currently authorizes charges by or on behalf of persons "aggrieved" by practices that have already occurred, and for Commissioner charges alleging that an employer or other covered entity "has engaged in an unlawful employment practice. . ."^5

	Title VII does permit the courts to issue "temporary or preliminary relief which may include injunctions against anticipated violations of the statute in at least some circumstances.^6 As a general rule, however, preliminary relief may be granted in the employment context only where the plaintiff can show likelihood of success on the merits and irreparable injury caused by the threatened conduct. For example, in Sampson v. Murray,^7 a non-Title VII case, the U.S. Supreme Court held that a probationary federal employee about to be terminated in violation of procedural regulations issued by the Civil Service Commission could obtain preliminary relief pending an appeal to the CSC only on a showing of extraordinary “irreparable harm." Neither the threatened loss of income alleged by the employee, nor her allegations of humiliation and damage to reputation constituted such harm, said the Court, because each of these elements of injury could be fully remedied if the plaintiff prevailed on the merits. The courts are divided as to whether EEOC proceedings under §706(f)(2) must show irreparable harm,^8 but such a standard hag been held satisfied by an alleged threatened retaliation because of the chilling effect of such conduct on the exercise of Title VII rights by other employees.^9

^4 42 U.S.C. 2000e-9, 29 U.S.C. 161.
^5 See 42 U.S.C. 2000e-5.
^6 When a timely charge is filed and if, "on the basis of a preliminary investigation’, it appears "that prompt judicial action is necessary to carry out the purposes of [the Act]," the EEOC is authorized by $706(f)(2) to seek preliminary injunctive relief pending final disposition of the charge. The charging party’s right to seek immediate injunctive relief is not specified but, as a general matter, the courts may have inherent equitable discretion to grant injunctive relief to private claimants. Sheehan vu. Purolator Courier Corp., 676 F.2d 877 (7th Cir. 1982).
^7 416 U.S, 61 (1974).
^8 EEOC v. Anchor Hocking Corp., 666 F.2d 1037 (6th Cir. 1981)(yes);EEOC v. Pacific Press Publ. Ass’n, 535 F.2d 1182 (9th Cir. 1976)(no, if the EEOC acts pending resolution of the charge. If the charge has been processed, EEOC must establish traditional “irreparable harm.").
^9 Holt v. Continental Group, Inc., 708 F.2d 615 (2d Cir. 1983).

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	The bill thus appears to adopt a broader definition of actionable discrimination than present Title VII law. Under §205, an administrative or judicial claim for relief could be predicated upon an allegation either that the disabled person had been discriminated against by the employer or potential employer or that the party “believes that he or she is . . about to be subjected to discrimination" because of a disability. Moreover, the bill seems to adopt a wholly subjective standard of “belief since there is no explicit requirement that the belief be "reasonable" or otherwise justified by objective consideration of the surrounding facts or circumstances. The determinative factor may then be not whether the alleged facts reasonably support an inference that discrimination is about to occur but whether the charging party harbored such a belief, whether reasonable or not. Of the federal civil rights laws, only the recently enacted Fair Housing Amendments Act of 1988 employs a similar standard.^10 The legislative history of the 1988 Act, however, fails to elucidate Congress’ intention and there is a dearth of judicial opinion on its meaning to date.

Public Services

	Title III of the bill generally prohibits discrimination against the disabled in administration of state and local governmental affairs and mandates accessibility standards for the disabled to public transportation facilities including bus and rail systems--other than air carriers. Section 305 incorporates for enforcement of Title III the “remedies, procedures, and rights set forth in §5065 of the Rehabilitation Act of 1973 (29 U.S.C. 794a)" which are again made available to discriminatees or those who “believe” they are “about to be subjected to discrimination. . ." As amended in 1978, §506 in turn provides for a bifurcated enforcement scheme depending upon whether the alleged discriminators are federal agencies or federally assisted entities. Thus, disabled persons are granted the same remedies against federal agencies violating the Rehabilitation Act as are available under Title VII of the 1964 Civil Rights Act.^11 Those remedies and procedures are outlined in the previous section of this report.

^10 Under $802(i)(2) of the Amendments, an “aggrieved person" includes anyone who “believes that such person will be injured by a discriminatory housing practice that is about to occur." 42 U.S.C. 3602(i)(2).
^11 29 U.S.C. §794a(a)(1).

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	Section 605 also grants disabled individuals the same remedies against state and local governments or private parties who are recipients or providers of federal financial assistance as are available under Title VI of the 1964 Civil Rights Act.^12 Generally, Title VI provides both administrative and judicial remedies for persons who suffer discrimination in any "program or activity” that is financially aided by the federal government. Federal grantmaking agencies are authorized to investigate and hold formal hearings based on individual complaints or their own compliance reviews and to terminate federal financial assistance to any institution found to operate in a discriminatory manner. While the Supreme Court has thus far avoided the issue, lower federal courts have generally found that a private cause of action is available to enforce Rehabilitation Act claims.^13 Moreover, monetary damages as well as injunctive relief have been awarded by analogy to Title VI which was interpreted by the Court in Guardians Associations v. Civil Service Commission to authorize a damage remedy in intentional discrimination cases.

	However, a basic question could be raised as to whether §306 of the bill is intended to incorporate the entire §605 remedial framework, even though the Title VII references there relate to remedies available against federal agencies not apparently subject to Title III of the bill, or only those that pertain to federally assisted entities of a kind covered by Title III, namely the remedies and procedures under Title VI of the 1964 Civil Rights Act. Absent clarification in the bill itself or its legislative history, an argument could be made for either interpretation based on the present wording of §305.

Public Accommodations and Services Operated by Private Entities

	Title IV of the bill specifies rules concerning nondiscrimination and accessibility by the disabled to privately operated places of “public accommodation,” broadly defined by §401 to include most private establishments providing services or employment to the public, and "public transportation services provided by a privately operated entity." The enforcement section of the title is based on the federal Fair Housing Act and provides in §405 that “[sections 802(i), 813, and 814(a) and (d) of the Fair Housing Act (42 U.S.C. 3602(i), 3613, and 3614(a) and (d)) shall be available with respect to any aggrieved individual” as discussed below.

^12 42 U.S.C. 2000d et seq.
^13 E.g., Doe v. Marshall, 622 F.2d 118 (6th Cir. 1980), cert. denied, 451 U.8. 993 (1981); Adashunas v. Negley, 626 F.2d 600 (7th Cir. 1980); Miener v. Miasouri, 678 F.2d 969 (8th Cir.), cert. denied, 459 U.S. 916 (1963).

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	The provisions referenced in §405 are basically those authorizing private civil actions by aggrieved persons, and judicial actions by the Attorney General in “pattern or practice cases," alleging fair housing violations. Thus, as incorporated into Title IV of the bill, any person claiming to be, or who “believes” that he or she is “about to" be, discriminated against due to disability would have two years to file a federal district court action for “appropriate relief.” If the court determined that a violation had occurred, or was about to occur, it could award the plaintiff actual and punitive damages, a temporary or permanent injunction, and “such affirmative action as may be appropriate.” Similarly, in cases brought by the Attorney General alleging a “pattern or practice of resistance" to protected rights, the court would be empowered to grant the same full range of injunctive relief and monetary damages. But in addition, civil penalties of up to $50,000 for a first violation and $100,000 for any subsequent violations would also be authorized. The court would have authority to appoint an attorney and waive fees and costs of the action for a financially needy plaintiff. The prevailing party in both public and private actions could be awarded attorney’s fees and costs at the court’s discretion.

	While Title IV of the bill relies upon the judicial remedy provisions of the Fair Housing Act, $405 excludes reference to the administrative complaint, investigation, and adjudication procedures in that law as amended by the Fair Housing Amendments Act of 1988. Thus, the housing law’s expedited procedure for a federal agency investigation and “reasonable cause" determination followed by a hearing before an administrative law judge would not be available under Title IV.

Telecommunications Relay Services

	Finally, Title V of the bill states a general rule that it shall be unlawful discrimination for any common carrier of telephone services to the general public to fail to provide "telecommunication relay services providing "individuals who use nonvoice terminal devices because of disabilities with opportunities for communication that are equal to those provided to their customers who are able to use voice telephone services. . ." Section 504 adopts the same Fair Housing Act provisions for enforcement by civil actions as - employed for judicial enforcement of the Title IV public accommodations provisions discussed above. In addition, however, §504(b) provides for administrative enforcement of Title V by the Federal Communications Commission which is to employ the "remedies, procedures, and rights set forth in sections 206, 207, 208, and 209 of the Communications Act of 1934 (47 U.S.C. 206, 207, 208, and 209) and in title IV of the Communications Act of 1934 (47 U.S.C. 401 et seq.)."

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	The cited provisions of law generally authorize the filing of complaints and investigation by the FCC of any alleged violation of the federal communications law by a regulated carrier and provide that such “carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation.^14 The Commission is empowered to hold hearings, to make all determinations as to liability and damages, and to "make an order directing the carrier to pay the complainant the sum to which he is entitled.^15 In addition, §504(b)(S) of the bill would arm the Commission with “cease and desist" and general authority to "take other actions as it finds appropriate and necessary" against violators of disabled rights. Finally, any carrier that “knowingly fails or neglects to comply” with the law or Commission orders or regulations thereunder would be subject to forfeitures to the government of $10,000 for each offense.

	All proceedings before the Commission would be conducted pursuant to procedural requirements set forth in the communications law which, among other things, provides for judicial appeals and enforcement of PCC orders.^16

[Signature]
Charles V. Dale
Legislative Attorney
May 26, 1989



^14 47 U.S.C. $206.
^15 47 U.S.C. §209.
^16 47 U.S.C. 401 et. seq

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