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Jason Powers, Employment Discrimination Claims under ADA Title II: The Case for
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uniform administrative exhaustion requirements, 76(6) Tex. L. Rev. 1457 (1997-1998).
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Notes
Employment Discrimination Claims Under ADA

Title II: The Case for Uniform Administrative
Exhaustion Requirementst
Two old business-school buddies, one an accountant, the other a

county tax assessor, meet to have lunch and reminisce about good times.
But conversation quickly turns to a mutual problem. The tax assessor,
almost a year ago, fired an employee whose abusive behavior was harming
office morale; shortly thereafter, the same employee took a temporary job
at the accountant's office, and was fired within a month for the same
reason. A few weeks ago, both the tax assessor and accountant were
served with papers. The unruly employee sued both employers on grounds
that they had discriminated against him on the basis of a
disability-namely, a behavior-altering psychological disorder that the
employee claims could be adequately controlled with medication. The
accountant tells his friend that the case will be dispensed with rapidly.
Because the plaintiff-employee had waited several months before making
any claim, he had missed the vital ninety-day limitation period during
which the law required him to file a complaint with the Equal Employment
Opportunity Commission (EEOC). Having failed to seek and exhaust
administrative remedies against the accountant, the employee has lost any
cause of action. The tax assessor immediately calls the county attorney to
describe this strategy. But unfortunately, the tax assessor will find no
relief from the EEOC filing requirement. Why? An obscure loophole in
America's flagship disability law makes it possible. Though the explicit
statutory language seems to require that employment discrimination victims
exhaust their administrative remedies before turning to the courts, nearly
every federal district judge and the only circuit court panel to consider the
matter have given public employees an exemption from the administrative
exhaustion requirement.
t The author extends his gratitude to the Honorable Marcia A. Crone, U.S. Magistrate Judge for
the Southern District of Texas, and her former clerk, Marilynne Gorham, now of Feldman & Rogers,
L.L.P., for introducing him to the subject matter. The author also thanks Thomas Paxton for his
assistance in the editorial process.
1458 Texas Law Review [Vol. 76:1457
Congress, perhaps intimidated by the daunting task of constructing

broad federal protection for the rights of disabled citizens, built the
Americans with Disabilities Act (ADA)' atop prior civil rights legislation
with which they were more familiar. To handle disabled individuals'
employment discrimination claims, Congress turned to the structure they
erected for minorities in Title VII of the Civil Rights Act of 1964 (CRA).2
To cover discrimination in the provision of public services, Congress
looked to the architecture of the Rehabilitation Act of 1973, 3 which had
itself been fashioned from Title VI of the CRA. 4 Offering the disabled
shelter in these structures would have made perfect sense to Congress: it
would mainstream the claims of victims of discrimination by nudging them
into older enforcement niches that matched the new exigencies. Although
built and ultimately controlled by Congress, these shelters were managed
for years by federal agencies and federal courts, whose interpretations and
methods would necessarily seek room in Congress's new plan. One could
hardly expect that the separate statutes Congress incorporated and the
enforcement regimes they spawned would come together seamlessly. This
Note concerns one of the inevitable seams: What happens when a claim fits
under more than one of the older enforcement schemes? Specifically,
should employees of state and local governments be exempt from the
administrative exhaustion requirements that the ADA imposes on employ-
ment discrimination plaintiffs in the private sector?
To answer that, we should begin by tracing how the inconsistency
arose in the first place. The ADA was constructed in modules that were
based on prior legislation. The relevant modules-or titles-here are the
Employment Discrimination Title (Title I) and the Public Services Title
(Title II). ADA Title I adopts the procedures and remedies of CRA Title
VII-which provides minority and female employees protection against
workplace discrimination. Congress wrote ADA Title I so that it included
all employers of a certain size, whether public or private, probably so that
most employment relationships would be subject to the same regulations.5
1. Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213 (1994).

2. Civil Rights Act of 1964, Title VII, §§ 701-718,42 U.S.C. §§ 2000e to 2000e-17 (1994).
3. Rehabilitation Act of 1973, 29 U.S.C. §§ 701-797b (1994).
4. Title VI, §§ 601-606, 42 U.S.C. §§ 2000d to 2000d-4a.
5. The only exceptions to the term "employer" under Title I of the ADA are (1) the United States
and its wholly-owned corporations and (2) Indian tribes, or tax-exempt private membership clubs. See
42 U.S.C. § 12111(5)(B). Department of Justice (DOJ) regulations acknowledge that public entities
might be covered under ADA Title I as well as ADA Title II. See 28 C.F.R. § 35.140(b)(1) (1997).
The terms of ADA Tide I are to be given the same meaning as the terms of CRA Tide VII, terms that
have included government entities since 1972. See 42 U.S.C. § 2000e(b) (defining "employer" for
Title VII purposes); 29 C.F.R. pt. 1630 app. § 1630.2(a)-(f) (1997) (stating that "employer" has the
same meaning under the ADA and CRA Title VII); Dothard v. Rawlinson, 433 U.S. 321, 332 n.14
(1977) (opining that the congressional intent of the 1972 amendments to CRA Title VII was that Title
VII would apply to both state and private employers); Keller v. Prince George's County, 827 F.2d 952,
1998] Uniform Administrative Exhaustion Requirements 1459
The CRA's Title VII enforcement scheme begins with an administrative

grievance procedure, in which complaining employees must file with the
EEOC and exhaust their administrative remedies prior to filing suit. ADA
Title I adopts this scheme and its exhaustion requirement.
Prior to the enactment of the ADA, disabled employees of private enti-
ties rarely had any recourse against discrimination; disabled employees of
some state and local government units, however, had found sanctuary in
the Rehabilitation Act of 1973. The Rehabilitation Act prevents discrimi-
nation against the disabled by federally funded governments that provide
public services. The courts over time decided that public employment was
itself a public service, making the Rehabilitation Act an antidiscrimination
statute not only in the provision of welfare checks but also in the hiring
and firing of public employees. ADA Title II, by its language, extends the
Rehabilitation Act to all state and local governments-without regard to the
receipt of federal funds. Therefore, an employee of a sheriffs department
that receives no federal funds was suddenly given new protections by the
ADA. He received employment discrimination protection by the language
of ADA Title I, and he also received employment-as-a-public-service
discrimination protection by the judicial gloss on the statute underlying
ADA Title II.
The problem is that the enforcement procedures for the underlying
statutes do not match: the agency-created mechanisms of CRA Title VII are
different from the judicially created rights under the Rehabilitation Act, so
that public employees eligible to file under either ADA Titles I or II have
different enforcement mechanisms from which to choose. Under Title I an
employee must file a complaint with the EEOC and exhaust his administra-
tive remedies prior to filing suit. A draconian ninety-day limitation period
may stand in his way if he briefly sits on his rights. However, under Title
II he need not file any complaints. Just as a wheelchair-bound citizen
unjustly denied a government benefit may proceed to federal court for vin-
dication of his rights, a public employee may sue his employer without
administrative exhaustion of any kind.
This Note first argues that Congress did not intend to create separate
enforcement schemes for public and private employees, and that the ADA's
955 (4th Cir. 1987) (stating that in 1972 the Equal Employment Opportunity Act extended coverage
of CRA Title VIH to state and local government employers under the same conditions as private
employers); see also DEPARTMENT OF JUSTICE, CIVIL RIGHTS Div., THE AMERICANS WITH
DISABILITIES ACT: TITLE H TECHNICAL ASSISTANCE MANUAL 19 (1993) (confirming that Title I,
enforced by the EEOC, prohibits job discriminationby state and local employers);ADA: Justice Official
Outlines Processfor Resolution of Disability Complaints, 30 Gov't Empl. Rel. Rep. (Warren, Gorham
& Lamont) 1124 (Aug. 17, 1992) (quoting Assistant U.S. Attorney General for Civil Rights John
Dunne as saying that municipal police departments that receive federal funds might be covered by not
only Titles I and II of the ADA but also the Rehabilitation Act).
structure does not require judicial invention of dual schemes. Rather than
establishing parallel coverage, the ADA's two employment protection titles
have a telescoping coverage. ADA Title I names a certain group of
employers (medium-sized to large employers in both the private and public
sector) and forbids them to discriminate against the disabled. ADA Title
II defines an additional group of employers (including small government
units that would not fit under Title I) and applies to them the same
prohibition. Because the Title I enforcement mechanism is available to all
ADA employment claims, the ADA gives all employers the same benefits
that the EEOC grievance process has offered for years-an opportunity for
conciliation and consciousness-raising without expensive litigation. I argue
that judges who extend a separate enforcement procedure to public employ-
ees under ADA Title II provide a right of action neither needed nor pre-
scribed by statute.
Part I of this Note explains the leading case law regarding administra-
tive exhaustion and Title II of the ADA. In Part II, the text of the statute
is examined as it pertains to remedies. This Part will show that the
legislative history is at best inconclusive on the question of whether Title
II creates a private right of action without administrative exhaustion. Part
III considers the regulations promulgated by the Department of Justice
(DOJ) and will show how these regulations fall short of establishing a no-
exhaustion system. Finally, Part IV considers alternative methods of
rectifying the exhaustion policy anomaly before recommending that courts
re-examine the bases under which they grant a private right to employment
claimants under ADA Title II.
I. Introduction
The first and leading case to find that ADA Title II employment claim-
ants do not have to exhaust administrative remedies is Petersen v.
University of Wisconsin Board of Regents,6 a case in which a university
employee sued under the ADA to prevent his imminent dismissal.7 In
Petersen, the plaintiff brought an ADA claim without filing a complaint
with the EEOC.8 Ordinarily, administrative exhaustion would be a condi-
tion precedent to any employment discrimination claim under the ADA.
But the plaintiff in Petersen, unusually, filed a discrimination-in-public-
services claim (Title II) rather than an employment discrimination claim
(Title I). The court initially referred to the DOJ's regulations which
confirmed that the Public Services Title of the ADA prohibited employment
discrimination-just as its predecessor, the Rehabilitation Act, does. In the
6. 818 F. Supp. 1276 (W.D. Wis. 1993).

7. See id.at 1277.
8. See id.
absence of argument, the court found no reason to rule that Title I would
of its own force preclude a Title II employment claim.9 Realizing that the
Rehabilitation Act had never required administrative exhaustion of its
plaintiffs, the court confronted the question of whether a discrimination
claim that would face exhaustion requirements if brought under Title I
could escape them because it might also be brought under Title II.
The defendant argued that the judicial rationale for not requiring
exhaustion in ADA Title II's predecessor acts-CRA Title VI and the
Rehabilitation Act-was that no administrative processes existed under
those acts, a fact clearly inapplicable to the ADA.'" Nevertheless, the
court ruled that the statute was at least ambiguous as to whether Title II's
employment implications would provide an alternative to Title I's adminis-
trative enforcement scheme." Therefore, the court looked to DOJ
regulations regarding exhaustion, which, the court stated, "provide
specifically that ... [Title II] litigants are not required to file with
[federal] agencies" prior to suit." In an appendix to the regulations, the
court found a specific discussion of exhaustion 3 in which the DOJ quotes
legislative history to support its no-exhaustion argument. 4 Based on
these general regulations, the court found that public employees do not
have to satisfy the Title I exhaustion requirement if they file their
employment discrimination claims as Title II public-services claims.
From a legislative perspective, the exhaustion anomaly is undesirable
for a number of reasons. First, the efficiency of the EEOC complaint
process was a selling point of the ADA for those members of Congress that
were nervous about creating a new cause of action for aggrieved
employees. 5 Second, the direct-to-court reading of ADA Title II invites
potentially burdensome litigation on publicly supported government units.
The extra litigation burden-though similar to the burden previously suf-
fered under the Rehabilitation Act-does not even have the saving grace of
being the "strings" attached to federal money because Congress used ADA
Title II to extend the Rehabilitation Act beyond the governments to which
it offered funding. Finally, the disparate treatment of private and
government employees under the law seems to be an arbitrary distinction
between individuals suffering similar wrongs.
9. See id. at 1278.

10. See id. at 1279.
11. See id.
12. Id.
13. See id. at 1279-80.
14. See 28 C.F.R. pt. 35 app. A § 35.140, at 490 (1997) ("Again, consistent with section 504
[of the Rehabilitation Act of 1973], it is not the Committee's intent that persons with disabilities need
to exhaust Federal administrative remedies before exercising their private right of action."). For that
legislative history, see infra note 112 and accompanying text.
15. See infra notes 33-35 and accompanying text.
Worse yet, Petersen'sbest reason for giving ADA Title II claimants

an express ride to the courtroom is a few snippets of legislative history
indicating that some members of Congress (and their committees) figured
Title II plaintiffs should be as free from administrative exhaustion
requirements as plaintiffs were under Title II's predecessor statutes. 6
Notably, Congress did not write that notion into the language of the statute.
If they had, they might have noticed that predecessor plaintiffs had a direct-
to-court right of action for many reasons-a lack of administrative remedies
for individuals, a fear that the administrative process would hurt claimants,
and a knowledge that all defendants under the Act would be supplicants of
the federal government-that simply do not apply to the ADA.
Regardless of the policy reasons that counsel against a distinction
between private and public employees in ADA enforcement, the starting
place for any court deciding how to rule on a claim must be what Congress
wrote into law. The court in Petersen rightly began with the word as it
came from Washington-the language of the Americans with Disabilities
Act itself.
II. The Language of the ADA

The ADA comprises four titles-Employment, Public Services, Public
Accommodations, and Miscellaneous Provisions-designed to bring dis-
abled individuals into mainstream American life. Each title borrows some
of its language and provisions from prior legislation-complicating the
process of determining what remedies are available for individuals suffering
discrimination. The remedy provisions in each title, along with correspon-
ding legislative history, fall short of indicating any congressional intent to
exempt public employees from the traditional employment discrimination
enforcement system of CRA Title VII.
A. Remedies Under ADA Title I-Employment

17
ADA Title I adopts the "powers, remedies and procedures" of
CRA Title VII and extends to the disabled the same protections from dis-
crimination that minorities and women enjoy) Title VII created the
16. See Petersen, 818 F. Supp at 1279.

17. Americans with Disabilities Act of 1990, 42 U.S.C. § 12117(a) (1994).
18. Title I provides:
The powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6,
2000e-8, and 2000e-9 of this title shall be the powers, remedies, and procedures this
subchapter[, Title I,] provides to the [Equal Employment Opportunity] Commission, to
the Attorney General, or to any person alleging discrimination on the basis of disability
in violation of any provision of this chapter[, the entire ADA], or regulations promulgated
under section 12116 of this title[, 29 C.F.R. pt. 1630], concerning employment.
Id. § 12117.
EEOC and assigned it the duty of investigating and resolving charges of

unlawful discrimination by "informal methods of conference, conciliation,
and persuasion." 9 CRA Title VII requires that aggrieved employees
make their charges within 180 days of the unlawful employment practice-
a fairly quick time frame.20 The EEOC may bring civil actions against
those employers with whom it cannot conciliate within thirty days, except
that it cannot sue a government or governmental agency; the EEOC must
refer these cases to the United States Attorney General (AG) for
prosecution.21 Individuals may intervene in any such suit or, if the EEOC
or AG has not filed a suit, file their own suits within ninety days of notice
that there will be no suit.' In any event, plaintiffs must exhaust their
administrative remedies before proceeding to federal court' so that the
EEOC may undertake the administrative investigation and conciliation
efforts that are "central" to the CRA Title VII enforcement process.24
19. Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e-5(b) (1994).
20. See id.§ 2000e-5(e)(1). If the employee lives in a state or locality with its own antidiscrimina-
tion statutes, and she files a charge or institutes proceedings with an agency responsible for enforcement
of that statute, the time frame is extended to the earlier of 300 days from the practice or 30 days after
the end of state or local proceedings. See id.
21. See id.§ 2000e-5(f)(1).
22. See id.In any event, if the EEOC does not file a suit within 180 days of the charge, it must
give notice that no suit has been filed, and the aggrieved employee may proceed to court. Complainants
under this law may receive court-appointed counsel. See id.After a complainant has cooperated with
the EEOC for 180 days, she need not exhaust her administrative remedies further. See, e.g., Wilson
v. Pefia, 79 F.3d 154, 166-67 (D.C. Cir. 1996) (allowing a Coast Guard employee's suit for corrected
back pay because 180 days had elapsed since the filing of the EEOC claim and the agency had not
acted).
23. The exhaustion requirement is not a jurisdictional one. It is merely a condition precedent to
suit-in the manner of a statute of limitations-and is therefore subject to equitable doctrines such as
tolling. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (holding that "filing a
timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal
court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable
tolling"); Million v. Frank, 47 F.3d 385, 389 (10th Cir. 1995) (citing Gonzalez-Aller Balseyro v. GTW
Lenkurt, Inc., 702 F.2d 857, 859 (10th Cir. 1983) (citing Zipes, 455 U.S. at 392-93)); KENNETH CULP
DAVIS & RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 15.2, at 308 (3d ed. 1994)
("The exhaustion doctrine of administrative law is subject to pragmatically based exceptions similar to
the exceptions to the prohibition against appeals of interlocutory orders of trial judges."); MACK A.
PLAYER, EMPLOYMENT DISCRIMINATION LAW § 5.73(c), at 475-77 (student ed. 1988) (explaining how
the time for filing a change of employment discrimination may be tolled). However, the Supreme
Court's ruling to that effect has not prevented several courts from continuing to describe exhaustion
as a jurisdictional requirement. See Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995) (holding that
"the filing of an administrative complaint is ordinarily a jurisdictional prerequisite to a Title VII action"
(citing Ray v. Freeman, 626 F.2d 439, 442 (5th Cir. 1980), cert. denied, 450 U.S. 997 (1981)));
National Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 711 (5th Cir. 1994) ("It is
well-settled that courts have no jurisdiction to consider Title VII claims as to which the aggrieved party
has not exhausted administrative remedies."); Vinieratos v. United States Dep't of Air Force, 939 F.2d
762, 768 n.5, 773 (9th Cir. 1991) (suggesting that statutorily defined conditions precedent constitute
jurisdictional matters, whereas judicially imposed conditions do not).
24. See, e.g., Shannon v. Ford Motor Co., 72 F.3d 678, 684 (8th Cir. 1996) (holding that
compliance with the prerequisite administrative process is necessary to obtain the "green light" to
proceed to district court).
Congress also required that federal judges expedite cases under Title
VII? Remedies available from the courts include injunctions against
unlawful practices, affirmative action, back pay, reinstatement and rehiring
of employees, and attorney's fees. 26
ADA Title I offers the grievance procedures and rights of CRA Title
VII to "any person alleging discrimination" under "any provision of" the
ADA "concerning employment"; one might assume, therefore, from the
language of the statute that any employment claim under the ADA-
whether or not contemplated by Title I itself-should be handled by the
EEOC grievance process.' However, the enforcement section of ADA
Title I does not state that its remedies are exclusive remedies for an
employment claim. 8 The court in Silk v. City of Chicago,29 observing
this language, determined that ADA Titles I and II each provided a set of
nonexclusive remedies from which plaintiffs might choose. The court
ruled that without some indication that Congress intended Title I to be the
exclusive employment discrimination remedy, it would read the statute as
providing separate roads to recovery, each with its own incidents.3 This
is perhaps the most sensible, and certainly the most statutorily sound,
ground for allowing the Title II plaintiff to escape exhaustion. But ADA
Title I, if not clearly exclusive, is at least comprehensive over all
employment claims. Therefore, a two-headed way of handling employment
discrimination ought to be reflected in the legislative intent if it is to be
thought a legitimate interpretation of the Act.
The members of Congress debating the ADA's remedies primarily
focused on the conflict between the House and Senate versions of the bill
rather than discussing any dual-track remedies for employment
discrimination.3 Once the chambers compromised, the floor managers
attempted to impress upon the other legislators that the law would be
business-friendly.32 Testing that friendliness, Senator Bumpers of
25. See Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e-5(f)(5) ("It shall be the duty of
the judge ... to assign the case for hearing at the earliest practicable date and to cause the case to be
in every way expedited.").
26. See id. § 2000e-5(g)(l), -5(k).
27. Americans with Disabilities Act of 1990, 42 U.S.C. § 12117(a) (1994).
28. See id.
29. No. 95 C 0413, 1996 WL 312074 (N.D. Ill. June 7, 1996).
30. See id. at *11-*13 (arguing that Congress could have exempted employment claims from ADA
Title II enforcement if it had wanted to demand EEOC-filing for all employment claims).
31. See FieldHearingon Americans with DisabilitiesAct: HearingBefore the Subcomm. on Select
Education of the House Comm. on Education and Labor, 101st Cong. 70 (1989) [hereinafter Field
Hearing]. The Senate and the White House favored an all-administrative remedy system, while the
House version of the bill included court remedies under 42 U.S.C. § 1981. See id.
32. For example, Senator Tom Harkin of Iowa argued to Senator Boschwitz of Minnesota that
there would be no punitive damages remedy offered by the ADA:
I assure the Senator from Minnesota the whole nature of the compromise that was worked
out with the administration provides that there are no damages in this bill. There was in
Arkansas asked Senator Harkin of Iowa about administrative remedies

under the new act:
...Is it correct to say that one who is aggrieved by failure of
anybody to comply with this act must exhaust, as we lawyers say, his
or her administrative remedies before they proceed to file suit.
Mr. HARKIN. That is affirmative.33
Senator Dole of Kansas, responding to arguments that the ADA would be
a gold mine for the discrimination bar, also used the inclusion of
administrative remedies to allay fears that ADA violations would clog the
courts:
...Punitive damages and immediate access to jury trials are
simply not available under the ADA in it's [sic] revised form.
Furthermore, the only person who can bring suit for civil
penalties and monetary damages under the bill's public
accommodation's [sic] section is the Attorney General. So-as you
can see-lawyers will not be able to build careers out of law suits
against public accommodations brought on a contingency fee
basis....
So those who would suggest that the ADA will unleash a
mountain of litigation, I believe, are simply missing the point.'
The proponents of the ADA argued at length that the government's
experience with the EEOC procedures showed that businesses could adjust
to the new legislative regime. 5
The legislators, however, were also concerned about state and local
governments-the other major set of defendants included in the ADA. On
the initial draft. There is not in here. In the employment section, there is only injunctive
relief and back pay.
135 CONG. REc. 19,855 (1989).
33. Id. at 19,859.
34. Id. at 19,889.
35. The parallels between the ADA's employment coverage and CRA Title VII were repeatedly
emphasized. See 136 CONG. REc. H2438-39 (daily ed. May 17, 1990) (statement of Rep. Edwards)
("Like other civil rights laws, the ADA does not require employers to hire unqualified persons ....
The employment protections use the same enforcement procedures and provide the same remedies as
title VII of the Civil Rights Act of 1964 .... Under the ADA, persons with disabilities will have the
same rights and remedies as minorities and women, no more and no less."); id. at H2613 (daily ed.
May 22, 1990) (statement of Rep. Sensenbrenner) ("Employers and employees have had more than 25
years of experience with the procedures and remedies of title VII .... In enacting title VII and other
employment discrimination statutes, Congress has consistently pursued a policy of encouraging
mediation and conciliation in resolving disputes and in avoiding unnecessary litigation."). When the
House debated the interplay between the ADA and CRA Title VII (which itself was up for amendment),
the representatives lauded the administrative process under Title VII. See id. at H2620 (statement of
Rep. Smith) ("Under title VII with its current remedies, only 6 percent of the charged [sic] filed with
the EEOC end up as lawsuits. The rest are disposed of through title VII's mediation and conciliation
procedures.").
the Senate floor, Senator Harkin affirmed the proposition that municipali-
ties would be covered by Title I, which no doubt unnerved some
legislators.3 6 Still, presumably, local governments could look forward to
the same protections that private employers would under the Act-namely,
a chance to work through the administrative process before being hauled
into court.37 Harkin attempted to calm fears that small businesses and
small municipalities would suffer court harassment by disabled employees:
First of all, . . . if a disabled person brought a case under
employment, it would go through the administrative remedies of
EEOC first .... But he would not, in that kind of situation, be
able to proceed on his own....
[Tjhe employment provisions of title I make available the

...
rights and remedies of title VII of the 1964 Civil Rights Act ....
However, title II of the act, covering public services . . . makes
available the rights and remedies also available under section 505 of
the Rehabilitation Act ....
Second, let me clarify the extent to which administrative
remedies are available. Under title I of the bill, the EEOC is
authorized to investigate complaints of discrimination in
employment.... Under title II of the bill, covering public services,
administrative enforcement is available to the same extent it is
available under section 504 of the Rehabilitation Act.38
A legislator hearing these words from the Senate floor might justifiably
assume that employment discrimination was exclusively the province of
ADA Title I and give no more thought to the remedies associated with the
Rehabilitation Act.39 Or, since here and elsewhere, Harkin downplays the
36. See 135 CONG. REc. 19,849 (1989). Senator Boschwitz, in the middle of a colloquy about
whether part-time employees counted toward the fifteen-employee minimum of Title I, asked Senator
Harkin:
Mr. BOSCHWITZ. I ask whether or not it would apply to townships, municipal
governments, and counties and so forth?
Mr. HARKIN. Yes, it does affect local governments.
Mr. BoscHwITZ. It does [afffect all local governments?
Mr. HARKIN. Yes.
Mr. BOscHwITZ. So even some people who are paid just a few dollars by a local
government are included? This may well include some very small localities?
Id.
37. See 135 CONG. REC. S10,766 (daily ed. Sept. 8, 1989) (statement of Sen. Harkin) ("The
employee would have the right [to take an employer to court]. If the employees feel they were
discriminated against on the basis of their handicap, then they would have the right first to go to
EEOC. They have to exhaust their administrative remedies first. They would go to EEOC and file
a complaint.").
38. 135 CONG. REc. 19,854-55 (1989).
39. Of course, guessing at the legislators' understanding of Harkin's words points out one of the
limitations of reading floor debates and other legislative history. One could argue that Harkin, rather
idea that the Rehabilitation Act encourages much private litigation,' one
might suggest that the legislators would not mind the application of the
Rehabilitation Act to various defendants.
Of course, Harkin's assertion that administrative remedies are avail-
able under the Rehabilitation Act does not help explain the difference
between a private right to sue a federally funded agency and the right to
sue a small, unfunded government entity. An employee with a grievance
against a funded agency draws strength from administrative remedies,
rather than merely suffering delay the way a private employee does.
Administrative oversight of a funded agency involves the drastic remedy
of a threatened cutoff of federal funding. Giving a funded agency's
employees the opportunity to prick the antennae of a federal benefactor
gives them a powerful weapon in settlement negotiations. If the
Rehabilitation Act does not encourage litigation, it is probably because
there are either more attractive or swifter remedies in the statute.
On the other hand, an unfunded government unit-not covered under
the Rehabilitation Act-is not threatened by the administrative oversight
process in the same way. Like a private employer, an unfunded govern-
ment unit prefers administrative remedies to litigation because of the high
costs of litigation. Adding these government units to the coverage of the
Rehabilitation Act is no small matter. The Rehabilitation Act allowed a
direct-to-court remedy that was unlikely to be used because of the admini-
strative threat; with the administrative threat lacking with regard to
unfunded governments, only the litigation threat is a meaningful tool for
potential plaintiffs. By not clarifying the change that a broad expansion in
the Rehabilitation Act (via ADA Title II) would cause, Harkin could have
hindered a clear understanding of the possible litigation ramifications. This
problem applies to all Public Services (ADA Title II) claims, but it works
particular mischief in the employment area. Surely Congress cannot be
said to have willingly ratified a slicked path to court for employee
than showing how different claims proceeded down different enforcement paths, might have been
describing how a single employment claimant could choose from among different enforcement paths.
If that were tre, there is the chance that Harkin (intentionally or unintentionally) misled other legisla-
tors about the bill's enforcement scheme. How a court should decide between the intent of a floor
manager and the intent of other voting legislators-when some intentions are not clearly expressed in
words-is beyond not only the scope of this Note but also the pragmatic deliberateness that hopefully
accompanies statutory interpretation. For a description of the problems of divining Congressional intent
from floor debates and the weight given those debates by the courts, see George A. Costello, Average
Voting Members and Other "Benign Fictions": The Relative Reliability of Committee Reports, Floor
Debates, and Other Sources of Legislative History, 1990 DUKE L.J. 39, 50-57.
40. See Tom Harkin, Preface to BUREAU OF NAT'L AFFAIRS, THE AMERICANS wITH DISABILITIES
ACT: A PRACTICAL AND LEGAL GUIDE TO IMPACT, ENFORCEMENT, AND COMPLIANCE at xii (1990)
(stating that "over 16 years of experience in enforcing sections 503 and 504 [of the Act] have shown
that these standards do not result in undue cost or excessive litigation"). For a discussion of the admin-
istrative remedy system under the Rehabilitation Act, see infra notes 49-53 and accompanying text.
discrimination claims when they dropped the EEOC structure into the mix
for employers of all kinds.
One gets the impression from reading the floor debates that many
members of Congress may have been entirely unaware that ADA Title II
would be read to provide an employment discrimination claim remedy. In
any event, the obviously strong legislative support for the traditional
conciliation techniques of CRA Title VII should make any court wary of
undercutting that enforcement scheme.
B. Remedies Under Title II-Public Services

For ADA Title II's enforcement provisions 4 ' Congress incorporated
Section 505 of the Rehabilitation Act of 1973,42 a law designed to both
provide vocational training and rehabilitation services for the disabled and
bar discrimination by contractors of the federal government or recipients
of federal assistance. That law itself borrows its enforcement provisions
from the CRA.43 For example, the Rehabilitation Act's Section 501
requires federal agencies to maintain an affirmative action program for
disabled individuals. 4 Individuals who wish to challenge the adequacy
of any such program may use the remedies in Section 717 of the CRA-
including civil rights-of-action.45 The relevant section of the
Rehabilitation Act also includes a broader prohibition against discrimination
by recipients of federal assistance (including executive agencies and units
of state and local governments) and invokes CRA Title VI for remedies. 6
Attorney's fees are available for both types of complaints. 47 These
remedies are made available to anyone "excluded from participation in or
• . .denied the benefits of the services, programs, or activities of a public
entity, or ... subjected to discrimination by any such entity. "s
The Rehabilitation Act's plan-of-action mirrored and drew on the
experience of CRA Title VI, the landmark piece of legislation that bars dis-
crimination "under any program or activity receiving Federal financial
assistance." 49 The Rehabilitation Act, like CRA Title VI, targeted federal
beneficiaries by placing conditions on the receipt of federal funds. Under
Title VI, federal departments and agencies that distribute monies must
41. See Americans with Disabilities Act of 1990, 42 U.S.C. § 12133 (1994).
42. Rehabilitation Act of 1973, 29 U.S.C. § 794a (1994).
43. See id.; see also Consolidated Rail Corp. v. Darrone, 465 U.S. 626-27 n.1 (1984) (noting that
the CRA serves as the basis for the enforcement clause in the Rehabilitation Act).
44. See 29 U.S.C. § 791(b).
45. See id. § 794a(a)(1).
46. See id. § 794a(a)(2).
47. See id. § 794a(b).
48. Americans with Disabilities Act of 1990, 42 U.S.C. § 12132 (1994).
49. Civil Rights Act of 1964; Title VI, 42 U.S.C. § 2000d (1994).
effectuate the antidiscrimination provisions of the Act and may terminate

funding for recipients who fail to comply with the funding agency's
requirements, 0 subject to judicial review." For instance, an agency
funding an academic research program is empowered under Title VI to
ensure that racial and ethnic minorities are not excluded from participation
in the federally funded program. If an agency finds discrimination, it may
threaten to cut off funding until the discrimination is rectified.
Nevertheless, agencies may not take administrative action over employment
discrimination unless a primary objective of the federal assistance in
question is to provide employment." This restriction is in place presum-
ably to preserve the scope of CRA Title VII as the standard vehicle for
employment discrimination claims.53
The courts have found that, in addition to these administrative
mandates, CRA Title VI also includes an implied private right of action,
though the clearest recognition of this point came in a rather backhanded
way. In Cannon v. University of Chicago,54 the United States Supreme
Court held that Congress intended that an implicit private right of action
exist for complaints under Title IX of the Education Amendments of
1972."5 The Court reasoned that because Title IX was based on CRA
Title VI, and because Title VI had been construed as creating a private
right of action, Congress must have intended that the reading be extended
to Title IX. 6 Other federal courts similarly extended private rights of
50. See id. § 2000d-l; see also AUGUSTUS J. JONES, JR., LAW, BUREAUCRACY AND POLmCS:
THE IMPLEMENTATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964, at 7 (1982) (describing the
fouravailable sanctions forTitle VI violations as voluntary compliance, fund termination, fund deferral,
and referral of cases to the DOJ); Janet A. Flaccus, DiscriminationLegislationfor the Handicapped:
Much Ferment and the Erosion of Coverage, 55 U. CIN. L. REV. 81, 86 (1986) (concluding that Title
VI's remedy scheme is based on administrative action).
51. See 42 U.S.C. § 2000d-2.
52. See id. § 2000d-3.
53. See Johnson v. Transp. Agency, 480 U.S. 616, 627 n.6 (1987) (noting congressional action
taken to ensure employers who receive federal monies are subject to the dictates of Title VI and not
Title VII).
54. 441 U.S. 677 (1979).
55. See id. at 717.
56. See id. at 703. But cf. Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582, 594-95 (1983)
(White, J.) ("[A]t least eight Justices in Cannon were of the view that Title VI and Title IX could be
enforced in a private action against a state or local agency receivingfederalfumds ... ."(emphasis
added)). The issue of private rights of action under CRA Title VI was the subject of quite some debate
in Guardians. Justice White, joined by Justice Rehnquist, found that a private right was available, but
that damages were limited to prospective relief only because Title VI was spending-power legislation.
See id. at 595-97 (White, J.). Justice Powell, joined by Chief Justice Burger, denied that Congress
could have implicitly intended a private right of action. See id. at 608-10 ( Powell, J., concurring).
Justice Marshall in dissent found that courts could fashion both retrospective and prospective relief for
private claimants in Title VI actions. See id. at 634 (Marshall, J., dissenting). Justice Stevens, joined
by Justices Brennan and Blackmun, wrote that Title VI actions were appropriate for any remedy, and
that even if Title VI actions could not be brought, § 1983 could support a Title VI claim. See id. at
action under Title VI to its descendant statute, the Rehabilitation Act."

Without any legislative description of a private right of action, the courts
have had to outline the terms of one. Like actions under Section 1983 of
CRA Title VII, CRA Title VI private actions are governed by a personal
injury statute of limitations borrowed from state law. 8 Because the
administrative remedies associated with Title VI primarily concern inter-
governmental relations, rather than restoring aggrieved individuals,
administrative remedies need not be exhausted prior to filing a Title VI
action. 9 Following thereon, courts have found no exhaustion requirement
60
for claims under Title VI's descendant, the Rehabilitation Act.
635-39 (Stevens, J., dissenting). Justice O'Connor did not reach the issue of whether Title VI could
support a private right of action, id. at 612 n. I (O'Connor, J., concurring), leaving at least six justices
favoring some type of a private right.
57. See, e.g., Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990) (stating that the Rehabilitation
Act creates a private right of action against federal funds recipients); Pushkin v. Regents of Univ., 658
F.2d 1372, 1380 (10th Cir. 1981) (holding that a private right accords with congressional intent under
the Rehabilitation Act as well as the Cortand Cannon factors); Kling v. County of L.A., 633 F.2d 876,
878 (9th Cir. 1980) (citing Lloyd's application of Cort with approval), rev'd, 474 U.S. 936 (1985);
Lloyd v. Regional Transp. Auth., 548 F.2d 1277, 1284-87 (7th Cir. 1977) (applying the traditional
Cort test for an implied private right of action). But cf. Consolidated Rail Corp. v. Darrone, 465 U.S.
624, 630 n.7 (1984) (expressly failing to address whether § 504 of the Rehabilitation Act gives rise to
a private right of action).
The Con test is the Supreme Court's standard analytical method for determining whether an
implied private right of action exists under a statutory scheme. The four parts of the test are: (1) Is
the plaintiff a member of the class for whose benefit the statute was implemented, or for whom a
federal right was created?; (2) is there any indication of explicit or implicit legislative intent to create
or deny a private right of action?; (3) is it consistent with the underlying purpose of the legislative
scheme to imply a private remedy?; and (4) is the cause of action traditionally relegated to state law,
such that inferring a federal cause of action is inappropriate? See Cort v. Ash, 422 U.S. 66, 78 (1975)
(denying the existence of a federal shareholder-derivative claim for a corporation's violation of federal
elections law).
58. See, e.g., Reynolds v. School Dist. No. 1, 69 F.3d 1523, 1532 n.12 (10th Cir. 1995) (stating
that general personal injury laws provide statutes of limitations for §§ 1981 and 1983 and Title VI);
Doe v. Attorney Gen., 941 F.2d 780, 784-85 (9th Cir. 1991) (recognizing that federal civil rights laws,
such as §§ 1981 and 1983, and the Rehabilitation Act are analogous to tort laws and take their statutes
of limitations therefrom).
59. See NeighborhoodAction Coalition v. Canton, 882 F.2d 1012, 1015 (6th Cir. 1989) (pointing
out that not all administrative findings of a Title VI violation provide relief for the individual claimant).
The United States Supreme Court has held several times that inadequate administrative remedies (i. e.,
those that do not protect the rights of the complainant or offer him relief) need not be exhausted under
Title VI. See, e.g., Coit Independence Joint Venture v. FSLIC, 489 U.S. 561, 587 (1989) (holding
that a financial insurance claimant need not suffer delays that prejudice his rights simply to effectuate
the remedial scheme).
60. See Andrews v. Consolidated Rail Corp., 831 F.2d 678, 684 (7th Cir. 1987) (holding that,
since §§ 503 and 504 claims did not require exhaustion, a statute of limitations would not be tolled by
§ 503 administrative proceedings to preserve a § 504 suit); Mienerv. Missouri, 673 F.2d 969, 978 (8th
Cir. 1982) (finding that administrative remedies that do not require damages payments to injured people
are inadequate and therefore need not be exhausted); Pushkin, 658 F.2d at 1382 (holding that § 504
would not require a plaintiff "to pursue a remedy which is irrelevant to his particular need"); Kling,
633 F.2d at 879 & n.4 (following Camenisch in applying the Cannon analysis to the administrative
enforcement procedures under § 504); Camenisch v. University of Tex., 616 F.2d 127, 135 (5th Cir.
The ADA's Title II incorporates the enforcement mechanisms of the

Rehabilitation Act, 6' but does not describe what those mechanisms are.
It simply points to the Rehabilitation Act, which itself simply points to
CRA Title VI. Though Title VI is said to give rise to a private right of
action with a personal injury statute of limitations, there is nothing in Title
VI that creates the action.62 One must look to case law to find evidence
of a private right of action in Title VI or the Rehabilitation Act, which
leaves open the question of whether ADA Title II is meant to create a
private right. Certainly, Congress was aware of how the courts had read
CRA Title VI. 63 Their failure to simply write the remedy into law makes
uncertain what the meaning of their cross-reference was. On the one hand,
Congress, having given the courts discretion to fashion an enforcement
regime under Title VI and the Rehabilitation Act with satisfactory results,
may have intended to hand the courts further discretion with the ADA,
trusting that they would not create an unworkable or inequitable scheme.
On the other hand, the legislators may have believed that the judicial
doctrine of Title VI and the Rehabilitation Act was settled and
unchangeable. Congress, having pressed the judicial button before with
satisfactory results, may have intended to press the button again in hopes
of getting the same food pellet.
At least some members of Congress recognized the method by which
the Rehabilitation Act provided a private right of action. Congressman
1980) (holding that requiring administrative exhaustion would be particularly perverse in light of the
fact that a final administrative remedy under § 504-fund termination-could "guarantee" the
complainant lost his services), vacated, 451 U.S. 390 (1981). But see Stubbs v. Kline, 463 F. Supp.
110, 117 (W.D. Pa. 1978) (referring a Rehabilitation Act case to the Department of Health, Education,
and Welfare to "preserv[e] the administrative machinery created" for the Act and conserve judicial
resources); Doe v. New York Univ., 442 F. Supp. 522, 523 (S.D.N.Y. 1978) (reading Lloyd to require
that private rights of action under the Rehabilitation Act be subject to meaningful administrative
enforcement mechanisms); Crawford v. University of N.C., 440 F. Supp. 1047, 1057-58 (M.D.N.C.
1977) (finding administrative remedies more encompassing and effective than judicial remedies and
ruling that individual "trigger[ing]" of complaints as well as amicus participation were meaningful
enough to satisfy the Supreme Court's requirements); NAACP v. Wilmington County Med. Ctr., Inc.,
426 F. Supp. 919, 924-25 (D. Del. 1977) (finding that allowing administrative work carries out
congressional expectation that Title VI be administered by agencies, with judicial review following).
61. The language of incorporation runs: "The remedies, procedures, and rights set forth in section
794a of Title 29 shall be the remedies, procedures, and rights this subchapter[, Title II,] provides to
any person alleging discrimination on the basis of disability in violation of section 12132 of this title."
Americans with Disabilities Act of 1990, 42 U.S.C. § 12133 (1994).
62. See Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582, 597 (1983) (recognizing that the
private cause of action was judicially, not legislatively, created); Dorsey v. United States Dep't of
Labor, 41 F.3d 1551, 1554 (D.C. Cir. 1994) (arguing that, if they exist at all, Title VI actions are
judicially inferred).
63. See Cannon v. University of Chicago, 441 U.S. 677, 706 n.40 (1979) (pointing out congres-
sional awareness of the Title VI private right of action when adopting Title IX); Doe, 941 F.2d at 786
(noting that the debates on the 1978 Rehabilitation Act amendments showed Congress's awareness of
judicial interpretations of the Act that provided for private actions).
Steny Hoyer of Maryland discussed the question of remedies against state

and local governments in an extension of remarks:
[T]itle II extends to whatever spheres of authority a State or local
government is involved in-including employment, health and service
programs, the streets....
• . . As in title I, the intent of the change is simply to clarify

that the remedies provided by the Rehabilitation Act-as they
currently stand or as they might be amended in the future-are the
remedies that title II provides. The Rehabilitation Act provides a
private right of action, with a full panoply of remedies.'
If we assume Hoyer's remarks are representative of legislative intent,65
there are two plausible ways to read that intent.
First, Congress may have intended that ADA Title II provide remedies
similar to the Rehabilitation Act's, whatever those remedies happen to be.
In that case, there is no need to consult congressional intent further as to
what the remedies of the statute are-one would simply analyze the
Rehabilitation Act to determine how to proceed.' Second, Congress may
have intended that the ADA Title II remedies be what Congress under-
stands the Rehabilitation Act's remedies to be-namely, a private right of
action without an exhaustion requirement. The problem with that view is
that Congress not only did not codify that right of action in the ADA, but
it never codified that right of action in the predecessor statutes. One
looking solely to the text of the Rehabilitation Act or CRA Title VI would
find that the enforcement is almost entirely administrative. Therefore, in
order for Congress to permanently enact the private right of action
64. 136 CONG. REC. E1916 (daily ed. June 13, 1990) (citing Miener, 673 F.2d at 969; Kling v.
County of L.A., 769 F.2d 532 (9th Cir.), rev'd, 474 U.S. 936 (1985)). As one might expect, Hoyer
could not point to any code section to argue that the Rehabilitation Act provides a private right of
action. In fact, his extension of remarks (which are ostensibly meant to be spoken) contained two
formal case citations to the Miener and Kling decisions as evidence of the Rehabilitation Act's private
right of action. The key point here is that Hoyer is asking for two fundamentally incompatible things:
on the one hand, a continuing linkage between the judicially created Tite VI and Rehabilitation Act
remedies and Tite II, and on the other hand, a legislatively created private right of action in Title II.
Congress could not simultaneously cede control of remedies to the courts and keep control for itself.
65. Just as we had difficulties with Tom Harkin's language earlier, not all of Hoyer's potentially
dispositive explications are clear. One cannot be sure from the context of Hoyer's remarks whether
his use of the word "employment" refers to employment by a state or local unit or the provision of
employment services (like training, placement, etc.) by a state or local unit. Second, it is not clear
whether his use of the word "amended" refers specifically to a legislative amendmentor more colloqui-
ally to changes by either legislative enactment or judicial gloss.
66. Simple deference to the Rehabilitation Act leaves open the question of how one analyzes the
Rehabilitation Act. One could either look to the settled jurisprudence of the Rehabilitation Act or one
could start from scratch (i.e., from the language of the statute), to ensure that the settled jurisprudence
still made sense in the new context of the ADA. I advocate the latter, as will be discussed in Part IV,
infra.
enforcement scheme, it would have to incorporate the predecessor statutes

and ensure that those predecessor statutes remain interpreted as 1hey are
now. Congress would be relying on its intent-as expressed in legislative
history-to alter or override a judicial interpretation of a law enacted by a
prior Congress.67 In other words, the no-exhaustion view holds that
Congress implicitly asserted dominion over the judicially created right of
action which had existed for decades in order to preserve it so that public
employees would be free of the exhaustion requirements Congress explicitly
applied to them in Title I.
One imagines Congress would think twice about creating administra-
tive mechanisms and parallel private rights that evade those mechanisms.
In fact, an early version of the ADA in the Senate was criticized for such
a setup. A lobbyist from the U.S. Chamber of Commerce, Zachary
Fasman, pointed out that the Senate's bill included both Section 1981
remedies and CRA Title VII administrative remedies:
We believe this is clearly unwise, and we believe it is so
because these laws precede from antithetical premises.
Title VII stresses agency involvement, conciliation and
voluntary compliance .... Section 1981, by contrast, allows an
individual to go directly into Federal court without involving the
agency at all. We are unfamiliar with any Federal statute where
Congress both writes in a role for an administrative agency and then
says that resort to that agency is unnecessary."
Interestingly enough, one can ignore Congress's administrative remedy
under CRA Title VI and proceed directly to court. But, in line with
Fasman's comment, Congress did not authorize this sidestep of its
administrative procedure. The courts did.69 One might wonder why
Congress would allow private employers the benefit of informal concilia-
tion procedures before an employee could proceed to court and not extend
the same courtesy to state and local government units, particularly when
the legislators went to the trouble of treating governments like other
67. Of course, the central inquiry in any Cort private right analysis is the intent of the legislature.
The other factors (plaintiff in benefitted class, consistency with overall scheme, traditional state role)
help to illuminate that central inquiry. See Touche Ross & Co. v. Redington, 442 U.S. 560, 575-76
(1979) (discussing the relative importance of the Cortprivate rights factors and finding legislative intent
to be the central inquiry en route to holding that the Securities and Exchange Act of 1934 does not
provide a private remedy). But if one reads the intent of ADA Title I as independently creating a
private right of action, then one either uncouples Title II from the Rehabilitation Act and CRA Title
VI by analyzing Title II alone (which is contrary to the text of the statute), or decides that Congress
has ratified and mandated what it read as the interpretation of the courts (which Congress cannot do
simply with legislative history). See infra note 112.
68. Americans with DisabilitiesAct of 1989: Hearings on S. 933 Before the Comm. on Labor and
Human Resources andtheSubcomm. on the Handicapped,101st Cong. 35 (1989) (statement of Zachary
Fasman, United States Chamber of Commerce).
69. See supra notes 54-60 and accompanying text.
employers in Title I. Unfortunately, Congress did not appear to be focused

on this procedural inconsistency.
Several cases follow Petersen in simply reaching through Title II to
the Rehabilitation Act for a rule on exhaustion. 7' The problem with this
approach is that it mechanically applies the Rehabilitation Act jurisprudence
to ADA Title II without analytically situating that jurisprudence. The
Rehabilitation Act's private right of action was judicially-not
legislatively-created. Congress could easily enough have noted the
effectiveness of the private right of action and codified it in the ADA; for
whatever reason, it chose not to. Therefore, judges ought to be able to
decide whether the private right of action is useful under ADA Title II the
same way they decided under the Rehabilitation Act, and before that, CRA
Title VI. As mentioned above, it seems that there is no reason to afford
an ADA Title II employment plaintiff a private right of action when he has
both administrative and judicial remedies available under Title I that will
adequately meet his needs regardless of who his employer is. There is
simply no need to keep plugging the same judicially created remedies into
a rapidly changing statutory framework.
The United States Courts of Appeals have expressed hostility toward
using private rights of action to evade the CRA Title VII scheme of
enforcement. The Fifth Circuit, in Lakoski v. James,7 held that the
70. See, e.g., Motto v. City of Union City, No. CIV. A. 95-5678, 1997 WL 816509 (D.N.J.
Aug. 27, 1997) (finding that public employees have the option of bringing either a Title I or Title II
claim); Davoll v. Webb, 943 F. Supp. 1289, 1296-98 (D. Colo. 1996) (granting the plaintiff
exhaustion-free Title II status even though it was not clear whether the plaintiff was suing under Title
I or II); Doe v. Milwaukee; 871 F. Supp. 1072, 1076 (E.D. Wis. 1995); Gorsline v. Kansas, No. 93-
4254-SAC, 1994 WL 12998, at *2 (D. Kan. Mar. 4, 1994) (both noting that Title II adopts the
remedies, rights and procedures of the Rehabilitation Act, including its lack of an exhaustion
requirement); Binetti v. Illinois Dep't of Transp., No. 94 C 2694, 1994 WL 724866, at *3 (N.D. Ill.
Dec. 22, 1994) (holding that ADA Title II claims are subject to the administrative procedures of § 504
of the Rehabilitation Act); Finley v. Giacobbe, 827 F. Supp. 215, 219 n.3 (S.D.N.Y. 1993) (noting
that the private right of action under the Rehabilitation Act has no exhaustion requirement). The court
in Doe did not have to examine the exhaustion issue at length, however, because the defendant-county
conceded the no-exhaustion assertion by plaintiff. See Doe, 871 F. Supp. at 1075. Of more concern
was the proper statute of limitations. The court refused to apply the DOJ's 180-day limitation for
agency filings to court filings. See id. at 1076-77. Instead, it applied Wisconsin's injury-to-"character-
or-rights" statute, with a frighteningly long six-year limitations period. See id. at 1077-78.
71. 66 F.3d 751 (5th Cir. 1995). Lakoski was cited by the defendants in Wagner v. Texas A&M
Univ., 939 F. Supp. 1297 (S.D. Tex. 1996), to support their argument that the Fifth Circuit was "wary
of creating ... policy anomalies." Id. at 1310. The court in Wagner, however, distinguishedLakoski
on the ground that ADA Titles I and II created separately and distinctly enforceable rights, unlike Titles
IX and VII-both read to create only one right in the various courts and implementing regulations. See
id. Certainly, Titles I and II have been read separately in regulation and case law thus far, and the
legislative history supports this reading better than the history in Lakoski. However, if one reads the
legislative history under Title II as suggesting a separate right of action for public services claims but
remaining essentially silent on the subset of possible employment claims, then Lakoski is suddenly on
point. The Wagner court assumed that the legislative history on Title II spoke broadly to employment
claims and would not usurp what it considered a generally unambiguous construction of the statute
supported by prior case law. See id. at 1309-10.
"comprehensive remedial scheme" of CRA Title VII could not be circum-

vented by filing a claim under Title IX of the Education Amendments of
1972.' While it recognized that Title IX, like CRA Title VI, provided
only fund-termination remedies and therefore might seemingly support
private rights of action under Section 1983, the court could not ignore the
"larger federal legislative scheme designed to protect individuals from
employment discrimination."7 3 The court argued that since the rights
established under Title IX and Title VII were the same right-to be free
from sex discrimination in employment-and Title IX's language included
only administrative enforcement along fund-termination lines, there was no
reason to think that Congress would have wanted to provide aggrieved
employees two different mechanisms for enforcement.74 Similarly, ADA
Titles I and II employment claims concern the same right: to be free from
disability discrimination in employment. Also, ADA Title II's enforcement
scheme, at least from the text of the statute, is a fund-termination scheme
that does not provide the same kind of private right or conciliation oppor-
tunities that ADA Title I does via CRA Title VII. Again, allowing the
direct-to-court move seems to frustrate the detailed, comprehensive proce-
dures Congress created in ADA Title I.
C. ConstructionRules Found in the ADA

ADA Title IV includes a number of statutory construction provisions,
none of which squarely resolves conflicts between remedy procedures. The
primary rule of construction of the statute is that the ADA will not be
construed to provide a "lesser standard" of protection than the
Rehabilitation Act75 or to preempt any federal or state law that provides
equal or greater protection for the disabled than the ADA does.76
Whether an administrative exhaustion requirement constitutes less
protection than an immediate private right of action is unclear.' The
72. Lakoski, 66 F.3d at 755.

73. Id.
74. See id. at 756-57 (arguing that Congress only intended Title IX to bolster enforcement of the
pre-existing Title VII prohibition of sex discrimination, and did not intend Title IX to allow employees
to circumvent the pre-existing Title VII remedies).
75. Since the passage of the ADA, the Rehabilitation Act has been amended so that agencies will
consider its standards as matching those of the ADA. For non-affirmative action complaints, see
Rehabilitation Act of 1973, 29 U.S.C. § 791(g). For federal contracts, see id. § 793(e). For
discrimination by federally funded agencies, see id. § 794(d).
76. See Americans with Disabilities Act of 1990, 42 U.S.C. § 12201(b) (1994).
77. Many suggest that an administrative remedy is preferable to a court remedy. Bob Lanier, then
chairman of the Harris County Metropolitan Transit Authority, in his testimony before the
Subcommittee on Select Education, said:
Without knowing that much about the specifics, one difficulty with litigation is it costs so
much money and it takes so long to get to the court. In the state court here, it takes two
or three years. In the Federal court, somewhat shorter.
hearings on remedies suggest that the advantages or disadvantages of

administrative methods were not at the core of the protection concern. The
legislators realized that because several different agencies would handle the
tasks of discrimination regulation, uncertainty could result as to compliance
with ADA mandates. That awareness is reflected in the legislation itself
and the hearings held by Congress. For instance, at a Field Hearing in
Houston, Congressman Steve Bartlett asked Melody G. Ellis78 and Nikki
R. Van Hightower79 :
In the bill, no doubt there will be other agencies like yours who
would be covered by Section 504 [of the Rehabilitation Act] as well
as covered by the new ADA of prohibition against employment
[discrimination].
Now, should there be a conflict between those two, do you
think we should have a preemption... ?
So my question is, as head of an agency, .... could you see a
potential problem to having to conform to both 504 as well as the
new ADA?
Ms. ELLIS. I think it would be helpful if the two agencies could
get together. We will do whatever it is that is required, but
sometimes it is difficult to deal with more than one agency.
Ms. VAN HIGHTOWER. Well, I think that is true. I would hope

that we would go with the strongest legislation as possible.
Mr. BARTLETT. So preemption, but erring on the side of
whichever one was stronger?
Ms. VAN HIGHTOWER. That is correct. 80
Ms. Ellis's concern was answered. Provisions of the ADA on regulations
require that agencies coordinate among each other the definitions and
... [I]f some sort of administrative remedy could be set up where the complaint
could be quickly heard and quickly disposed of and the staff so that speed could be
accomplished, would strike me as perhaps an effective remedy.
Mr. [ROBERT] MOSBACHER [JR., Chairman of the Texas Department of Human

Services Board] Mr. Chairman, I would associate myself with Mr. Lanier's remarks, and
I think the worst thing that we can see as a result [is] something that became so time
consuming that in fact it took years to bring closure.
FieldHearing, supra note 31, at 70-71. Furthermore, Title VII administrative remedies benefit the
courtroom process. See McKart v. United States, 395 U.S. 185, 194-95 (1969) (arguing that exhaus-
tion requirements preserve executive and administrative autonomy, establish a fact record, increase
judicial efficiency, and allow agency expertise to work); Park v. Howard Univ., 71 F.3d 904, 907
(D.C. Cir. 1995) ("The administrative charge requirement serves the important purposes of giving the
charged party notice of the claim and 'narrow[ing] the issues for prompt adjudication and decision.'"
(quoting Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 472 n.325 (D.C. Cir. 1976) (alteration in
original) (quoting Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 720 (7th Cir. 1969)))).
78. Then president of the Board of Education for the Houston Independent School District.
79. Then treasurer of Harris County, Texas (the county in which Houston sits).
80. FieldHearing, supra note 31, at 38.
standards for finding violations. Unfortunately, the notion that the ADA
preempts the Rehabilitation Act, or vice versa, never made it into legisla-
tion for fear that the weaker one would preempt the stronger. For its part,
the EEOC was not worried about the parallel statutes because it assumed
that the ADA would simply take the focus off of its predecessor
legislation."' The end result is that the legislative history provides little
insight as to how ADA Title I's exhaustion scheme compares to Title II's
private right of action in terms of quality of "protection."
In contrast to the "protections" comparison mandated by the construc-
tion provision, ADA Title IV's state-immunity provision requires a com-
parison of the remedies available against private employers and government
entities. Eleventh Amendment immunity is denied the states by the ADA,
with the following explanation:
In any action against a State for a violation of the requirements of
this chapter [the ADA], remedies (including remedies both at law
and in equity) are available for such a violation to the same extent as
such remedies are available for such a violation in an action against
any public or private entity other than a State.'2
Facially, this provision suggests an alignment of remedies that would not
exist if public employees were exempt from the administrative exhaustion
requirement. A private employer, in a courtroom against an employee who
failed to exhaust administrative remedies, escapes liability. A public actor
does not under the no-exhaustion reading of Title 11.8
81. Congressman Bartlett asked EEOC Commissioner Evan Kemp about preemption in a hearing
on Capitol Hill:
Let me ask you specifically. Currently the bill in both versions says that ADA does not
preempt 504, so that a Federal contractor would be required to comply with both.
Now, since [504 and the ADA are] virtually identical, if not identical-the intent
is that they be identical or on the same track-do you think that we should have ADA...
preempt a future complaint or suit under 504 or 503, based on the same set of
circumstances, obviously?
Mr. KEMP. I think that the ADA is probably going to be the dominant bill in this
area. I think that judges and lawyers, just like all of us, are lazy and are going to use the
ADA as their model.
I think in a few years that we can speak about 504 still being in existence, still
being a way to go, but most people probably would be proceeding under the Americans
with Disabilities Act.
Hearing on H.R. 2273, The Americans with DisabilitiesAct of 1989:Joint HearingBefore the House
Subcomms. on Employment OpportunitiesandSelect Educationof the Comm. on Educationand Labor,
101st Cong. 12 (1989).
82. Americans with Disabilities Act of 1990, 42 U.S.C. § 12202 (1994).
83. States could arguably assert that they are immune from any ADA remedies in excess of those
available against private entities. Exhaustion opponents would be forced to rely on the ADA's meager
legislative history to show that Congress wanted broader remedies available against states-an
unpromising strategy in light of the Supreme Court's hostility to abrogating state immunity on the basis
of legislative history. For an explanation of the Court's view, see Dellmuth v. Muth, 491 U.S. 223,
Finally, the ADA expresses a preference for alternative dispute

resolution-including negotiation, conciliation, mediation, and arbitration-
for disputes arising under the ADA.' Allowing a private right of action
without giving conciliation a chance, when there is an interpretation of the
law available that would require administrative remedies, seems contrary
to the spirit of this provision.
After consulting the statute and the legislative history, one might think
the case closed. ADA Title I offers all employment discrimination victims
a sound and tested enforcement scheme-one favored by the legislative his-
tory and public policy. True, Title II imports CRA Title VI remedies, but
may not effectively import the judicial interpretations that actually created
a private right of action thereunder. But there is an unsettling silence in
the congressional debates about the exhaustion problem. Perhaps a look
at the ADA regulations is in order.
III. Regulations Under the ADA and Associated Laws

A. The Regulatory Text
Unfortunately, the regulations under the ADA do little more than
repeat the language of the statute. Lacking focused analysis in the
regulations, a court seeking an authoritative decision about whether public
employees need to exhaust their administrative remedies will be
disappointed. Furthermore, the cases which hold that the ADA regulations
provide public employees a golden ticket to federal court may not be
reading the language correctly.
ADA regulatory responsibilities are divided. ADA Title I orders the
EEOC to issue regulations carrying out the Title,' and orders the AG,
EEOC, and Office of Federal Contract Compliance Programs to coordinate
regulations to avoid duplicative effort or inconsistent standards between
ADA Title I and the Rehabilitation Act. 6 The AG must issue regulations
for Title II's subtitle A. 7
Under the EEOC investigation procedures, an aggrieved employee
may seek temporary or preliminary relief in a court,8 but cannot receive
230-31 (1989) (demanding unmistakably clear language in a statute in order to satisfy the special
constitutional concerns in this area, and dismissing the legislative history).
84. See 42 U.S.C. § 12212. Interestingly enough, when Congress decided to bring itself under
the confines of the ADA and the Rehabilitation Act, it required its employees to go through an admin-
istrative process before filing suit. See CongressionalEmployees: ProceduresOutlinedfor Resolving
Alleged Breaches of Accountability Act, 34 Gov't Empl. Rel. Rep. (Warren, Gorham & Lamont) 46
(Jan. 8, 1996).
85. See42 U.S.C. § 12116.
86. See id. § 12117(b).
87. See id. § 12134(a). Title II splits into a "Prohibition Against Discrimination" subtitle, the only
part this Note concerns, and a "Public 'Transportation" subtitle, which is under the Secretary of
Transportation's aegis. Id. § 12149, 12164.
88. See 29 C.F.R. § 1601.23(c) (1997).
a right-to-sue letter until 180 days after filing with the EEOC (unless the
EEOC determines it will be unable to timely complete processing, 89 or
dismisses the employee's discrimination charge entirely).' The EEOC
has also promulgated interpretative regulations for the ADA, grouped in
the Code with its Title VII regulations. Needless to say, there is no
language in the EEOC regulations providing public employees a free pass
to federal court.
The DOJ holds in its ADA Title II regulations that the statute prohibits
employment discrimination by any entity subject to Title II. 91 To flesh
out that position, the DOJ adopts terms and definitions of employment dis-
crimination that are similar to and consistent with the EEOC's terms and
definitions. 2 Unlike the EEOC investigation regulations, the DOJ rules
do not require complainants to obtain right-to-sue letters. Congress
demanded that the DOJ's regulations be "consistent with [the entire
ADA]";93 whether failing to require administrative complaints is consis-
tent is debatable, given the havoc caused to the ADA's administrative plan.
Finally, the DOJ is required to coordinate its administrative investigations
94
with the investigations that occur under ADA Title I.
Therefore, the sum total of relevant regulation under the ADA
includes a DOJ pronouncement that ADA Title II applies to employment
discrimination, just as its predecessor the Rehabilitation Act had. A
procedure is in place that allows for some administrative complaints under
Title II, but there is no DOJ requirement that it be invoked before proceed-
ing to federal court. By contrast, there is a specific administrative
complaint and exhaustion procedure under the EEOC regulations for ADA
Title I. On that basis for finding an exhaustion-free procedure, Petersen
89. See id. § 1601.28(a)(2).

90. See id. § 1601.28(a)(1), (b), (d).
91. See 28 C.F.R. § 35.140 (1997). Appendix A to.Part 35 indicates the DOJ's belief that "Title
H of the ADA applies to all activities of public entities, including their employment practices." Id. pt.
35 app. A § 35.140.
92. The DOJ simply adopts the EEOC's interpreting regulations (i.e., its terms and definitions)
for all public entities that also fall under Title I. See id. § 35.140(b)(1). Therefore, public entities
falling under both titles are safe from the risk that the EEOC and DOJ will have different ideas about
what conduct complies with the ADA. However, public entities not subject to Title I are solely within
the DOJ's regulatory ambit. Therefore, the DOJ instructs that Tide II entities will be covered by the
terms and definitions associated with § 504 of the Rehabilitation Act. See id. pt. 35 app. A § 35.103,
at 466. The § 504 regulations appear at id. § 41. The DOJ indicates, however, that there is little dif-
ference between the interpretative regulations of the two statutes. See id. pt. 35 app. A § 35.140, at
482 ("Standards for title I of the ADA and section 504 of the Rehabilitation Act are for the most part
identical because title I of the ADA was based on requirements set forth in regulations implementing
section 504.").
93. Americans with Disabilities Act of 1990, 42 U.S.C. § 12134(b) (1994).
94. See 42 U.S.C. § 12117(b). The DOJ also indicates that it will coordinate its own
Rehabilitation Act investigations with its Title II investigations. See 28 C.F.R. pt. 35 app. A § 35.171.
was followed by numerous courts.' Even if one sets aside the concern
that the regulations do not require an exhaustion-free right of action at all,
if the DOJ actually was taking the position that public employees may sue
for discrimination without exhausting administrative remedies, would the
courts be required to follow its pronouncement? Probably not.
B. Deference to the Regulatory Posture

The court in Petersen held that the federal regulations clearly recog-
nized employment claims under ADA Title II, and further held that the
federal regulations' interpretation of a statute are entitled to deference.'
To that extent, Petersen is correct. 7 The DOJ was expressly instructed
to implement the public service discrimination provisions of Title 11.98
When Congress explicitly directs an agency or department to implement a
statute, the regulatory deference posture announced in Chevron U.S.A. Inc.
95. See, e.g., Bledsoe v. Palm Beach County Soil & Water Conservation Dist., 133 F.3d 816, 823
(1Ith Cir. 1998) (citing McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1073, 1074 (1lth Cir.
1996), for the proposition that Tide II contemplates employment claims); Wagner v. Texas A&M
Univ., 939 F. Supp. 1297, 1309-10 (S.D. Tex. 1996) (finding no clear congressional intent to impose
Title VII procedures on "Public Services" claimants); Lundstedt v. City of Miami, No. 93-1402-CIV,
1995 WL 852443, at *17 (S.D. Fla. Oct. 11, 1995) (holding that the ADA "requires the [DOJ] to
establish administrative procedures for resolution of complaints, but does not require complainants to
exhaust these administrative remedies"); Dertz v. City of Chicago, 912 F. Supp. 319, 324 (N.D. Ill.
1995) (holding that because Title II adopts the remedies, rights, and procedures of the Rehabilitation
Act, exhaustion of administrative remedies is not a prerequisite to filing a Title II suit); Noland v.
Wheatley, 835 F. Supp. 476, 482 (N.D. Ind. 1993) (holding that Title II enforcement is ambiguous
and thus subject to regulatory interpretation because § 12133 of the ADA, the enforcement provision,
does not distinguish between the enforcement mechanisms of § 794 of the Rehabilitation Act); Bell v.
Retirement Bd. of the Firemen's Annuity & Benefit Fund, No. 92 C 5197, 1993 WL 398612, at *5
(N.D. Ill. Oct. 6, 1993) (finding administrative procedures are available but not required). In
Lundstedt, the plaintiff filed an EEOC charge but did not name a defendant retirement trust. The court
ruled that even if the plaintiff were required to file an EEOC complaint for ADA Title II cases, naming
the board which operates the retirement trust would satisfy the purposes of CRA Title VII. See
Lundstedt, 1995 WL 852443, at *18.
96. Petersen v. University of Wis. Bd. of Regents, 818 F. Supp. 1276, 1279 (W.D. Wis. 1993)
(citing Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44
(1984)).
97. But see Decker v. University of Houston, 970 F. Supp. 575, 579 (S.D. Tex. 1997). The
Decker court found that allowing any ADA Tile II employment claims at all would make the regulatory
scheme of Tide I entirely redundant. See id. Of course, that is an overstatement. Tide I is still the
only source of relief for private employees, no matter how one reads Title II. At most, Title 11's
employment coverage is redundant as to government employees in large-employmentunits. TheDecker
court also decided that the public services language of Title II could not sensibly include employment.
See id. at 578. However, the Decker court chose to ignore the DOJ regulations commanding that Title
II does cover employment. See id. That decision was based on an improper level of Chevron
deference. The court applied the standard used for regulatory fill-ins of statutory silences or
ambiguities, not the standard applied to explicit delegations of authority. See id. at 578-79. The DOJ
has explicit authority over Tide II's scope. See 42 U.S.C. § 12134. For the different standards of
deference, see Chevron, 467 U.S. at 843-44.
98. See 42 U.S.C. § 12134(a).
v. NaturalResources Defense Council" holds that the resulting regulations

must be given controlling weight unless they are arbitrary, capricious, or
manifestly contrary to the statute.' °° The federal courts should give wide
latitude to the DOJ's determination of what violates the public service
discrimination provisions of the ADA and what does not. Such a program
is sensible-Congress has explicitly delegated some of its lawmaking
authority. Congress could conceivably write legislation that would be as
specific and comprehensive as the regulations under its legislation would
be, but there is no particular need to do so. Section 204 of the ADA
instructs the AG to "promulgate regulations in an accessible format that
implement" Title II; o1 by defining what violates the specific require-
ments of the Title, the DOJ is perfectly within its prerogative.
The next question is whether the DOJ could, consistent with its
mandate to "implement" the enforcement section of ADA Title II, simply
fabricate remedies out of whole cloth. The answer to that question is no;
the statute precludes creativity by the directness of its dictates. The
enforcement section, while only a reference to the Rehabilitation Act, is
still a very precise reference to the Rehabilitation Act. Specifically, it says
that "[t]he remedies, procedures, and rights setforth in section [505 of the
Rehabilitation Act] shall be the remedies, procedures, and rights this [title]
provides . . . . " Congress could have chosen to grant the remedies
"available under," "allowed by," or "associated with" the Rehabilitation
Act, but it instead chose to grant remedies "set forth" in the Act. In other
words, Congress in the language of the ADA arguably incorporated the
language of the Rehabilitation Act, not its jurisprudence. A court
approaching the enforcement section of the ADA has no ambiguity to
resolve by looking to federal regulations. Courts are specifically directed
to another federal statute.
The counter to this argument is that Congress obviously intended to
incorporate the Rehabilitation Act's jurisprudence because the legislative
history indicates that Congress wanted the average public services claimant
to be able to proceed to federal court. But the Chevron doctrine places no
value on legislative history and does not demand regulatory deference
unless the statute itself is ambiguous.'0 3 One could also respond that
Congress implicitly delegated to the DOJ the power to determine just what
the remedies set forth in the Rehabilitation Act are. If so, a court must
defer to any DOJ interpretation that is reasonable.' 4 But even in that
99. 467 U.S. 837 (1984).

100. See id. at 843-44.
101. See 42 U.S.C. § 12134(a).
102. 42 U.S.C. § 12133 (emphasis added).
103. Chevron, 467 U.S. at 842-43 & n.l1.
104. See id. at 844.
case, the DOJ would only be entitled to describe what was "set forth" in
the Rehabilitation Act. Any explication of the ADA's "set forth" language
that included remedies extrapolated from the Rehabilitation Act but not set
forth therein would be patently unreasonable. If the DOJ is to assert
broader prerogative to also describe remedies "occurring under" the
Rehabilitation Act it cannot do so on the grounds of implicit authority.
The enforcement authority codified in the statute does not extend that far.
The DOJ would have to claim that there was an ambiguity in the statute.
Under Chevron, courts consider whether agency interpretations of ambigui-
ties are "based on a permissible construction" of the statute. 5 The
"permissible" standard allows courts to weigh the "structure and language
of the statute as a whole, " ' 6 a standard which clearly favors the most
sensible and workable view of the ADA overall: public employees must use
the remedies available to them under Title I rather than evading the
administrative conciliation procedure.
Other factors tend to reduce deference to any DOJ regulatory inter-
pretation for the ADA Title H no-exhaustion scheme. While the DOJ
presumably has some expertise in relating with state and local
governments, it has no particular expertise when it comes to the handling
of employment claims. In fact, overseeing the broad enforcement of Title
II involves a process much like the regulatory makeup for the
Rehabilitation Act, with each executive agency enforcing its own anti-
discrimination policy over the projects it funds. While the staff at each
agency or department might know how to deal with their own supplicant
government units, they are not experts on employment discrimination. It
is agency expertise that forms the basis of the Chevron theory that judges
ought to defer to regulatory interpretations of law. The Rehabilitation
Act's "each-department-for-itself' regulation scheme was not entitled to the
kind of deference that the Supreme Court advocated in Chevron because it
was based on preserving administrative jurisdiction and not on administra-
tive expertise.0 7 Further, the DOJ's interpretive scheme has undergone
a change since its first introduction. The DOJ's first proposed rule would
have adopted ADA Title I definitions and procedures for ADA Title II
employment claims, but was met with objections.' 0 8 After re-examination
of the legislative history, the DOJ decided that it would frustrate
105. Id. at 843 & n.ll.

106. National R.R. Passenger Corp. v. Boston & Me. Corp., 503 U.S. 407, 417 (1992).
107. See Bowen v. American Hosp. Ass'n., 476 U.S. 610, 642 n.30 (1986) (taking the fact that
27 agencies promulgated antidiscrimination regulations under the Rehabilitation Act as evidence that
agency expertise was not entitled to maximum deference). Again, this shows the difficulties involved
in transferring the spending-power-basedRehabilitationActjurisprudenceto the commerce-clause-based
ADA environment.
108. See 28 C.F.R. pt. 35 app. A § 35.140 (1997).
congressional intent to exempt under-fifteen-employee public entities and

to phase in coverage of the ADA over time for public entities, as it was for
private entities. 1 Whether the DOJ is right or not, the fact that their
interpretation has shifted somewhat is reason itself to accord the inter-
pretation less deference. "0
Setting even those concerns aside and assuming that Congress implic-
itly granted the DOJ the right to declare whatever remedies it wanted to
make available under ADA Title II (meaning that the DOJ's interpretation
would only have to be reasonable to earn deference),"' how reasonable
is this purported administrative interpretation of Title II? Legislators
appeared to be of two minds about administrative remedies and Title II.
The House Committee on Education and Labor Report-which says the
Committee wants administrative enforcement for public services-is a fine
example:
It is the Committee's intent that administrative enforcement of section
202 of the [ADA] should closely parallel the Federal government's
experience with section 504 of the Rehabilitation Act of 1973....
... As with section 504, these Federal agencies, including the
Department of Justice, will receive, investigate, and where possible,
resolve complaints of discrimination. . . Because the fund
termination procedures of section 505 are inapplicable to State and
local government entities that do not receive Federal funds, the major
enforcement sanction for the Federal government will be [suits by the
Department of Justice]. .... As with section 504, there is also a
private right of action for persons with disabilities, which includes
the full panoply of remedies. Again, consistent with section 504, it
is not the Committee's intent that persons with disabilities need to
exhaust Federal administrative remedies before exercising their
private right of action." 2
109. See id.

110. See INS v. Cardoza-Fonseca, 480 U.S. 421, 446 n.30 (1987). The Court in Cardoza-
Fonsecaevaluated an administrative adjudication, not a regulation, but the precedent it cited did discuss
regulatory posture shifts. See id.; cf. Watt v. Alaska, 451 U.S. 259, 273 (1981) (rejecting a
Department of Interior interpretation of wildlife laws); GE v. Gilbert, 429 U.S. 125, 143 (1976)
(rejecting an EEOC interpretation of CRA Title VII). These cases also suggest that when regulations
are drafted contemporaneously with a statute, or when the agency in question helps to draft the statute,
greater deference is in order. See Watt, 451 U.S. at 272-73; Gilbert, 429 U.S. at 142. These
deference-increasing factors are not present in ADA Title II. Of course, there is still some question
about what the Supreme Court will eventually do with the idea that traditional statutory construction
techniques can be applied to regulatory interpretations. See DAVIS & PIERCE, supra note 23, § 3.6,
at 126-27.
111. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844
(1984).
112. H.R. REP. No. 101-485, pt. 2, at 98 (1990). It is worth pointing out that the Supreme Court
has not looked kindly on committee reports which purport to interpret the intent of earlier congressional
Interpreting the language, the Committee arguably says: (1) We want

the DOJ to refer these cases to appropriate federal agencies for overseeing
compliance; (2) these agencies will resolve the cases when they can; (3) if
the agencies cannot resolve them, the DOJ can step in with courtroom
action; and (4) by the way, the complainant can ignore steps one through
three and go straight to court (making utterly useless the administrative
procedure we are suggesting). True, this procedure appears "consistent
with section 504" of the Rehabilitation Act, at least on its face; but put into
practice, it is inconsistent. The problem lies in the fact that the
Rehabilitation Act's administrative conciliation provisions were designed
to operate in the framework of federal agencies that are funding state and
local governments (or other programs). That working relationship creates
leverage for agencies, allowing them to resolve complaints without the
necessity of courtroom involvement. The predecessor CRA Title VI
remedy also presupposes that an agency can cut off funding to a
recipient." 4 Title VI even demands that no action to cut off funding be
taken until the agency "has determined that compliance cannot be secured
by voluntary means."" 5 The Supreme Court has pointed out that Title
VI is based on the principle that Congress can decide how to spend its
money and should be able to withhold money from those not willing to
accept the federal government's conditions." 6 To suggest that indi-
viduals with complaints against agencies not funded by the federal
enactments. See NLRB v. Health Care & Retirement Corp., 511 U.S. 571, 581-82 (1994) (holding
that relying on a 1974 committee report on an amendment discussing the intent of the underlying 1947
legislation was inappropriate when Congress could have simply enacted that intent "without indirection"
at the point of amending). Further, the Court is skeptical of reports interpreting language not drafted
by the reporting committee. See Pierce v. Underwood, 487 U.S. 552, 567-68 (1988) (refusing to draw
intent from a committee report which contradicted the weight of precedent on a statute Congress was
re-enacting).
113. In fairness, neither this nor any other Committee ever says that it wants ADA Title II
employment claimants to be able to proceed directly to court. Since the statute is not altogether clear
on the matter, though, this silence cannot be ignored as a possible indicator of intent. See Osbom v.
AARP, 660 F.2d 740, 745 (9th Cir. 1981) ("[Clongressional silence is not necessarily fatal to
implication of a private right of action .... ."); cf. Dewsnup v. Timm, 502 U.S. 410, 419-20 (1992)
("[W]here the language is unambiguous, silence in the legislative history cannot be controlling.").
114. See Civil Rights Act of 1964, Title VI, 42 U.S.C. § 2000d-I (1994); cf. Cannon v.
University of Chicago, 441 U.S. 677, 705 n.38 (1979) (pointing out the legislative history and logical
analysis that, in most cases, Congress felt a lawsuit would be preferable to fund termination). Congress
knew that defending Title VI lawsuits would be a small trade-off for an agency that received federal
funds and could always forego them. That analysis is useless in the broad jurisdictional scope of ADA
Title II.
115. 42 U.S.C. § 2000d-1.
116. See Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582, 598, 598-99 (1983) (stating that
"Title VI is spending-powerlegislation"); United Steelworkers v. Weber, 443 U.S. 193,206 n.6 (1979)
(comparing CRA Title VI, an exercise of spending power, to CRA Title VII, an exercise of the
commerce power).
government could slip into this framework is absurd. They plainly would
always ignore it.
The result of rejecting the DOJ's alleged interpretation of ADA Title
II's enforcement provisions-and again, this is based on the likely
erroneous assumption that the DOJ actually advocates that employment
claimants can evade Title I by using Title II-is that courts will look only
to the language of the Rehabilitation Act to determine what Title II's
remedies are. That is not to say that no private right could exist under
Title II; rather, the courts would have to determine independently that a
private right exists, based on their own reading of the law, rather than any
regulator's advice. The jurisprudence of the predecessor Rehabilitation Act
would be persuasive authority because it construes the same language, but
it would not be binding. So, the courts would examine the statutory lan-
guage and determine whether the old justifications for finding a private
right of action in the Rehabilitation Act and its predecessor, CRA Title VI,
could be applied usefully to ADA Title II. I suggest that they could not
be.
The twofold justification for implying a private right of action for Title
VI is inapplicable to the ADA. The first justification is that there is no
opportunity for the victims of discrimination to participate in Title VI's
administrative process, so that requiring administrative exhaustion merely
serves to delay victims' efforts to vindicate their rights." 7 Second, the
terminal administrative remedy under Title VI-a cutoff of federal funding
when results cannot be had by conciliation-does nothing to help an
aggrieved employee."" But every employment discrimination victim
under Title II has an opportunity to participate in an administrative
remedy-namely, the employment discrimination enforcement mechanism
of Title I. It is available to every violation of the ADA that concerns
117. See NeighborhoodAction Coalition v. Canton, 882 F.2d 1012, 1015 (6th Cir. 1989) (holding
that Title VI litigants need not exhaust their administrative remedies because Title VI does not provide
a mechanism by which members of the protected class can actively participate in the administrative
process and therefore requiring exhaustion would impose undue hardship and delay); see also Cannon,
441 U.S. at 706 n.41 (distinguishing Title IX from contexts in which the Court has refused to imply
private rights of action). Cannon provided a private right of action to Title IX complainants stating that
even though
this Court has sometimes refused to imply private rights of action where administrative
or like remedies are expressly available. . . it has never withheld a private remedy where
the statute expressly confers a benefit ... and where it does not assure those persons the
ability to activate and participate in the administrative process contemplated by the statute.
Id.
118. See Cheyney State College Faculty v. Hufstedler, 703 F.2d 732, 737 (3d Cir. 1983)
(observing that under Title VI, administrative exhaustion is not a prerequisite to a private suit because
the only administrative recourse-the termination of funding-does nothing to help the individual
complainant).
employment." 9 The notion of a private right of action without exhaustion

is based on the Rehabilitation Act's private action, which is based on Title
VI's private action-existing solely because it was the only way a court
could help an injured plaintiff. 20 But a Title II employment discrimina-
tion plaintiff needs no shelter in this teetering house of cards-he has a
perfectly reasonable home available within Title I's enforcement provisions.
As a practical matter, it is impossible to use the Rehabilitation Act's
remedy plan under the broad-reaching ADA because the ADA covers enti-
ties with which the Rehabilitation Act is not equipped to deal. The
Rehabilitation Act's administrative framework collapses when applied to
entities not funded by the federal government. The question is not simply
one of whether there is a workable remedy found somewhere in the
Rehabilitation Act; it is a question of exactly how Congress intended for
the ADA to operate against governmental units that employ the disabled.
The Committee on Education and Labor reported that they want the major,
last-ditch enforcement mechanism to be the referral by Federal agencies
(like the EEOC, presumably) of cases they can not conciliate to the
DOJ.' But if we take seriously the idea that a public employee can go
straight to court, the major enforcement mechanism will be the
courtroom-without any agency-stopping-place at all.
C. Interpreting the Regulatory Posture

Even if one gives maximum deference to the DOJ, it is not at all clear
from a careful reading of its regulatory posture that it would give ADA
Title II employment claimants a direct path to federal court. The Petersen
reading of the regulations may in fact be faulty. The employment discri-
mination subpart of the regulation is silent as to whether a right of action
exists-it simply specifies the standards by which compliance with the
Act's antidiscrimination provision will be judged. l" The enforcement
119. See supra subpart 1(A). The Supreme Court's traditional requirement is that any available
administrative relief be exhausted prior to court filing on pain of dismissal. See Reiter v. Cooper, 507
U.S. 258, 269 (1993) ("Where relief is available from an administrative agency, the plaintiff is
ordinarily required to pursue that avenue of redress before proceeding to the courts; and until that
recourse is exhausted, suit is premature and must be dismissed.").
120. Of course, the idea of a private right of action that is not expressly within a statute is based
on effectuating congressional intent. An elaborate enforcement mechanism in a statute belies the notion
that Congress wanted the courts to "fill out" the vindication of citizens' rights. See Middlesex County
Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 14 (1981) (finding that "elaborate
enforcement provisions" handing control of water pollution and marine protection duties to
administrative agencies counseled against finding a Congressional intent to "authorize by implication
additional judicial remedies for private citizens"); see also Transamerica Mortgage Advisors, Inc., v.
Lewis, 444 U.S. 11, 19 (1979) ("[I]t is an elemental canon of statutory construction that where a statute
expressly provides a particular remedy or remedies, a court must be chary of reading others into it.").
121. See supra note 112 and accompanying text.
122. See28 C.F.R. § 35.140 (1997).
mechanisms subpart of the regulations provides a filing system for

complaints, but none of the language in these subparts provides the basis
for the decision in Petersen. The Petersen court quoted the appendix to the
regulations, a reprint of the explanatory preamble to the final regulation the
DOJ issued.'I That appendix included the no-exhaustion language from
the House Report 4 and an interpretationof a DOJ regulation which sug-
gested that a private right without exhaustion existed.
The regulation itself does not put courts into a deferential posture.
The regulation in question states: "At any time, the complainant may file
a private suit pursuant to section 203 of the Act . . . . "1 Section 203
of the Act is the "Enforcement" section of ADA Title II, which incorpo-
rates the Rehabilitation Act's remedies. In other words, the DOJ regula-
tion instructs that someone with a valid Title II lawsuit may bring his claim
at any time. But the regulation does not define what a valid Title II lawsuit
is. It also does not tell us who has this private right of action. If the DOJ
regulation had allowed a private right of action for any claim under Section
202 (Title II's "discrimination" section) then Petersen and its progeny
would be correct in their deferential posture. Then, the DOJ would be
defining a new private cause of action to which courts would have to defer.
But here, there is nothing to which one must defer. The DOJ did not
establish a private right. Just as Congress had done, the DOJ made refer-
ence to the law of the predecessor statutes without clarifying what rights
those statutes created. Any private right found under the DOJ
interpretation must be pursuant to the enforcement section of the ADA,
which does not independently create a private right. It only incorporates
whatever private right the case law has found in the underlying remedy
statutes. Therefore, the courts receive no guidance under the regulations.
The regulations simply repeat what the statute already said: Look to the
Rehabilitation Act for remedies. Whether doing so compels the conclusion
that a private right of action exists for all Title II claimants is debatable.
The regulations under the ADA provide at best weak support for a
public employee's expressway to court. Even if one reads them generously
enough to suggest a private right without exhaustion, one must contend
with the fact that such a reading runs contrary to the most sensible reading
of the text and legislative history. Furthermore, all three readings rely on
the single cornerstone of a judicially created private right of action under
CRA Title VI. Examining the contents of that cornerstone carefully
reveals the methods that can rectify the exhaustion anomaly.
123. The original was called the "Preamble to Regulation on Nondiscrimination on the Basis of
Disability in State and Local Government Services." 28 C.F.R. pt. 35 app. A. The preamble was
reprinted "[flor the convenience of the reader." Id.
124. See supra note 107 and accompanying text.
125. 28 C.F.R. § 35.172(b).
IV. Returning to Rational Remedies

Federal district courts have given public employees an open path to
litigation to which private employees are not'entitled. The clumsiness that
that reading of the ADA produces can be repaired, however. There are
three sensible methods to normalize the enforcement mechanisms-which
I will refer to as the Bledsoe method, the "Judicial deference" method, and
the "reanalysis" method.
A. The Bledsoe Method

The policy anomaly found in the Petersen line of cases has prompted
several "rebuttal" decisions, the first being Bledsoe v. Palm Beach Soil and
26
Water Conservation District,' a decision that has been influential despite
being subsequently overturned on appeal. In Bledsoe, the trial court ruled
that ADA Title II does not contemplate employment discrimination claims
at all." z The Bledsoe court argued that Title II did not clearly include
employment in the terms "services, programs or activities," and that
Congress probably meant to separate employment relationships from
government services by not tracking carefully enough the language of the
Rehabilitation Act."iu Finding no clear mandate in the language of ADA
Title II, the court proceeded to look to the overall design of the ADA for
guidance and found further reason to find that Title II did not cover
employment. 29 First, it found that including employment in Title II
made Title I redundant with respect to public employers with more than
fifteen employees. 30 Second, it held out the exhaustion anomaly as
126. 942 F. Supp. 1439 (S.D. Fla. 1996), rev'd, 133 F.3d 816 (1lth Cir. 1998). Other such
decisions include Decker v. University of Houston, 970 F. Supp. 575 (S.D. Tex. 1997), and
Zimmerman v. Oregon Dep't ofJustice, No. CV 97-959-PA, 1997 WL 728185 (D. Or. Oct. 31, 1997),
both of which followed the Bledsoe opinion. The 11th Circuit reversed Bledsoe, finding that Title II
covered employment claims. See Bledsoe v. Palm Beach County Soil & Water Conservation Dist., 133
F.3d 816, 825 (11th Cir. 1998). The court did not need to delve into the exhaustion problem, since
the lower court had so broadly removed employment claims from Title Il's scope, but did cite a number
of no-exhaustion decisions and agreed that Title II did not require exhaustion. See id. at 824 (citing
Ethridge v. Alabama, 847 F. Supp. 903, 907 (M.D. Ala. 1993)).
127. See Bledsoe, 942 F. Supp. at 1449. Bledsoe's ruling, even if it had not been overturned on
appeal, would be of questionable precedential value because the case was disposed of on a release that
the plaintiff signed with defendants. See id. at 1442; see also Iskander v. Rodeo Sanitary Dist., No.
C-94 0479-SC, 1995 WL 56578, at *9 (N.D. Cal. Feb. 7, 1995) (stating conclusorily that Tide II does
not cover employment), aft'd, 121 F.3d 715 (9th Cir. 1997) (unpublished table decision). But see
Bledsoe, 133 F.3d at 825 (holding squarely that Title II covers employment claims); Doe v. University
of Md. Med. Sys. Corp., 50 F.3d 1261, 1264-65 (4th Cir. 1995) (implying that Title II is available
for employment claimants).
128. Bledsoe, 942 F. Supp. at 1444 & n.4.
129. See id. at 1444.
130. See id. at 1445. The court in Decker overstated the case, suggesting that Tide I would have
become entirely redundant. See Decker, 970 F. Supp. at 579.
19981 Uniform Administrative Exhaustion Requirements 1489
evidence that Title II could not contemplate employment, because the

resulting dual-track enforcement mechanism would "rank as one of the
great drafting debacles of recent times.""' The court then proceeded to
examine the legislative history. The fact of the ADA's ties to the
Rehabilitation Act did not impress the Bledsoe court, which noted the new
tying of Rehabilitation Act standards to Title I of the ADA and argued that
Congress therefore must not have intended to displace Title I as an
employment discrimination remedy.'3 2 It then pointed to a number of
comments by legislators indicating that Congress may not have uniformly
understood Title II to contemplate employment claims, and stated that
where the legislative history conflicts with the language of the statute, the
"clear" text of the statute should be followed.' 33 Further, the clear text
of the statute did not, in the court's view, allow for a contrary
administrative interpretation.' 3 4
The Bledsoe method has attractive features. It is a simple approach
that cleans up the inconsistencies that the no-exhaustion problem creates.
But it is not altogether satisfying. The legislative history seems to indicate
that Congress wanted to end discrimination by governmental units regard-
less of size-a burden they were not willing to foist onto small businesses.
Discrimination lawsuits do not threaten the existence of a small government
the way they might threaten the existence of a small business; small
governments can raise taxes without losing customers, and arguably most
small governmental units are supported by larger units (like states or
departmental bureaucracies). Further, the court in Bledsoe had no coherent
response to the argument that Congress clearly was extending the
Rehabilitation Act's coverage. The Rehabilitation Act contemplates
employment on its face. Simply adding an exhaustion requirement to ADA
Title II employment claims handles the troublesome policy consistency
problems without leaving the employees of small governmental units
helpless. With an exhaustion requirement for Title II employment claims,
small governmental units and large governmental units alike will be entitled
to the benefits of the conciliation process.
B. The JudicialDeference Method

The second method, which I call the judicial deference method, would
allow judges to take Title II employment cases immediately but would
encourage them to use the procedures utilized by the EEOC to resolve
them more quickly if possible. Several courts of appeal have used this
131. Bledsoe, 942 F. Supp. at 1445-46.

132. See id. at 1446.
133. Id. at 1448.
134. See id. at 1448-49.
method in the context of Section 1981 employment discrimination claims

to allow litigants the benefit of conciliation even though plaintiffs were not
required to use CRA Title VII procedures. 35 After all, the rule that an
individual to whom administrative remedies are available must first exhaust
13 6
them before suing in a federal court is a judicially created one.
Judicial discretion controls the doctrine's application where congressional
intent is either unclear or where the fairness of the administrative process
to the complainant is suspect. 3 7 Furthermore, the judicial doctrine of
exhaustion generally requires not only compliance with the particular
administrative process that applies to the statute one first complains under,
38
but also any other appropriate administrative remedies.1
The problem with this method is its lack of predictability. Individual
trial judges would retain the discretion to either grant or deny the various
stays and conciliation orders needed to mimic the Title VII process in the
courtroom setting.'39 Further, any conciliation efforts would occur only
after the courtroom process had begun, so that negotiations would be
necessarily more adversarial than they might otherwise be. Attorneys on
both sides will have to be retained immediately and pleadings will have to
be drafted even to get the Title VII-style process going, driving up costs.
Overseeing the process will consume judicial resources, making the
deference method less advantageous.
C. The "Re-Analysis" Method

I advocate the "re-analysis" method. This method calls on courts to
re-analyze whether a private right of action exists under ADA Title II by
135. See, e.g., Caldwell v. National Brewing Co., 443 F.2d 1044, 1046 (5th Cir. 1971)
(suggesting the use of stays of relief, preliminary injunctions, and assistance by the EEOC to preserve
the Title VII benefits as best as possible); Young v. ITT, 438 F.2d 757, 764 (3d Cir. 1971) (advising
trial courts to "develop ... an accommodation between their jurisdiction under § 1981 and the
conciliation efforts" of the EEOC).
136. See, e.g., McKart v. United States, 395 U.S. 185, 193 (1969) (noting that administrative
exhaustion, "like most judicial doctrines," is subject to various exceptions).
137. See McCarthy v. Madigan, 503 U.S. 140, 144 (1992). Generally, individuals can escape
exhaustion requirements where (1) administrative remedies prejudice subsequent court actions (usually
because of delay), (2) the administering agency cannot grant effective relief, or (3) the administrative
body is biased. See id. at 146-49; Patsy v. Florida Int'l Univ., 634 F.2d 900, 903-04 (5th Cir. 1981),
rev'd sub nom. Patsy v. Board of Regents, 457 U.S. 496 (1982).
138. See, e.g., Hessbrook v. Lennon, 777 F.2d 999, 1003 (5th Cir. 1985).
139. In fact, it might be improper for appellate courts to require district courts to defer to a quasi-
administrative process. The Supreme Court stated in Patsy v. Boardof Regents, 457 U.S. 496 (1982),
that policy arguments alone cannot justify a judicially imposed exhaustion requirement unless it is
consistent with congressional intent. See id. at 513. If one argues that congressional intent favors
exhaustion, the re-analysis method is the more reliable way to meet that intent. If there is no such
intent, then district courts would retain their equitable power to fashion appropriate remedies, and
discretion would govern. But, there is criticism that Patsy was badly reasoned and that policy princi-
ples can prevail. See DAVIS & PIERCE, supra note 23, § 15.9, at 346-47.
consulting the reasoning of the incorporated remedies in the Rehabilitation

Act and CRA Title VI. As previously suggested, I believe that ADA Title
II does not need to provide a private right to employment claimants; they
have an elaborate enforcement mechanism in Title I. 14 Title II would
only provide that right if no other way exists for a court to remedy wrongs
committed under it.
The courts of appeals have construed the Rehabilitation Act to prevent
evasion of administrative remedies under fairly similar circumstances. In
Boyd v. United States Postal Service,' 41 the Ninth Circuit refused to let
a federal employee evade the Title VII-incorporating provisions of the
Rehabilitation Act's Section 501 by filing under Section 504.142 While
Section 504 had been construed to cover employment discrimination
claims, the court ruled that the more specific prohibitions of employment
discrimination in Section 501 should govern. 4 3 Though the court ruled
that employment discrimination claims by federal employees are excluded
under Section 504,'" the court insisted that, even if Section 504 offered
an alternative remedy to Section 501, the court "would feel compelled to
read into that remedy the same exhaustion requirements of Title VII of the
Civil Rights Act of 1964 that apply under Section 501." " In doing so,
they drew from the experience of the Seventh Circuit, which had previ-
ously refused to read two alternate sets of remedies for the same brands of
discrimination-one requiring exhaustion, the other not.'"
140. See supra subpart II(A).

141. 752 F.2d 410 (9th Cir. 1985).
142. See id. at 413.
143. See id.
144. While this does seem similar to the Bledsoe resolution, there are important differences.
Bledsoe dealt with the question of ADA applicability to state and local governments. See Bledsoe v.
Palm Beach Soil & Water Conservation Dist., 942 F. Supp. 1439, 1443 (S.D. Fla. 1996), rev'd, 133
F.3d 816 (11 th Cir. 1998). Boyd dealt with a claim by a federal employee who would not have been
covered by § 504 but for a 1978 amendment extending it to the Postal Service. See Boyd, 752 F.2d
at 413. It made sense for the Boyd court to say that § 504 coverage of the covered agencies in § 501
would be entirely redundant-as the Bledsoe court wanted to, but ultimately could not, do. See
Bledsoe, 942 F. Supp. at 1445 ("Although Title I is not rendered entirely redundant by allowing an
employment cause of action under Tide II, it is rendered redundant insofar as it applies to public
entities with 15 or more employees." (emphasis in original)). In the case of the ADA, however, there
are public employers under Tide II who are not covered under Tide I. Therefore, to simply call
employment claims uncognizable under Title II would be to foreclose claims by plaintiffs who appear
to be within the scope of the statute.
145. Boyd, 752 F.2d at 413.
146. See McGuinness v. United States Postal Serv., 744 F.2d 1318, 1321 (7th Cir. 1984). The
McGuinness court stated:
Tide VI remedies-which involve things like cutting off federal funds to the
discriminator-are not designed to help individuals. But that is beside the point. The
point is that it would make no sense for Congress to provide ... different sets of
remedies, having different exhaustion requirements, for the same wrong committed by the
same employer; and there is no indication that Congress wanted to do this-as of course
The Supreme Court also has taken a turn at preventing a Rehabilitation

Act Section 504 right from emasculating an administrative remedy envi-
sioned by Congress. In Smith v. Robinson,147 the Court refused to allow
a plaintiff's attempt to file under Section 504 when doing so only served
to evade the administrative exhaustion requirements of the Education of the
Handicapped Act (EHA).'" The Court noted that the substantive
requirements of both laws were similar as applied to the facts and decided
1 49
that there was no evident intent to allow administrative circumvention.
The same analysis applies to the ADA where Congress has made the sub-
stantive standards of the major disability acts uniform. In particular, the
Smith Court chose not to read a provision that other, prior rights would not
be limited by the EHA as providing a shortcut past the EHA's admin-
istrative system. 5 This serves to answer the concern that requiring
exhaustion might limit the rights of those government employees who were
able to bring nonexhausted claims under the Rehabilitation Act prior to the
5
ADA's implementation.'1
Therefore, the most sensible way to solve the exhaustion problem is
to allow public employees the remedies they need and that the ADA
provides-but no more. Congress intended for the CRA Title VII method
to be the primary course of action for aggrieved employees, whether public
or private, and failed to affirmatively grant a private right of action to
public employees. Thus, the judiciary should not create a private right of
action except where the administrative processes of CRA Titles VI and VII
are inadequate to solve the problems of public employees. All public
employees, no matter the size of the entity they work for, are entitled to
the CRA Title VII complaint mechanism and the subsequent courtroom
it could do regardless of what might seem sensible to us-when it added section 505 in
1978.
Id. (citations omitted). The court declined to adopt a view making Section 504 inapplicable to federal
employment claims-it simply decided to "assimilateD" the non-exhausting Section to the exhausting
one. Id. at 1321-22.
147. 468 U.S. 992 (1984).
148. See id. at 1019-20 ("There is no suggestion that § 504 adds anything to petitioners'
substantive right to a free appropriate public education. The only elements added by § 504 are the
possibility of circumventing EHA administrative procedures and going straight to court with a § 504
claim [and additional damage claims]." (footnote omitted)). Following Smith to this effect were Irving
Indep. Sch. Dist. v. Tatro, 468 U.S. 883, 895-96 (1984), and Georgia Ass'n of Retarded Citizens v.
McDaniel, 740 F.2d 902, 902-03 (11th Cir. 1984). Congress amended the EHA in 1986 to make it
non-exclusive, however.
149. See Smith, 486 U.S. at 1019 ("We are satisfied that Congress did not intend a handicapped
child to be able to circumvent the requirements or supplement the remedies of the EHA by resort to
the general antidiscrimination provision of § 504.").
150. See id. at 1012 & n. 16 ("In this case, we think Congress' intent is clear. Allowing a plaintiff
to circumvent the EHA administrative remedies would be inconsistent with Congress' carefully tailored
scheme. The legislative history gives no indication that Congress intended such a result.").
151. See supra notes 75-81 and accompanying text.
rights. Therefore, no need exists to either imply a private right of action

or investigate legislative history to seek one out.
V. Conclusion
Title VII of the CRA invoked administrative remedies with good
reason: Not all discrimination needs to be litigated for years in courts.
Much litigation can be ameliorated with negotiation and conciliation by
simply alerting employers to the needs of the people they hire or choose
not to hire. The Title VII process worked so effectively that Congress
decided to offer its protections to the disabled under the ADA and to apply
that remedy to virtually all employers, private or public. To offer public
employees a way around this time-tested and practical process frustrates the
congressional intent by exchanging the cooperative spirit of the admin-
istrative method with the hostility of the courtroom adversary process.
There ought to be clear reasons to operate against the spirit of the ADA
and the more advantageous path for public policy considerations. The
courts can restore the sensible and fair system that the ADA created by
requiring of public employees exactly what the ADA requires of them-
exactly what the ADA requires of everyone else.
-Jason Powers

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Employment Discrimination Claims Under ADA

Two old business-school buddies, one an accountant, the other a

Congress, perhaps intimidated by the daunting task of constructing

1. Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213 (1994).

The CRA's Title VII enforcement scheme begins with an administrative

6. 818 F. Supp. 1276 (W.D. Wis. 1993).

9. See id. at 1278.

Worse yet, Petersen'sbest reason for giving ADA Title II claimants

II. The Language of the ADA

A. Remedies Under ADA Title I-Employment

16. See Petersen, 818 F. Supp at 1279.

EEOC and assigned it the duty of investigating and resolving charges of

Arkansas asked Senator Harkin of Iowa about administrative remedies

[Tjhe employment provisions of title I make available the

B. Remedies Under Title II-Public Services

effectuate the antidiscrimination provisions of the Act and may terminate

action under Title VI to its descendant statute, the Rehabilitation Act."

The ADA's Title II incorporates the enforcement mechanisms of the

Steny Hoyer of Maryland discussed the question of remedies against state

• . . As in title I, the intent of the change is simply to clarify

enforcement scheme, it would have to incorporate the predecessor statutes

employers in Title I. Unfortunately, Congress did not appear to be focused

"comprehensive remedial scheme" of CRA Title VII could not be circum-

C. ConstructionRules Found in the ADA

72. Lakoski, 66 F.3d at 755.

hearings on remedies suggest that the advantages or disadvantages of

Ms. VAN HIGHTOWER. Well, I think that is true. I would hope

Mr. [ROBERT] MOSBACHER [JR., Chairman of the Texas Department of Human

Finally, the ADA expresses a preference for alternative dispute

III. Regulations Under the ADA and Associated Laws

89. See id. § 1601.28(a)(2).

B. Deference to the Regulatory Posture

v. NaturalResources Defense Council" holds that the resulting regulations

99. 467 U.S. 837 (1984).

105. Id. at 843 & n.ll.

congressional intent to exempt under-fifteen-employee public entities and

109. See id.

Interpreting the language, the Committee arguably says: (1) We want

employment." 9 The notion of a private right of action without exhaustion

C. Interpreting the Regulatory Posture

mechanisms subpart of the regulations provides a filing system for

IV. Returning to Rational Remedies

A. The Bledsoe Method

evidence that Title II could not contemplate employment, because the

B. The JudicialDeference Method

131. Bledsoe, 942 F. Supp. at 1445-46.

method in the context of Section 1981 employment discrimination claims

C. The "Re-Analysis" Method

consulting the reasoning of the incorporated remedies in the Rehabilitation

140. See supra subpart II(A).

The Supreme Court also has taken a turn at preventing a Rehabilitation

rights. Therefore, no need exists to either imply a private right of action

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