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Notes
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
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).
1460 Texas Law Review [Vol. 76:1457
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
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.
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).
1464 Texas Law Review [Vol. 76:1457
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
1998] Uniform Administrative Exhaustion Requirements 1465
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.").
1466 Texas Law Review [Vol. 76:1457
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....
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
1998] Uniform Administrative Exhaustion Requirements 1467
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.
1468 Texas Law Review [Vol. 76:1457
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.
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).
1998] Uniform Administrative Exhaustion Requirements 1469
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
1470 Texas Law Review [Vol. 76:1457
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.
1998] Uniform Administrative Exhaustion Requirements 1471
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).
1472 Texas Law Review [Vol. 76:1457
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.
1998] Uniform Administrative Exhaustion Requirements 1473
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.
1474 Texas Law Review [Vol. 76:1457
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.
1998] Uniform Administrative Exhaustion Requirements 1475
... [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.
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,
1478 Texas Law Review [Vol. 76:1457
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).
1998] Uniform Administrative Exhaustion Requirements 1479
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
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.
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).
1998] Uniform Administrative Exhaustion Requirements 1481
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
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).
1998] Uniform Administrative Exhaustion Requirements 1485
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).
1486 Texas Law Review [Vol. 76:1457
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).
1998] Uniform Administrative Exhaustion Requirements 1487
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).
1488 Texas Law Review [Vol. 76:1457
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
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.
1998] Uniform Administrative Exhaustion Requirements 1491
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.
1998] Uniform Administrative Exhaustion Requirements 1493
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