Southern district of alabama southern division

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For the reasons set forth above, Title I of the ADA should be sustained as a valid exercise of Congress' powers under the Fourteenth Amendment and the Commerce Clause.

Respectfully submitted,


United States Attorney Assistant Attorney General

Southern District of Alabama Civil Rights Division






Disability Rights Section

Civil Rights Division

U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

(202) 514-6016

1  Title I of the ADA requires public employers to provide reasonable accommodations for the known disabilities of job applicants, including the "appropriate adjustment or modifications of examinations." 42 U.S.C. §§ 12111(9)(B); 12112(a); 12112(5)(A). Providing an oral, rather than written, examination to an otherwise qualified job applicant with a learning disability is the type of accommodation required under the statute unless the employer can show that this would impose an "undue hardship." 42 U.S.C. § 12112(5)(A). Cf. Stutts v. Freeman, 694 F.2d 666 (11th Cir. 1983) (suit under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794) (failure to hire dyslexic individual for position of heavy equipment operator, because of applicant's failure to pass written examination, without provision of alternative oral exam or adjustment of entry requirements that would have accommodated applicant's dyslexia, discriminates on the basis of disability).

2  In order to uphold the constitutionality of Title I, the Court need not reach the Commerce Clause issue, if it finds the statute authorized under the Fourteenth Amendment.

3  See also Rotunda & Nowak, Treatise on Constitutional Law: Substance and Procedure, 2nd ed. § 16.1, at 524:
. . . actions of any governmental entity give rise to state action for the purposes of constitutional limitations. Any subdivision of a state, . . . such as a city, represents government or state authority to a sufficient degree to invoke constitutional restrictions on its actions.

4  See also Flores v. City of Boerne, 73 F.3d 1352, 1358-61 (5th Cir. 1996)(upholding enactment of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq., as valid exercise of Congress' Section 5 powers, despite the Supreme Court's holding in Employment Div., Dep't of Human Resources v. Smith, 494 U.S. 872 (1990), reh'g denied, 496 U.S. 913 (1990), that the First Amendment does not bar application of a facially neutral, generally applicable law to religiously motivated conduct); Ramirez v. Puerto Rico Fire Service, 715 F.2d 694 (1st Cir. 1983) (upholding the Age Discrimination in Employment Act, 29 U.S.C. § 626(b), as a valid exercise of Congress' Section 5 powers despite the Supreme Court's holding in Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976), that a state mandatory retirement law did not violate the Equal Protection Clause); E.E.O.C. v. Elrod, 674 F.2d 601, 608-09 n.6 (7th Cir. 1982)(same).

5  See, e.g., Craig v. Boren, 429 U.S. 190 (1976); Frontiero v. Richardson, 411 U.S. 677 (1973).

6  See, e.g., Oyama v. California, 332 U.S. 633 (1948).

7  See, e.g., Plyler, 457 U.S. 202; Graham v. Richardson, 403 U.S. 365 (1971).

8  See, e.g., Cleburne, 473 U.S. 432.

9  See, e.g., Griffin v. Illinois, 351 U.S. 12 (1956).

10  See, e.g., Mills v. Habluetzel, 456 U.S. 91 (1982); Matthews v. Lucas, 427 U.S. 495 (1976).

11  See, e.g., Zobel v. Williams, 457 U.S. 55 (1982).

12  See, e.g., Quinn v. Millsap, 491 U.S. 95 (1989).

13  See, e.g., United States Dep't of Agriculture v. Moreno, 413 U.S. 528 (1973).

14  The only question before this Court is whether Congress has the authority to reach the discriminatory conduct of public

-- not private -- employers under Title I of the ADA.

15  Cf. Ramirez v. Puerto Rico Fire Service, 715 F.2d 694, 699-700 (1st Cir. 1983) (Age Discrimination in Employment Act may be regarded as an enactment to enforce the Equal Protection Clause); E.E.O.C. v. County of Calumet, 686 F.2d 1249, 1252-53 (7th Cir. 1982) (same); Scott v. City of Anniston, 597 F.2d 897, 900 (5th Cir. 1979) (Title VII of the 1964 Civil Rights Act may be regarded as an enactment to enforce the Equal Protection Clause), cert. denied, 446 U.S. 917 (1980); United States v. New Hampshire, 539 F.2d 277, 280-81 (1st Cir. 1976) (same), cert. denied, 429 U.S. 1023 (1976).

16  Cf. Ramirez, 715 F.2d at 699-70; County of Calumet, 686 F.2d at 1252-53; Scott, 597 F.2d at 900; New Hampshire, 539 F.2d at 280-81.

17  Cf. Ramirez, 715 F.2d at 699-70; County of Calumet, 686 F.2d at 1252-53; Scott, 597 F.2d at 900; New Hampshire, 539 F.2d at 280-81.

18  Three courts have rejected constitutional challenges to Title III of the Act, 42 U.S.C. §§ 12181-89, which prohibits disability discrimination in privately owned places of public accommodation and commercial facilities. See Abbott v. Bragdon, 912 F. Supp. 580, 592-94 (1995) (upholding Title III's application to a private dental practice); United States v. Morvant, 898 F. Supp. 1157, 1167 (E.D. La. 1995)(same); Pinnock v. International House of Pancakes Franchisee, 844 F. Supp. 574, 579 (S.D.Cal. 1993)(upholding Title III's application to a restaurant), cert. denied, 114 S. Ct. 2726 (1994). Title III was enacted pursuant to Congress' power under the Commerce Clause. Abbott specifically considered and rejected the argument that Title III exceeded Congress' authority under the Commerce Clause under the standards set forth in United States v. Lopez, 115 S. Ct. 1624 (1995). Abbott, 912 F. Supp. at 592-94.

19  Indeed, in discussing Title I's enforcement provisions, Congress stated that the ADA's prohibitions are "designed to provide civil rights protections for persons with disabilities parallel to those available to minorities and women." H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 3 at 48 (1990).

20  In its recent decision in Seminole Tribe of Florida v. Florida, 116 S.Ct. 1114 (1996), the Supreme Court indicated that Congress enjoys greater power under the Fourteenth Amendment vis-a-vis States than it does under the Commerce Clause. Id. at 1125, 1128, 1131. The Court, citing Fitzpatrick, recognized Congress' power under the Fourteenth Amendment to abrogate the States' Eleventh Amendment immunity, but expressly overruled Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989), in which a plurality had ruled that Congress could also abrogate Eleventh Amendment immunity of the States in Commerce Clause legislation. Id. at 1128. Seminole has no application in this case, however, because cities do not enjoy Eleventh Amendment immunity. Mt. Healthy City School District Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977).

21  See 42 U.S.C. §§ 2000e(g), 2000e(h):

The term "commerce" means trade, traffic, commerce, transportation, transmission, or communication among the several States; or between a State and any place outside thereof; or within the District of Columbia, or a possession of the United States; or between points in the same State but through a point outside thereof.

The term "industry affecting commerce" means any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce and includes any activity or industry "affecting commerce" within the meaning of the Labor-Management Reporting and Disclosure Act of 1959, and further includes any governmental industry, business or activity.
See also Polish Nat'l Alliance of the United States of North America v. NLRB, 322 U.S. 643, 647 (1944) (when Congress "wants to bring aspects of commerce within the full sweep of its constitutional authority, it manifests its purpose by regulating not only 'commerce' but also matters which 'affect,' interrupt,' or 'promote' interstate commerce").

22  The Eleventh Circuit recently rejected a Lopez challenge to the Freedom of Access to Clinic Entrances Act ("Access Act"), 18 U.S.C. § 248. Cheffer v. Reno, 55 F.3d 1517 (11th Cir. 1995). The Court held that even after Lopez, Congress' findings "provide a rational basis for concluding that the Access Act regulates activity [the provision of reproductive health services] which 'substantially affects' interstate commerce," and that "the Access Act is a constitutional exercise of Congress' power under the Commerce Clause." Id. at 1521.

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