Tenth Circuit: Employee Cannot Sue State under Public Services Section of ADA

In 2001, the U.S. Supreme Court ruled that suits against state government entities under Title I of the Americans with Disabilities Act (ADA), prohibiting employment discrimination, were barred by sovereign immunity. Board of Trustees of the University of Alabama v. Garrett (2001).  This meant that only injunctive relief was available as a remedy (i.e., no money). Since then, state employees have attempted to bring employment discrimination suits under Title II of the ADA, which prohibits discrimination in public services. 

This issue recently came before the Tenth Circuit Court of Appeals, which joined the Third, Sixth, and Ninth Circuits, in holding that employment discrimination claims cannot be brought under Title II of the ADA, either. Currently, only the Eleventh Circuit recognizes the possibility of employment discrimination claims under Title II. 

The issue arose in a suit brought by former office worker, Judy Elwell, who sued the University of Oklahoma for failing to accommodate her degenerative spinal disc condition and for firing her because of her disability. Elwell v. Oklahoma ex rel. Board of Regents of University of Oklahoma (10th Cir. 2012).

The Tenth Circuit rejected Elwell’s argument that Title I and Title II create “overlapping” causes of action for employment discrimination. Instead, the court held that each title “does important independent work.” Despite Elwell’s assertion to the contrary, the court found that Title I, not Title II, is clearly the section of the ADA intended to deal with employment bias. The court said that even if it did hold that Title II prohibited employment bias, the same sovereign immunity arguments that bar actions under Title I would apply. 

This split in the circuits may eventualy be resolved by the U.S. Supreme Court. Until then, this decision resolves the question for state entities in Colorado, Wyoming, Utah, Kansas, New Mexico, and Oklahoma.