2. Case Law Regarding Earlier Civil Rights Statutes Further Supports the Conclusion that Congress had the Authority to Enact Title I Under the Fourteenth Amendment To the best of the government's knowledge, this is the first case in which the constitutionality of Title I has been drawn into question.18With respect to Title I, case law under earlier civil rights statutes supports the argument that Congress properly invoked its authority under the Fourteenth Amendment to prohibit disability-based employment discrimination by State and local governments.
It is well established that the 1972 amendments to Title VII, which extended that statute's coverage to State and local government employers, are properly grounded in Section 5. Fitzpatrick v. Bitzer, 427 U.S. 445, 453-56, & 453 n.9 (1976). SeealsoFreeman v. Michigan Dep't of State, 808 F.2d 1174, 1177 (6th Cir. 1987); Scott v. City of Anniston, 597 F.2d 897, 900 (5th Cir. 1979), cert. denied, 446 U.S. 917 (1980); United States v. Gregory, 818 F.2d 1114, 1119 (4th Cir. 1987), cert. denied 484 U.S. 847 (1987); Shawer v. Indiana University of Pennsylvania, 602 F.2d 1161, 1163-64 (3d Cir. 1979); United States v. New Hampshire, 539 F.2d 277, 280-81 (1st Cir. 1976), cert. denied, 429 U.S. 1023 (1976). Just as Title VII's coverage of State and local governments is a valid exercise of Congress' Section 5 powers, so too is Title I's, whose enforcement provisions are directly patterned after Title VII. See H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 3 at 31, 48 (1990).19
A similar analysis was considered and adopted by the courts in determining whether the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 521 et seq., was a valid exercise of Congress' Section 5 powers in prohibiting discrimination by public employers. The courts noted ADEA's similarities to Title VII and found that prior rulings upholding Title VII's constitutionality were persuasive authority for upholding ADEA as well. SeeRamirez v. Puerto Rico Fire Service, 715 F.2d 694, 700 (1st Cir. 1983); E.E.O.C. v. County of Calumet, 686 F.2d 1249, 1253 (7th Cir. 1982); E.E.O.C. v. Elrod, 674 F.2d 601, 607 (7th Cir. 1982); Arritt v. Grisell, 567 F.2d 1267, 1270-71 (4th Cir. 1977). As the First Circuit stated: "The striking substantive similarity between the two acts militates strongly in favor of the conclusion that the identical reservoir of congressional power was the well-spring for both." Ramirez, 715 F.2d at 700.
Further support for Title I's constitutionality can be found in the constitutionality of Section 504 of the Rehabilitation Act ("Section 504"), 29 U.S.C. § 794, which prohibits discrimination on the basis of disability by programs and activities receiving federal financial assistance. The substantive provisions of Title I are modeled after Section 504. H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 3 at 31 (1990). The Supreme Court has noted that Section 504 also was enacted pursuant to Congress' enforcement authority under the Fourteenth Amendment. SeeWelch v. Texas Dep't of Highways & Public Transp., 483 U.S. 468, 472 n.2 (1987), citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 244 n.4 (1985).