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Citations:

Bluebook 21st ed.

Ian Meyer, Health & Employment Law - Seventh Circuit Declares No Relief from Public
Employment Discrimination under Title II of the Americans with Disabilities Act -
Brumfield v. City of Chicago, 735 F.3d 619 (7th Cir. 2013), 10 J. HEALTH & BIOMEDICAL
L. 519 (2015).

ALWD 6th ed.

Meyer, I. ., Health & employment law - seventh circuit declares no relief from public
employment discrimination under title ii of the americans with disabilities act -
brumfield v. city of chicago, 735 f.3d 619 (7th cir. 2013), 10(3) J. Health &
Biomedical L. 519 (2015).

APA 7th ed.

Meyer, I. (2015). Health & employment law seventh circuit declares no relief from
public employment discrimination under title ii of the americans with disabilities
act brumfield v. city of chicago, 735 f.3d 619 (7th cir. 2013). Journal of Health &
Biomedical Law, 10(3), 519-530.

Chicago 17th ed.

Ian Meyer, "Health & Employment Law - Seventh Circuit Declares No Relief from Public
Employment Discrimination under Title II of the Americans with Disabilities Act -
Brumfield v. City of Chicago, 735 F.3d 619 (7th Cir. 2013)," Journal of Health &
Biomedical Law 10, no. 3 (2015): 519-530

McGill Guide 9th ed.

Ian Meyer, "Health & Employment Law - Seventh Circuit Declares No Relief from Public
Employment Discrimination under Title II of the Americans with Disabilities Act -
Brumfield v. City of Chicago, 735 F.3d 619 (7th Cir. 2013)" (2015) 10:3 J Health &
Biomedical L 519.

AGLC 4th ed.

Ian Meyer, 'Health & Employment Law - Seventh Circuit Declares No Relief from Public
Employment Discrimination under Title II of the Americans with Disabilities Act -
Brumfield v. City of Chicago, 735 F.3d 619 (7th Cir. 2013)' (2015) 10(3) Journal of
Health & Biomedical Law 519.

MLA 8th ed.

Meyer, Ian. "Health & Employment Law - Seventh Circuit Declares No Relief from Public
Employment Discrimination under Title II of the Americans with Disabilities Act -
Brumfield v. City of Chicago, 735 F.3d 619 (7th Cir. 2013)." Journal of Health &
Biomedical Law, vol. 10, no. 3, 2015, p. 519-530. HeinOnline.

OSCOLA 4th ed.

Ian Meyer, 'Health & Employment Law - Seventh Circuit Declares No Relief from Public
Employment Discrimination under Title II of the Americans with Disabilities Act -
Brumfield v. City of Chicago, 735 F.3d 619 (7th Cir. 2013)' (2015) 10 J Health &
Biomedical L 519
 519

Journalof Health & Biomedical Law, X (2015): 519-530

C 2015 Journalof Health & Biomedical Law
Suffolk University Law School

Health & Employment Law - Seventh Circuit

Declares No Relief From Public Employment
Discrimination Under Title II of the Americans With
Disabilities Act - Brumfield v. Gy of Chicago, 735 F.3d
619 (7th Cir. 2013).
Ian Meyer*

All qualified individuals from state and local government entities are protected
from disability-based discrimination in public services, programs, and activities by Tide
II of the Americans with Disabilities Act ("ADA" or "the Act").' In Brumfield v. City of
2
Chicago, the United States Court of Appeals for the Seventh Circuit considered whether

*J.D. Candidate, Suffolk University Law School, 2015; B.A., Saint Anselm College, 2012. Mr.
Meyer may be contacted at iancmeyer@gmail.com.
1 See Americans with Disabilities Act of 1990, 5 202, 42 U.S.C. § 12132 (2000); State and Local
Governments (Title II), UNITED STATES DEPARTMENT OF JUSTICE CIVIL RIGHTS DIVISION,
INFORMATION AND TECHNICAL ASSISTANCE ON THE AMERICANS WITH DISABILITIES ACT,
http://www.ada.gov/adatitlelI.htm (last visited Oct. 10, 2014); Americans with DisabilitiesAct
(ADA), UNITED STATES DEPARTMENT OF EDUCATION, http://www2.ed.gov/about/offices/
list/ocr/docs/hq9805.html (last visited Oct. 10, 2014) [hereinafter "DOE/ADA'].
The Americans with Disabilities Act gives civil rights protections to individuals with disabilities
that are like those provided to individuals on the basis of race, sex, national origin, and religion.
It guarantees equal opportunity for individuals with disabilities in employment, public
accommodations, transportation, State and local government services, and telecommunications.
Id. Title I deals with employment issues. See 5 202, 42 U.S.C. § 12112 (2000). Employers with
more than fifteen employees may not discriminate against qualified individuals on the basis of
their disability. DOE/ADA, http://www2.ed.gov/about/offices/list/ocr/docs/hq9805.html
(last visited Oct. 10, 2014). Employers are expected to reasonably accommodate disabled
employees unless doing so is an undue hardship. Id. "Tide II of the ADA covers programs,
activities, and services of public entities." Title II Technical Assistance Manual, THE AMERICANS
WITH DISABILITIES ACT, http://www.ada.gov/taman2.html#II-1.1000 (last visited Oct. 10,
2014). "[It] is intended to protect qualified individuals with disabilities from discrimination on
the basis of disability in the services, programs, or activities of all State and local governments."
Id. The ADA also extends discrimination prohibitions from Section 504 of the Rehabilitation
Act of 1973 to all activities of state and local governments regardless of whether these
governments receive federal financial assistance. Id.
2 735 F.3d 619 (7th Cir. 2013).
520 JOURNAL OF HEALTH & BIOMEDICAL LAW [VOL. X NO. 3

Title II of the ADA applied to those who claim discrimination in public employment. 3
This question has resulted in a circuit split across federal courts. 4 The Brumfeld court
held that Title 11 does not apply to disability-based discrimination by employers and that
these claims must be brought under Tide I of the Act.'

Linda Brumfield ("Brumfield"), a Chicago police officer, lost her job after
several incidents of inappropriate conduct. 6 She claimed to have been experiencing
psychological problems requiring her to submit to periodic evaluations to determine if
she was fit for duty.7 She was evaluated four times and although she was found fit for
duty each time, the examiners warned that she could be "vulnerable to workplace
stress." 8 Despite being cleared for duty, she accumulated three suspensions before her
termination.9

In August 2010, Brumfield filed a lawsuit in the Northern District of Illinois,

alleging that her discharge and suspensions violated Title II and Section 504 of the
Rehabilitation Act.' 0 The city argued Title II did not cover employment discrimination
and that Brumfield precluded herself from filing under Title I, which was the
appropriate section of the law, and therefore she failed to state a claim." The judge held

3 Id. at 622.
4 Id. Two circuits, the Ninth and Tenth, had previously decided Title II did not apply while one
circuit, the Eleventh, came to the opposite conclusion. Id.
s Id.
6 Brumfield, 735 F.3d at 623. Brumfield herself admitted that the first two disciplinary measures
were a result of unspecified incidents that occurred in June 2006. Id. Her third discipline
resulted after she told her captain she was going to fake an injury and proceeded to collapse on
the ground showing off her false injury. Id.
7 Id. Brumfield claimed that her ability to eat, sleep, and concentrate had been affected. Id. at
622.
8 Id. at 623. There was no further explanation given for why she was vulnerable to this stress. See
Brumfield, 735 F.3d at 623 (describing only what was found by psychological examiner).
9 Id. The record was also unclear regarding each of the incidents leading to her numerous
suspensions. Id
10 Id. Brumfield previously filed a claim asserting that her psychological evaluations had been
discriminatory based on her status as an African American lesbian. Id She then voluntarily
dismissed the first case. Id. Her second and third suits remained standing. Brumfield, 735 F.3d at
623. The second suit alleged claims under Section 504 of the Rehabilitation Act, a law designed
to protect the rights of individuals with disabilities in programs and activities that receive Federal
financial assistance. See also ProtectingStudents With Disabilities,U.S. DEPARTMENT OF EDUCATION,
http://www2.ed.gov/about/offices/list/ocr/504faq.html (last modified Dec. 19, 2013)
(answering frequently asked questions about Section 504).
11 See Brumfield, 735 F.3d at 623 (explaining Brumfield's failure to raise issue on appeal acted as
waiver). The city asserted three reasons why Brumfield failed to state a claim: (1) Title II of the
ADA does not cover employment discrimination; (2) Brumfield failed to exhaust all the
administrative preconditions to filing a Tide I suit; and (3) she failed to state that she had been
2015]1 JOURNAL OF HEALTH & BIOMEDICAL LAW 521

that although Title II applies to employment discrimination, Brumfield failed to state a

claim because she did not prove a correlation between her disability and her
12
termination. Although Brumfield filed a third lawsuit correctly pleading violations
under Title I, the case was barred by res judicata.13 The Seventh Circuit consolidated
her appeals and upheld the judgments, while overruling the lower court's holding that
Title II applies to public employment discrimination.14

Federal protections against discrimination based on disability stem from the

Americans with Disabilities Act of 1990.15 Congress intended that this Act would
"provide a clear and comprehensive national mandate for the elimination of
discrimination against individuals with disabilities." 6
Title I of the ADA protects
employees who could perform their duties with reasonable accommodation from
disability-based discrimination.17 Title II of the ADA prohibits discrimination against

fired as a result of her disability. Id. Her Rehabilitation Act claim was dismissed as well for her
failure to prove she had been fired because of her disability. Id.
12 Id

13 Id. at 624. The judge stated clearly that Brumfield took no steps to avoid claim preclusion

during her previous suit. Brumfield v. City of Chicago, No. 11-C5371, 2011 U.S. Dist. LEXIS
133904, at *1, *7 (N.D. Ill. Nov. 21, 2011). Since Brumfield's appellate briefing did not challenge
the previous res judicata ruling she waived that issue. Brumfield, 735 F.3d at 625.
14 Brumfield, 735 F.3d at 622. The court could not avoid the issue of setting a circuit precedent on
the Title II issue due to Brumfield's failure to plead a Title I claim and the ensuing claim
preclusion issue. Id. at 625. The dismissal of her Section 504 claim was also affirmed because
she essentially admitted that she was fired because of her conduct and not as a result of her
disability. Id. at 630. Her faked injury and other incidents of misconduct were stated in her
pleadings. See supra note 6 (discussing Brumfield's misconduct).
15 Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §5 12101-12213 (2012). See also

Michael Waterstone, The Untold Story of the Rest of the Americans nith DisabilitiesAct, 58 VAND. L.
REV. 1807, 1808-09 (2005).
The Americans with Disabilities Act ("ADA") can be described as the All Star team of civil rights
legislation. The framers of the ADA sought to create sweeping change in nearly every facet of
the lives of people with disabilities. To achieve these ambitious goals, the framers assembled the
best and brightest parts of other civil rights legislation: pieces of Title VII of the Civil Rights Act
of 1964, Section 504 of the Rehabilitation Act of 1973, Title II of the Civil Rights Act of 1964,
and the Fair Housing Act. The end result was a comprehensive statute with three major parts:
Tide I, dealing with employment, Tide II, dealing with public services ....
Id.
16 42 U.S.C. § 12101 (2012). Congress wanted to remedy the historical tendency of society to
"isolate and segregate individuals with disabilities . . ." Id. Congress specifically mentioned issues
regarding access to "employment, housing, public accommodations, education, transportation,
communication, recreation, institutionalization, health services [and] voting . . .." Id. See also
Brettler v. Purdue Univ., 408 F. Supp. 2d 640, 650 (N.D. Ind. 2006) (bringing action as former
graduate student asserting denial of rights to reasonable accommodation). "[T]he ADA is the
appropriate statutory vehicle for asserting a claim of discrimination due to a person's disability."
Id.
17 See 42 U.S.C. § 12112(a). An employer cannot discriminate against a qualified individual on the
522 JOURNAL OF HEALTH & BIOMEDICAL LAW [VOL. X NO. 3

qualified disabled individuals relating to participation in or benefits from public services,

programs, or activities.' 8

While Title I clearly deals with employment discrimination, a circuit split exists
among federal courts regarding whether Title 11 could also apply to employment
discrimination claims as well.' 9 Two circuits have held that Title I is the only remedy for

basis of disability in the "terms, conditions, and privileges of employment." Id. See 42 U.S.C. §
12111. The term "reasonable accommodation" may include making existing facilities readily
accessible to individuals with disabilities and appropriate adjustment of those individuals' duties.
See also William H. Danne, Who is "Quakfied Individual" Under Americans With Disabilities Act
Provisions Defining and Extending Protection Against Employment Discriminationto Quakfied Individualwith
Disability, 146 A.L.R. FiD. 1 (1998). The definition of employee is "a person who works for
another in return for financial or other compensation." Id See generally, Charles J. Muhl, What is
an Employee? The Answer Depends on the FederalLaw, MONTHLY LAB. REV.Jan. 2002 at 3, 5, available
at http://www.bls.gov/opub/mlr/2002/01/art1full.pdf (discussing how federal law defines the
word employee) (last visited Oct. 25, 2014).
18 42 U.S.C. § 12132. "Subject to the provisions of this subchapter, no qualified individual 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." Id. See also Ann K. Wooster, When are Public Entities Required to
Provide Services, Programs, or Activities to Disabled Individuals Under Americans with DisabilitiesAct, 160
A.L.R. FED. 637 (2000). Covered entities have to make reasonable accommodations to qualified
individuals so that they can receive equal access to services. Tsombanidis v. West Haven Fire
Dep't, 352 F.3d 565, 573 (2d Cir. 2003). In order to prove a Title II claim, a party must prove
"(1) that he is a "qualified individual" with a disability; (2) that he was excluded from
participation in a public entity's services, programs or activities or was otherwise discriminated
against by a public entity; and (3) that such exclusion or discrimination was due to his disability."
Hargrave v. Vermont, 340 F.3d 27, 34-35 (2d Cir. 2003). A qualified individual is one who "with
or without reasonable modifications 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." United States v. Georgia, 546 U.S. 151, 153-54 (2006)
(quoting 42 U.S.C. § 12131(2)). Title II only applies to state agencies. 42 U.S.C. § 12132. See also
PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001).
19 See Staats v. Cnty. of Sawyer, 220 F.3d 511, 519 (7th Cir. 2000) (noting circuits split and stating
issue is open question in 7th Circuit). The Supreme Court has noted the issue, but has not
directly addressed it. See Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 360 (2001)
(holding that Eleventh Amendment bars Alabama state employees from recovery under Title II).
Circuits are either split or purposefully decline to rule on the issue. See Heather S. Dixon,
Remedying State "Double Discrimination": The Argument ForAbrogation of Eleventh Amendment Immunity
For Gender-Related, Disability-BasedEmployment Discrimination Claims Brought Against State Employers
UnderPart II of the ADA, 32 WOMEN'S RTS L. REP. 143, 144 (Winter/Spring 2011). See also Olson
v. New York, 315 F. App'x 361, 364 (2d Cir. 2009) (declining to reach Title II employment
argument); Currie v. Grp. Ins. Comm'n, 290 F.3d 1, 6-7, 13 (1st Cir. 2002) (failing to determine
whether Tide II of ADA covers employment discrimination claims); McKibben v. Hamilton
Cnty., No. 99-3360, 2000 U.S. App. LEXIS 12123, at *11-13 (6th Cir. May 30, 2000) (stating "we
decline to tackle this issue here and will consider this claim on the merits").
2015] JOURNAL OF HEALTH & BIOMEDICAL LAW 523

employment discrimination, while another has held that Title 11 is applicable. 20 A

regulation promulgated by the United States Attorney General has added to the
confusion by declaring that Tide II does apply to disability discrimination. 21 The
temptation to sue for employment claims under Tide II often arises because the
Supreme Court held that the Eleventh Amendment prevents employees from claims
against states under Tide I.22 Since the language of Tide I comprehensively discusses
employment issues while Title II does not, an argument in favor of Title II employment
relief seems counterintuitive. 23 Some courts have noted the lack of reference to

20 See Elwell v. Okla. Ex rel. Bd. of Regents of the Univ. of Okla., 693 F.3d 1303 (10th Cir. 2012)
(holding Tide II does not apply to employment claims); Zimmerman v. Oregon Dep't of Justice,
170 F.3d 1169 (9th Cir. 1999) (holding Tide II does not apply to employment claims); Bledsoe v.
Palm Beach Cnty. Soil & Water Conservation Dist., 133 F.3d 816 (11th Cir. 1998) (ruling in favor
of Title II relief).
2
21 See 28 C.F.R. § 35.140 (a)(201 ). "No qualified individual with a disability shall, on the basis of
disability, be subjected to discrimination in employment under any service, program, or activity
conducted by a public entity." Id. (emphasis added). See also Heather R. McDonald, Garrett
Under Title II of the Americans inth Disabilities Act: Its Broad Implications to Civil Rights Laws, 52
DEPAUL L. REV. 993, 1003 (2003) (parsing language of regulation). Furthermore, the Senate
unanimously consented to have this interpretation printed in the Congressional Record of the
Board of Directors as a compliance regulation. Id. See also 143 Cong. Rec. S30-31 (January 7,
1997); Bledsoe v. Palm Beach Cnty. Soil & Water Conservation Dist., 133 F.3d 816, 822 (11th
Cir. Fla. 1998) (describing history of Department of justice regulation and approval in
Congressional Record); Florida Nat'l Guard v. Fed. Labor Relations Auth., 699 F.2d 1082, 1087
(11th Cit. 1983). "Congress is deemed to know the executive and judicial gloss given to certain
language and thus adopts the existing interpretation unless it affirmatively acts to change the
meaning." Id.
22 See Dixon, supra note 19, at 147-52; U.S. CONST. amend. XI. "The Judicial power of the United
States shall not be construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens or Subjects of any
Foreign State." Id. See Garrett, 531 U.S. at 372-74. The Supreme Court held that Congress
lacked the power to abrogate state immunity under Title I. Id. This is not necessarily the case
under Title II. Id. at 360-61. See also United States v. Georgia, 546 U.S. 151, 159 (2006) (holding
that Title II immunity issues are determined individually based on each case); Waterstone, supra
note 15, at 1810 (demonstrating Title II cases ruled in favor of plaintiffs more often than Title I
cases); Brzonkala v. Va. Polytechnic Inst. & State Univ., 169 F.3d 820, 849 (1999) (describing
serious nature of judicial activism claims); CARY LACHEEN, USING TITLE II OF THE AMERICANS
WITH DISABILITIES ACT ON BEHALF OF CLIENTS IN TANF PROGRAMS ch. 4 (2011), available at
http://nclej.org/ada-manual/ada-manual.pdf (last visited Oct. 25, 2014) (explaining counties
and municipalities not protected from suit under Eleventh Amendment); Americans With
DisabilitiesAct: Sixteen Years later, 109th Cong. (2006), available at http://commdocs.house.gov/
committees/judiciary/hju29870.000/hju29870 Of.htm (last visited Oct. 25, 2014); Steny H.
Hoyer, Hoyer: Aggressive Action Needed to Restore the Intent of the Americans with DisabilitiesAct, THE
DEMOCRATIC WHIP, Oct. 21, 2004, available at http://www.democraticwhip.gov/content/hoyer-
aggressive-action-needed-restore-intent-americans-disabilities-act (last visited Oct. 25, 2014)
(describing tension between Title II expansion relief supporters and unsympathetic courts when
law is narrowly interpreted).
23 See RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065, 2070-71 (2012)
524 JOURNAL OF HEALTH & BIOMEDICAL LAW [VOL. X NO. 3

employment in any other part of the ADA and argue that employment simply cannot
relate to Tide II without stretching the boundary of the law beyond its clear intent. 24

Opponents of Tide II relief state that the administrative remedies found

exclusively in Tide I were meant to create a screening mechanism for frivolous
employment discrimination claims. 25 Supporters of Title II relief counter with the claim
that since Tide II was an extension of the Rehabilitation Act, which allowed for
employment discrimination claims, then Tide II allows for employment claims as well.26

(declaring when Congress creates comprehensive schemes, scheme will prevail over other general
interpretations); Russello v. United States, 464 U.S. 16, 23 (1983) (declaring omission of language
in one act but not another is intentional). "It is a fundamental canon of statutory construction
that the words of a statute must be read in their context and with a view to their place in the
overall statutory scheme." Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644,
666 (2007). Furthermore, the qualified individual standard differs between Titles. David
Ricksecker, New Obstacles in the Ability of State Employees to Sue Their State Employers Under the
Ameicans with DisabilitiesAct, 85 IOWA L. REV. 1835, 1840-842 (2000). Title I refers to a qualified
individual's ability to perform the essential functions of their job. Id. Title II's qualified
individual is determined based on eligibility for services. Id. This further highlights the obvious
difference in intent between Title I's construction and Tide II's construction. Id
24 See Zimmerman v. Oregon Dep't of Justice, 170 F.3d 1169, 1174 (9th Cit. Or. 1999)

(concluding that Title I's wording precludes Tide II from being applicable to employment);
Christopher G. Murrer, A Callfor Unform Application of the Americans with DisabilitiesAct: Does Title
II Support a Claimfor Emplojment Discrimination?, 47 DUQ. L. REV. 115, 125 (2009) (stating that
considering public services to include employment would be a stretch). See also N. Haven Bd. of
Educ. v. Bell, 456 U.S. 512, 530 (1982). "[A]lthough two statutes may be similar in language and
objective, we must not fail to give effect to the differences between them." Id.
25 See Cabrelle Abel, To Allow to Sue, or Not to Allow to Sue: Zimmerman v. Oregon Department offustice

Decides Title II of the Americans with DisabilitiesAct Does Not Apply to Employment Discrimination,24
SEATrLE U. L. REV. 969, 982 (2001) (describing dangers associated with bypassing screening
mechanisms). A complaint is frivolous if it lacks basis in law or in fact. Schutts v. Bently Nev.
Corp., 966 F. Supp. 1549, 1557 (D. Nev. 1997). "The administrative charge process is designed
to provide a relatively inexpensive and quick means of resolving disputes between workers and
employers. It is very easy for an employee who suspects discrimination to file a charge, even the
employee who lacks hard evidence to support the claim...." Ruth Colker, Facing The Challenges of
the ADA: The First Ten Years and Beyond: Winning and Losing Under the Americans with DisabilitiesAct,
62 OHIO ST. L.J. 239, 257 (2001). "Exhaustion requirements are enacted to promote efficiency
and judicial economy in an already overcrowded judicial system." Abel, supra note 25, at 982.
26 Ethridge v. Alabama, 847 F. Supp. 903, 905-07 (M.D. Ala. 1993); Bledsoe, 133 F.3d at 823,
citing
Ethridge, 847 F. Supp. at 906. "The court noted that the primary purpose of Title II was to
extend the reach of Section 504 of the Rehabilitation Act and that Section 504 'clearly applies to
employment discrimination."' Id See also Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522,
1529 (11th Cir. 1997). One court went so far as to claim Title II was a "new replacement" for
the Rehabilitation Act. Id. Deborah Leuchovius, ADA Q &A: The RehabilitationAct And ADA
Connection, PACER CENTER, (2014), http://www.pacer.org/publications/adaqa/adaqa.asp (last
visited Oct. 25, 2014).
The Rehabilitation Act as amended prohibits discrimination in employment in three areas: 1)
Section 501 prohibits federal executive branch agencies such as the U.S. Postal Service from
2015]1 JOURNAL OF HEALTH & BIOMEDICAL LAW 525

If Title II employment claims are permitted, then more individuals are eligible to bring
claims and the congressionally mandated screening mechanism for baseless claims could
27
be rendered effectively useless. The Attorney General's support of Title II
employment discrimination has resulted in the need for courts to perform a Chevron
28
analysis when deciding these Title II claims. A Chevron analysis for a Tide II
employment claim requires first determining whether Tide II's wording is ambiguous
regarding employment discrimination and if it is, then determining whether the Attorney
General's interpretation was arbitrary or contrary to the purpose of the ADA.29 Most
circuits, having reviewed the issue under this standard, have ruled that Congress
unambiguously intended for public employment claims to be adjudicated under Title I
not Title 11.30

discriminating against qualified individuals with disabilities. It also requires these agencies to take
affirmative action in the hiring, placing and advancing of individuals with disabilities. 2) Section
503 requires contractors who have contracts with the federal government for $10,000 or more
annually to take affirmative action to employ and to advance in employment qualified individuals
with disabilities. 3) Section 504 prohibits recipients of federal financial assistance from
discriminating against qualified individuals with disabilities in employment as well as in their other
programs and activities.
Id.
27 Abel, supra note 25, at 982 (discussing consequences of allowing Title II claims); EEOC v.
Harris-Chernin, Inc., 10 F.3d 1286, 1288 n.3 (7th Cir. 1993) (citing 42 U.S.C. §§ 2000e-(5)(b), (e)
& (f) (1964)). See also Innovative Health Sys. v. City of White Plains, 117 F.3d 37 (2d Cir. N.Y.
1997). "By suing under Title II, public employees, unlike all other employees, are not required to
obtain a right to sue letter from the EEOC." Abel, supra note 25, at 972. An employment
disability claim could also apply to governmental entities with less than 15 employees (although
Title I specifically restricts this) if Title II is allowed to apply to employment claims. Ricksecker,
supra note 23, at 1840.
28 Abel, supra note 25, at 980-83. A Chevron analysis is used to review an agency's interpretation of
a statute. Id. See also Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-
43 (1984). In Chevron, an EPA regulation was challenged which required certain states to follow a
stringent permit program for certain sources of pollution. Id. at 839. The Supreme Court upheld
the EPA regulation because the enabling statute did not specifically address the particular type of
pollution source; additionally, the EPA had made a reasonable policy choice based on their
statutory authority. Id at 862-65. See also Chevron Doctrine, CENTER FOR EFFECTIVE
GOVERNMENT (2014), http://www.foreffectivegov.org/node/2624 (last visited Oct. 25, 2014).
Chevron established the rules for judicial review of administrative interpretations of statutes. Id.
Since an administrative agency's authority is derived through a statute, the analysis of their
statutory authority is needed to determining if an agency's regulation is lawful. Id. The first
question to be asked is whether Congress's intent is clear. Chevron, 467 U.S. at 843. If it is not
then the second step is to determine whether the administration's interpretation is arbitrary,
capricious, or contrary to the purpose of the statute. Id. at 844.
29 See Bledsoe, 133 F.3d at 822-23; Zimmerman, 170 F.3d at 1172-73; Abel, supra note 25, at 981
(describing how first step of Chevron analysis should be performed); supra note 28 (describing
Chevron analysis generally).
30 Abel, supra note 25, at 981 (stating that few cases that rule in favor of Tide II relief perform
Chevron analysis). See Patterson v. Illinois Dept. of Corr. 35 F. Supp. 2d 1103, 1109-10 (C.D. Ill.
526 JOURNAL OF HEALTH & BIOMEDICAL LAW [VOL. X NO. 3

In Brumfield v. City of Chicago, the court contemplated whether Title 11 applies to

employment discrimination claims. 31 The Court of Appeals affirmed the district court's
judgment that Brumfield was not entitled to relief, but rejected the district court's
reasoning that Title II grants employment relief. 32 The court's analysis focused heavily
on the issue of whether the Attorney General's stance on Tide II eligibility was subject
to Chevron deference. 33 The court split Title II's wording into two separate clauses for
analysis in order to determine if the Attorney General's interpretation should be
ignored. 34 Under this method of analysis the first clause was quickly ruled out from
being employment-related because the right to benefit from public programs has never
been linked to the concept of employment by any circuit.35 The second clause was also
held to be unambiguous when the court compared the definitions of eligible individuals
between the two sections and determined that Title II's standard that an individual be
qualified to receive a certain public service was not applicable within the context of
determining whether a person was discriminated against in regards to public
employment. 36

1999) (giving many reasons why Congress did not intend Title II to encompass employment). See
also Decker v. Univ. of Houston, 970 F. Supp. 575, 579 (S.D. Tex. 1997). "It is unambiguous
that Congress intended that public employees be required to file a charge of discrimination
before bringing an ADA suit." Id. However, the court in Bledsoe ruled that the Attorney
General's interpretation was valid. Bledsoe, 133 F.3d at 822-23. Bledsoe incorrectly performed this
analysis by skipping the first step and immediately applying the second step. Abel, supra note 25,
at 981.
31 Brumfield, 735 F.3d at 624.
32 Id. at 630.

3 See id. at 625-30.

34 Id. at 626. This method of Title II analysis has been used previously. See Elwell, 693 F.3d at
1306; Zimmerman, 170 F.3d at 1174. See also Abel, supra note 25, at 974-75 (describing how courts
have split Title II's language into two separate clauses).
3s Brumfield, 735 F.3d at 626. See Elwell, 693 F.3d at 1306. "[C]an 'employment' be described

fairly as a 'service, program, or activity'... We think not." Id. Even Bledsoe, which was pro-Title
II, conceded this fact. Bledsoe, 133 F.3d at 821. Bledsoe's awkward analysis involved splitting the
clause into two parts, which ignored the crucial first clause, and purposefully reading the rest of
the statute out of context in order to fit its conclusion. See id. at 821-22.
36 Brumfield, 735 F.3d at 627-28. The clause states "be subjected to discrimination by any such

entity." Id. at 625. The second clause, when separated from the rest of the statute, seems to be
broader when it mentions those who are "subjected to discrimination by a public entity." See id.
at 626. However, the court reasoned that this clause is not broad when an analysis of Title II's
qualified individuals standard is performed. Id.at 627. A qualified individual with a disability
under Title II "meets the essential eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public entity." 42 U.S.C. § 12131(2) (2006).
Zimmermian, 170 F.3d at 1176. Employment does not consist of receiving services or participation
in the "outputs" of public programs. Id. See Brumfield, 735 F.3d at 628. The court reasoned that
since the only people eligible for Title II are mere receivers of services, then employment claims
are clearly not applicable. Id.
2015] JOURNAL OF HEALTH & BIOMEDICAL LAW 527

The court examined the language of Title I and critiqued the Eleventh Circuit's
pro-Title II holding in Bledsoe. 37 The court reasoned that Title I's language specifically
mentioned employment and decided that Title I's construction "covers the waterfront of
employment-related claims." 38

The court reasoned that there is ample evidence to suggest Title I is the sole
avenue to pursue employment-related discrimination claims since Tide I has a complex
employment regulatory scheme created within it.39 The court deemed the Eleventh
Circuit's analysis of Bledsoe insufficient. 0 The court justified this criticism by showing
how Bledsoe had failed to analyze the differing standards for eligible individuals under
both Tides. 41 The court reasoned that Title II cannot grant employment relief due to
the unambiguous wording of the ADA and the failure of the Attorney General's
contrary interpretation to withstand proper Chevron analysis. 42

The Seventh Circuit's decision to deny relief for employment-based claims

under Tide II properly interpreted the ADA.43 The language throughout the ADA
combined with previous decisions regarding services and programs supports the Seventh
Circuit.44 No court has ever held that the benefits of programs, services, or public
activities relate to public employment. 45 This seems obvious after one considers that
employment is not generally deemed to relate to the outputs of public services,
programs, or activities. 46 As the Ninth Circuit itself noted, "[o]btaining or retaining a

3 Brumfield, 735 F.3d at 629-30.

38 Id. at 628.
39 Id. at 629. The court cited RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct.
2065, 2070-71 (declaring when Congress creates comprehensive schemes, scheme will rule over
other general interpretations).
40 Brumfield, 735 F.3d at 629. The court further explained this opinion noting that the Eleventh
Circuit's decision had been swayed by its own binding precedent while one of the concurring
justices only agreed "with reluctance." Id. at 629-30.
41 See supra note 36 (describing how proper Chevron analysis is performed under these

circumstances).
42 See Brumfield, 735 F.3d at 627-30 (summarizing reasoning for holding).
43 See sHi)ra note 1 (stating nature of law).
44 See Brumfield, 735 F.3d at 628; FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132-
133 (2000) (quoting Davis v. Michigan Dep't of Treasury, 489 U.S. 803, 809 (1989). "It is a
'fundamental canon of statutory construction that the words of a statute must be read in their
context and with a view to their place in the overall statutory scheme."' Id.
45 See supra note 35 and accompanying text (stating that employment is not considered public
service by legal precedent).
46 Brumfield, 735 F.3d at 626. An employee is defined as "a person who works for another in
return for financial or other compensation." Charles J. Muhl, What is an Employee? The Answer
Depends on Federal Law, MONTHLY LAB. REV., Jan. 1, 2002, at 3, available at
http://www.bls.gov/opub/mir/2002/01/artfull.pdf (last visited Oct. 25, 2014). Black's Law
528 JOURNAL OF HEALTH & BIOMEDICAL LAW [VOL. X NO. 3

job is not 'the receipt of services,' nor is employment a 'program or activity provided by
a public entity."' 47

The arguments in favor of Title 1I employment relief are not persuasive enough
to cast doubt on the Seventh Circuit's decision.48 The Eleventh Circuit came to a
favorable Tide II conclusion in Bledsoe based on a faulty Chevron analysis and misguided
dicta from earlier decisions within its own circuit. 49 Other circuits are not bound by this
faulty precedent which helps explain why the Eleventh Circuit is the only circuit
favoring Title II employment relief.5 0 Supporters of Title 11 relief also unconvincingly
argue that since the Rehabilitation Act helped inspire the construction of Tide II, the
5
ADA must also be employment-claim-friendly. 1 However, this argument falters
because Congress expressly linked the employment provisions of the Rehabilitation Act to
Title I and not Title 11.52 While some proponents of expanding ADA relief accuse
unsympathetic courts of judicial activism against the disabled, the true judicial activism
would be to ignore the plain language of the law, create a redundant mechanism for
53
employment relief, and allow unintended individuals to seek damages.

Dictionary defines an employee as one who "... in the service of another under any contract of
hire, express or implied, written or oral, where the employer has the power or right to control
and direct the employee in the material details of how the work is to be performed." Id.
47 Zimmerman, 170 F.3d at 1176.
48 See infra notes 49-53 and accompanying text (refuting arguments in favor of Title II relief).
49 See Brumfield, 735 F.3d at 627-29. See also Abel, supra note 25, at 981 (stating that Bledsoe Court
skipped crucial first step in Chevron analysis); Bledsoe v. Palm Beach Cnty. Soil & Water
Conservation Dist. 133 F.3d 816, 825 (11th Cir. 1998) (Hill, J., concurring). The concurring
justice stated "with a tip of the hat" to the district court judge whose contrary opinion was
overruled that the Ninth Circuit's precedent was too strong to overcome on this issue. Id.
50 See Brumfield, 735 F.3d at 630. The Eleventh Circuit is the only circuit to have ruled this way.
Id. at 622.
s1 See supra note 26 (stating arguments of similarities to Rehabilitation Act prove Title II applies
to employment); Zimmerman, 170 F.3d at 1180-83. The Ninth Circuit in Zimmerman cited four
reasons why the Rehabilitation Act was not fully incorporated into Tide II. Id See also
McDonald, supra note 21, at 1008. First, "the wording under the Rehabilitation Act, 'under any
program or activity receiving Federal financial assistance,' is more broad than Tide II's phrase
'services, programs, or activities of a public entity."' Id. at 1008 & n. 127. Second, the rest of the
rehabilitation act addresses employment explicitly while Title II does not. Id. "Third, unlike the
Rehabilitation Act, Congress explicitly addressed employment elsewhere in the ADA-through
Title I-thus incorporating employment into Title II would be redundant." Id. Finally, Congress
expressly linked the employment provisions of the Rehabilitation Act to Title I and not Title II.
Id.
52 See 29 U.S.C. § 794(d) (1994). "The standards used to determine whether this section has been

violated in a complaint alleging employment discrimination under this section shall be the
standards applied under [Tlitle I ... and the provisions of sections 501 through 504, and 510, of
the Americans with Disabilities Act of 1990...." Id. See also McDonald, supra note 21, at 1008
(explaining that Rehabilitation Act is not incorporated into Title IT).
53 See Bledsoe, 133 F.3d at 825 (Hill, J., concurring) (fearing court is legislating law instead of
2015] JOURNAL OF HEALTH & BIOMEDICAL LAW 529

Though all may not agree with the Seventh Circuit's decision, it does join the
majority of districts who have ruled on the issue. 54 Even ardent supporters of the ADA
must concede the obvious difference in wording between Tides I and II.5
Nevertheless, many still refuse to accept the majority opinion and believe that the ADA
has been read too restrictively. 56 Opponents of a strict interpretation of Tide II often
point out the difficulties employees have in successfully suing under Tide I.57 Allowing
Tide II to supplement Tide I would allow small government entities to sue for
discrimination, circumvent Title I restrictions, and give a plaintiff a statistically proven
higher success rate.58 While attempting to achieve more justice for disabled individuals
is a noble pursuit, there is no excuse for blatantly disregarding the carefully constructed
59
screening mechanisms presented in Tide I and bending the law beyond recognition.

In Brumfield v. City of Chicago, the court considered whether Tide 11 relief may be
granted for employment-related disability claims. 60 The court ruled that these claims can

interpreting). Hill later expounded on the activist judge theme when he mused "[i]f a constituent
is angered by the district judge's interpretation or our holding today, his or her Congressperson
can say 'That's not what we passed. I would never have voted for that! That's just the work of
those activist judges."' Id. "[I]t is a grave judicial act to nullify a product of the democratic
process." Brzonkala v. Va. Polytechnic Inst. & State Univ., 169 F.3d 820, 889 (1999) (Wilkinson,
C.J., concurring). See Zimmerman, 170 F.3d at 1177-78 (stating statutes should not be interpreted
in way that creates redundant sections). See supra notes 23-24 (parsing language of both sections).
See Ricksecker, supra note 23, at 1840 (discussing state employees specifically excluded under Title
I now becoming eligible under Title II). See also Disability Rights Advocates Blast Pyor Vote, JUDGE
DAVID L. BAZELON CTR. FOR MENTAL HEALTH LAW (May 12, 2005),
http://www.bazelon.org/LinkClick.aspx?fileticket=o00zFKFwGDQ/ 3D&tabid=328 (last
visited Oct. 25, 2014) (emphasizing disappointment in the advancement of William Pryor's
nomination to the U.S. Court of Appeals). Disability Rights advocates vigorously protested the
appointment of a lawyer who had successfully argued Garrett. Id. The lawyer was accused of
judicial activism against the disabled. Id. Garrett blocked state employees from suing the
government for employment discrimination under Tide I. Bd. of Trs. of the Univ. of Ala. v.
Garrett, 531 U.S. 356, 360 (2001).
54 See supra note 20 (stating how other circuits have ruled).
ss See Franklin L. Ferguson, Jr., Preserving Prometheus' Gfrt: Title II of the Americans With Disabilities
Act Impose Affirmative, Ani-Discrimination Oblgations Upon Municapalities, Providing a Seemingy
Unwelcome Model for the Enforcement of TraditionalCivil Rights Legislation, 18 NAT'L BLACK L.J. 100,
154-56 (2004) (describing poor reasoning from pro-Title II Bledsoe decision). See Ricksecker, supra
note 23, at 1840-42 (describing difference in qualified individual standards between Titles).
16 See supra note 22 and accompanying text (describing attitudes towards supporting Title II
relief).
57 See supra note 23 and accompanying text (describing legal and practical difficulties seeking Title
I relief).
58 Waterstone, supra note 15, at 1810 (describing desirability of Title II relief option).
s9 See supra note 25 (describing reasoning behind statute's intentional limitations for relief).
60 Brumfield, 735 F.3d at 662.
530 JOURNAL OF HEALTH & BIOMEDICAL LAW [VOL. X NO. 3

only be brought under Title 1.61 The court properly analyzed the wording and legislative
history of the law and refused to expand the mandate of Title II beyond its intended
scope. 62 The Seventh Circuit's decision to join the Ninth and Tenth Circuits will ideally
set a precedent against wrongful use of the law and encourage aggrieved persons to file
correctly under Title I.63

61 Id.
62See supra notes 44-53 (arguing in support of Brumfield decision).
63See Brumfield, 735 F.3d at 630. If Brumfield had filed correctly under Title I, she could have
potentially survived summary judgment and had her case heard. See id. at 623-24.