The Americans with Disabilities Act: Who Isn't Covered?

The Americans with Disabilities Act, 104 Stat. 337, 42 U.S.C. [subsections] 12101 et seq., was enacted on July 26, 1990 and became effective in July of 1992. The purpose of the Act is to prevent discrimination against individuals with disabilities. The law is being implemented by regulations issued by the United States Department of Justice and enforced by lawsuits by both the Department of Justice and private citizens. While the goal of a more inclusive society is attractive, the wording of the Act has created problems. One difficulty is that the definition of disabled is not clear. Congress did not list in the language of the Act the different types of disabilities which are covered. Instead, whether or not a particular physical difficulty rises to the level of a is decided on a case by case basis. Some instances fit within a societal definition of -- individuals required by physical limitations to use a wheelchair or individuals with conditions which limit their abilities to see or hear, for instance. These types of are easy to identify as subject to the Act. Other types of disabilities are more often subject to question and these are the ones decided on a case by case basis. A second problem is deciding who may sue under the Act. There are five Titles within the Act. Of concern here is Title Two, which governs the application of the Americans with Disabilities Act to state and local governments. Within Title Two, the following definitions are given: (2) Qualified individual with a disability.--The term individual with a disability means an individual with a who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities by a public entity. and Subject to the provisions of this subchapter, no qualified individual with a shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. The application of the Act would seem to be straightforward. Those citizens receiving services or benefits through the activities of state and local governments may not be discriminated against on the basis of the citizens' disabilities. At first glance, it would appear that the individual making the claim of discrimination must be seeking the services or benefits which are being distributed by the government and that some level of voluntariness in taking advantage of the service might be required. Such a reading would, however, deprive some individuals the protections offered by the Americans with Disabilities Act. For instance, this interpretation of the Act would rather swiftly remove most of the services provided to inmates of penal institutions. Indeed, many of the core functions of the state government might be considered off limits to the protections offered by the Americans with Disabilities Act, as the State often has the responsibility of providing services to individuals who do not seek them out (involuntary commitment to a facility being the purest example). The questions of status of the individual and the voluntary nature of receipt of services are answered by the Ninth Circuit Court of Appeals in Armstrong v. Wilson, 124 F.3d 1019 (CA.), the United States Supreme Court in Pennsylvania Department of Corrections v. Yeskey, 118 S.Ct. 1952, and the Eighth Circuit Court of Appeals in Gorman v. Bartch et al., 1998 WL 498601 (Mo.) These cases are discussed below in chronological order. The implications of these rulings and the development of the logic guiding the ruling of the courts for public administrators and State and local governments will be raised following the discussion of the cases. …