No. 97-2780

IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MAJOR ROGERS,

Plaintiff-Appellant

v\.

DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL;

SOUTH CAROLINA BUDGET AND CONTROL BOARD,

Office of Insurance Services,

Defendant-Appellee

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

BILL LANN LEE

Acting Assistant

Attorney General

MARK L. GROSS

MARIE K. McELDERRY

Attorneys

Department of Justice

P.O. Box 66078

Washington, D.C. 20035-6078

\(202\) 514-3068

**TABLE OF CONTENTS**

**PAGE**

INTEREST OF THE UNITED STATES 1

STATEMENT OF THE CASE 2

> 1\. Statutory Scheme 2
>
> 2\. Facts 3
>
> 3\. The Decision of the District Court 5

SUMMARY OF ARGUMENT 6

ARGUMENT:

> TITLE II OF THE ADA REACHES EMPLOYMENT\
> PRACTICES OF PUBLIC ENTITIES 7
>
> A. Employment Coverage Is Clear From\
> The Plain Language And Structure Of\
> Title II 9
>
> 1\. Section 202 9
>
> 2\. Section 204 12
>
> B. The Legislative History Of Title II\
> Demonstrates That Congress Intended\
> To Prohibit Employment Discrimination 12
>
> C. The District Court Decisions Relied\
> Upon By Appellees Contain Erroneous\
> Analyses And Should Not Be Followed 15
>
> D. Section 107(a) Of The ADA, 42 U.S.C.\
> 12117(a), Does Not Require A Title II\
> Complainant To Exhaust The Administrative\
> Remedies Provided In Title I 19

CONCLUSION 26

**TABLE OF AUTHORITIES**

**CASES:** **PAGE**

[Administrator, Fed. Aviation Admin.]{.underline} v.
[Robertson]{.underline},

422 U.S. 255 (1975) 23

[Beecham]{.underline} v. [United States]{.underline}, 511 U.S. 368
(1994) 20

[Bell]{.underline} v. [Retirement Bd. of Firemen's Annuity & Benefit
Fund of]{.underline}

[Chicago]{.underline}, No. 92-C-5197, 1993 WL 398612

(N.D. Ill. Oct. 6, 1993) 8

[Benedum]{.underline} v. [Franklin Township Recycling Ctr.]{.underline},
No. 95-1343,

1996 WL 679402 (W.D. Pa. Sept. 12, 1996) 8

[Bledsoe]{.underline} v. [Palm Beach County Soil & Water Conservation
Dist.]{.underline},

942 F. Supp. 1439 (S.D. Fla. 1996) [passim]{.underline}

[Bledsoe]{.underline} v. [Palm Beach County Soil & Water Conservation
Dist.]{.underline},

133 F.3d 816 (11th Cir. 1998) [passim]{.underline}

[Bruton]{.underline} v. [Southeastern Pa. Transp. Auth.]{.underline},
No. 94-CV-3111,

1994 WL 470277 (E.D. Pa. Aug. 19, 1994) 8, 18

[Cannon]{.underline} v. [University of Chicago]{.underline}, 441 U.S.
677 (1979) 21, 22

[Chevron U.S.A., Inc.]{.underline} v. [Natural Resources
Defense]{.underline}

[Council, Inc.]{.underline}, 467 U.S. 837 (1984) 24

[Consolidated Rail Corp.]{.underline} v. [Darrone]{.underline},

465 U.S. 624 (1984) 6, 10, 11, 21

[Davoll]{.underline} v. [Webb]{.underline}, 943 F. Supp. 1289 (D. Colo.
1996) 8

[Decker]{.underline} v. [University of Houston]{.underline}, 970 F.
Supp. 575 (S.D. Tex.

1997), appeal pending, No. 97-20502 (5th Cir.) [passim]{.underline}

[Department of Revenue]{.underline} v. [ACG Indus.]{.underline}, 510
U.S. 332 (1994) 22

[Dertz]{.underline} v. [City of Chicago]{.underline}, 912 F. Supp. 319
(N.D. Ill. 1995) 25

[Doe]{.underline} v. [University of Maryland Med. Sys.
Corp.]{.underline},

50 F.3d 1261 (4th Cir. 1995) 5, 8

[Dominguez]{.underline} v. [City of Council Bluffs]{.underline}, 974 F.
Supp. 732

(S.D. Iowa 1997) 8

**CASES (continued): PAGE**

[Eisfelder]{.underline} v. [Michigan Dep't of Natural
Resources]{.underline},

847 F. Supp. 78 (W.D. Mich. 1993) 8

[Ethridge]{.underline} v. [Alabama]{.underline}, 847 F. Supp. 903 (M.D.
Ala. 1993) 8, 13

[Ethridge]{.underline} v. [Alabama]{.underline}, 860 F. Supp. 808 (M.D.
Ala. 1994) 3, 8, 25

[Finley]{.underline} v. [Giacobbe]{.underline}, 827 F. Supp. 215
(S.D.N.Y. 1993) 8

[Garcia]{.underline} v. [United States]{.underline}, 469 U.S. 70 (1984)
23

[Graboski]{.underline} v. [Giuliani]{.underline}, 937 F. Supp. 258
(S.D.N.Y. 1996),

aff'd on other grounds, 142 F.3d 58 (2nd Cir. 1998) 8

[Holbrook]{.underline} v. [City of Alpharetta]{.underline}, 112 F.3d
1522

(11th Cir. 1997) 8

[Innovative Health Systems, Inc. v. City of White Plains]{.underline},

117 F.3d 37 (2d Cir. 1997) 11

[North Haven Bd. of Educ.]{.underline} v. [Bell]{.underline},

456 U.S. 512 (1982) 6, 7, 9, 10

[Parker]{.underline} v. [Metropolitan Life Ins. Co.]{.underline}, 121
F.3d 1006

(1997), cert. denied, 118 S. Ct. 871 (1998) 5

[Petersen]{.underline} v. [University of Wis. Bd. of
Regents]{.underline},

818 F. Supp. 1276 (W.D. Wis. 1993) 3, 8, 18, 25

[Pierpont]{.underline} v. [Barnes]{.underline}, 94 F.3d 813 (2d Cir.
1996), cert. denied,

117 S. Ct. 1691 (1997) 15

[Rogers]{.underline} v. [Department of Health & Envtl.
Control]{.underline},

985 F. Supp. 635 (D.S.C. 1997) 5

[Saylor]{.underline} v. [Ridge]{.underline}, 989 F. Supp. 680 (E.D. Pa.
1998). 8

[Silk]{.underline} v. [City of Chicago]{.underline}, No. 95-C-0143, 1996
WL 312074

(N.D. Ill. June 7, 1996) 8, 20, 22, 25

[United Sav. Ass'n]{.underline} v. [Timbers of Innwood Forest
Assocs.]{.underline},

484 U.S. 365, (1988) 22-23

[Wagner]{.underline} v. [Texas A & M Univ.]{.underline}, 939 F. Supp.
1297

(S.D. Tex. 1996) 3, 8, 20

**CASES (continued): PAGE**

[Winfrey]{.underline} v. [City of Chicago]{.underline}, 957 F. Supp.
1014

(N.D. Ill. 1997) 20

[Zimmerman v. Oregon Dep't of Justice]{.underline}, 983 F. Supp. 1327

(D. Ore. 1997), appeal pending,

No. 97-36101 (9th Cir.) 2, 15, 16

[Zuber]{.underline} v. [Allen]{.underline}, 396 U.S. 168 (1969) 15

**STATUTES:**

Americans With Disabilities Act (ADA),

42 U.S.C. 12101(b)(1) 2

Title I:

42 U.S.C. 12111(5)(B) 2

42 U.S.C. 12112(b) (§ 102(b)) 13

42 U.S.C. 12112(c) (§ 102(c)) 13

42 U.S.C. 12116 20

42 U.S.C. 12117(a) (§ 107(a)) [passim]{.underline}

Title II:

42 U.S.C. 12131-12134 1

42 U.S.C. 12132 (§ 202) [passim]{.underline}

42 U.S.C. 12133 (§ 203) 14, 20, 21, 23

42 U.S.C. 12134 (§ 204) 6, 12, 13, 23

42 U.S.C. 12134(b) (§ 204(b)) 12, 22

Title V:

42 U.S.C. 12201(b) 22

42 U.S.C. 12201(c) 4

42 U.S.C. 12209 (§ 509) 21

42 U.S.C. 12209(a)(3) 21

42 U.S.C. 12209(b)(2)(B) 21

Civil Rights Act of 1964,

Title VI:

42 U.S.C. 2000d - 2000d-4 3, 10

Title VII:

42 U.S.C. 2000e(b) 2

42 U.S.C. 2000e-5 2

42 U.S.C. 2000e(f) 25

**STATUTES (continued): PAGE**

Education Amendments of 1972, Title IX,

20 U.S.C. 1681 [et]{.underline} [seq.]{.underline} 6, 9

§ 901(a) 9, 10

Rehabilitation Act of 1973,

29 U.S.C. 791 (§ 501) 21

29 U.S.C. 794(a) (§ 504) [passim]{.underline}

29 U.S.C. 794a (§ 505) 3

29 U.S.C. 794a(a)(1) (§ 505(a)(1)) 21

29 U.S.C. 794a(a)2 (§ 505(a)(2)) 3, 21

Congressional Accountability Act of 1995 (CAA),

2 U.S.C. 1301 [et]{.underline} [seq.]{.underline} 19, 21

2 U.S.C. 1331(d) 21

2 U.S.C. 1384(d)(3) 19

§ 201(c)(3) 21

Government Employees Rights Act of 1991 (GERA),

2 U.S.C. 1201-1220 25, 26

2 U.S.C. 1220 25

**REGULATIONS:**

28 C.F.R. 35.140 24

28 C.F.R. 35.140(b)(1) 25

28 C.F.R. 35.190 16

28 C.F.R. Pt. 35, App. A, § 35.172 24

28 C.F.R. Pt. 35, App. A, Subpt. C 18

28 C.F.R. 41.5 22

28 C.F.R. 41.52-41.55 12

29 C.F.R. Pt. 1641 25

56 Fed. Reg. 8545 (Feb. 28, 1991) 13

**LEGISLATIVE HISTORY:**

S. Rep. No. 101-116, 101st Cong., 1st Sess. (1989) 17, 23

H.R. Rep. No. 101-485(II), 101st Cong., 2d Sess. (1990)
[passim]{.underline}

H.R. Rep. No. 101-485(III), 101st Cong., 2d Sess. (1990) 14

IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 97-2780

MAJOR ROGERS,

Plaintiff-Appellant

v\.

DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL;

SOUTH CAROLINA BUDGET AND CONTROL BOARD,

Office of Insurance Services,

Defendant-Appellee

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

Title II of the Americans With Disabilities Act (ADA), 42 U.S.C.
12131-12134, prohibits discrimination on the basis of disability by
public entities. The Attorney General has promulgated regulations to
implement Title II that prohibit public entities from discriminating
against qualified persons by reason of disability in employment
practices. Appellees have raised as an alternative ground for affirmance
of the district court\'s decision the argument that Title II does not
prohibit discrimination in employee benefits. If this Court reaches that
issue, its decision could have a significant impact upon the Attorney
General\'s enforcement responsibilities.

The United States has filed briefs as amicus curiae on this issue in
[Bledsoe]{.underline} v. [Palm Beach County Soil & Water
Conservation]{.underline} District, 133 F.3d 816 (11th Cir. 1998),
[Decker]{.underline} v. [University of Houston]{.underline}, No.
97-20502 (5th Cir.); and [Zimmerman]{.underline} v. [Oregon Dep't of
Justice]{.underline}, No. 97-36101 (9th Cir.).

STATEMENT OF THE CASE

1\. [Statutory Scheme]{.underline}. The ADA was intended to \"provide a
clear and comprehensive national mandate for the elimination of
discrimination against individuals with disabilities.\" 42 U.S.C.
12101(b)(1). The Act is divided into five titles.[^1]

Title I prohibits discrimination on the basis of disability by
employers, including governments, governmental agencies, and political
subdivisions, who are engaged in an industry affecting commerce and who
have 15 or more employees for each working day in each of 20 or more
calendar weeks.[^2] In accordance with Section 107(a) of the ADA, 42
U.S.C. 12117(a), enforcement of Title I parallels that of Title VII of
the Civil Rights Act of 1964, including the requirement that persons
alleging discrim-ination file a charge with the EEOC. See 42 U.S.C.
2000e-5.

Title II basically extends the protections provided by Section 504 of
the Rehabilitation Act of 1973[^3] to all programs, activities, and
services of state or local governments or instrumentalities or agencies
thereof, regardless of whether such entities receive Federal financial
assistance. H.R. Rep. No. 101-485(II), 101st Cong., 2d Sess. 84 (1990);
[Ethridge]{.underline} v. [Alabama]{.underline}, 860 F. Supp. 808, 812
n.6 (M.D. Ala. 1994); [Wagner]{.underline} v. [Texas A & M
Univ.]{.underline}, 939 F. Supp. 1297, 1309 (S.D. Tex. 1996). Title II
states (42 U.S.C. 12132):

> \[N\]o qualified individual with a disability 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.

Persons alleging discrimination under this section of the Act have the
remedies, procedures, and rights set forth in Section 505 of the
Rehabilitation Act, 29 U.S.C. 794a.[^4] See [Petersen]{.underline} v.
[University of Wis. Bd. of Regents]{.underline}, 818 F. Supp. 1276, 1278
(W.D. Wis. 1993).

2\. [Facts]{.underline}. Plaintiff Major Roberts was employed by the
South Carolina Department of Health and Environmental Control (DHEC) for
approximately 22 years as a maintenance engineer.[^5] His employment
benefits included a Long Term Disability Plan and a pension plan.

Plaintiff was diagnosed with stress and anxiety/panic attacks and
applied for disability benefits through the Long Term Disability Plan
based upon a psychological disability. The Plan provides only one year
of disability benefits for mental and/or nervous disorders. For physical
disabilities, however, the Plan provides benefits to the age of 65.

Plaintiff received one year of disability benefits and then brought suit
against his employer and the state pension board pursuant to Title II of
the ADA and Section 504. He alleged that the Long Term Disability Plan
discriminates against individuals with mental disorders.

The defendants filed a motion to dismiss in which they argued that the
\"safe harbor\" provision of the ADA exempts the substantive content of
insurance policies from coverage by the ADA. That provision states that
Titles I through IV of the ADA \"shall not be construed to prohibit or
restrict\" a benefit plan \"based on underwriting risks, classifying
risks, or administering such risks that are based on or not inconsistent
with State law,\" and that are not \"used as a subterfuge to evade the
purposes of \[title\] I and III\" of the Act. 42 U.S.C. 12201(c).
Defendants also argued that discrimination based on disability in
employee benefits is covered only by Title I of the ADA, not Title II.

A magistrate recommended that the motion to dismiss be granted. The
district court engaged in a [de]{.underline} [novo]{.underline} review
of the magistrate's recommendation, and, on December 17, 1997, dismissed
the complaint.

3\. [The Decision of the District Court]{.underline}. The district court
noted that this Court in [Doe]{.underline} v. [University of Maryland
Medical Systems Corp.]{.underline}, 50 F.3d 1261, 1264-1265 (1995),
\"implicit\[ly\]\" ruled that Title II encompasses a claim for
employment discrimination, and found that the decision in
[Doe]{.underline} is \"bolster\[ed\]\" by the Title II regulations.
[Rogers]{.underline} v. [Department of Health & Envtl.
Control]{.underline}, 985 F. Supp. 635, 637-638 and n.2 (D.S.C. 1997).

It concluded, however, that the complaint failed to state a claim under
either Title II or Section 504 because the ADA prohibits discrimination
between the disabled and the nondisabled and does not prohibit
discrimination between individuals with different disabilities. 985 F.
Supp. at 639. In so ruling, the district court relied heavily upon the
analysis of the [en]{.underline} [banc]{.underline} Sixth Circuit in
[Parker]{.underline} v. [Metropolitan Life Insurance Co.]{.underline},
121 F.3d 1006 (1997), cert. denied, 118 S. Ct. 871 (1998).
[Parker]{.underline} involved claims under Title I of the ADA against
plaintiff's employer, Schering-Plough, and under Title III against the
insurance company that provided long term disability insurance to
Schering-Plough employees. The court in [Parker]{.underline} concluded
that where all employees, both disabled and non-disabled, receive the
same access to a long term disability policy provided by an employer,
neither the employer nor the insurance company discriminates between the
disabled and non-disabled.

SUMMARY OF ARGUMENT

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794(a),
prohibits discrimination by reason of disability in all programs and
activities receiving Federal financial assistance. The purpose of Title
II of the ADA is to extend the prohibitions of discrimination based on
disability in Section 504 to all activities of state and local
governments, regardless of whether those activities receive federal
financial assistance. Congress modeled Title II\'s language on Section
504, and on Title IX of the Education Amendments of 1972, which
prohibits sex discrimination in Federally-assisted employment
activities. At the time Congress enacted the ADA, both Section 504 and
Title IX had been held by the Supreme Court to prohibit discrimination
[in]{.underline} [employment]{.underline} by recipients of federal
financial assistance. [Consolidated Rail Corp.]{.underline} v.
[Darrone]{.underline}, 465 U.S. 624 (1984); [North Haven Bd. of
Educ.]{.underline} v. [Bell]{.underline}, 456 U.S. 512 (1982). In
addition, in Section 204 of Title II, Congress explicitly required that
regulations implementing Title II be consistent with the Section 504
coordination regulations, which expressly reach employment practices.

The legislative history also clearly shows that Congress intended Title
II to cover employment practices. The authoritative committee reports
state that \"the forms of discrimination prohibited by section 202
\[are\] identical to those \* \* \* in the applicable provisions of
Titles I and III\" of the ADA, H.R. Rep. No. 101-485(II), 101st Cong.,
2d Sess. 84 (1990), and Title I covers solely employment issues.

Contrary to appellees\' arguments (Br. 22-30), construing Title II to
reach employment discrimination with respect to public employers does
not make Title I redundant. Rather, Congress intended Title II to be an
alternative remedy, continuing in effect procedures previously provided
by Section 504 that are not included in Title I. See [North Haven Bd. of
Educ.]{.underline} v. [Bell]{.underline}, 456 U.S. 512, 535 n.26 (1982).
Moreover, Title II was modeled on Section 504, and Congress did not
intend to introduce an exhaustion requirement in Section 202 where none
existed under Section 504.

ARGUMENT

> TITLE II OF THE ADA REACHES EMPLOYMENT
>
> PRACTICES OF PUBLIC ENTITIES

Appellees rely upon the reasoning of the district court in
[Bledsoe]{.underline} v. [Palm Beach County Soil & Water Conservation
District]{.underline}, 942 F. Supp. 1439 (S.D. Fla. 1996), in arguing
that Title II does not prohibit employment discrimination based upon
disability. On January 22, 1998, the Eleventh Circuit issued a decision
reversing the district court\'s judgment. [Bledsoe]{.underline} v. [Palm
Beach County Soil & Water Conservation Dist.]{.underline}, 133 F.3d 816.
The court of appeals held that its \"review of the statutory language of
Title II, the Department of Justice\'s ('DOJ') regulations, \[the 11th\]
circuit\'s \[prior\] reference to the issue, and other courts\'
resolution of the issue, persuade\[d it\] that Title II of the ADA does
encompass public employment discrimination.\" [Id.]{.underline} at 820.
The strong weight of authority, including this Court\'s decision in
[Doe]{.underline} v. [University of Maryland Medical Systems
Corporation]{.underline}, 50 F.3d 1261 (4th Cir. 1995), supports
coverage of employment under Title II.[^6] In [Doe]{.underline}, this
Court stated that an individual could establish a violation of Title II,
and of Section 504 of the Rehabilitation Act, by proving that he has a
disability, is otherwise qualified for the employment or benefit in
question, and that he was excluded from the employment or benefit due to
discrimination solely on the basis of disability. 50 F.3d at 1264-1265.
The defendant in [Doe]{.underline} apparently did not dispute that
employment discrimination based upon disability is prohibited by Title
II, and this Court therefore was not required to make that
determination. Rather, it assumed that employment is covered. This case
presents an opportunity for the Court to hold explicitly that employment
is covered.

A. [Employment Coverage Is Clear From The Plain Language And Structure
Of Title II]{.underline}.

1\. [Section 202]{.underline}. Discriminatory employment practices
easily fall within the plain language of Section 202. That section (42
U.S.C. 12132) states:

> \[n\]o qualified individual with a disability 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 Supreme Court in [North Haven Board of Education]{.underline} v.
[Bell]{.underline}, 456 U.S. 512 (1982), interpreted similar language in
Title IX of the Education Amendments of 1972, 20 U.S.C. 1681
[et]{.underline} [seq.]{.underline}, to encompass claims of employment
discrimination. Section 901(a) of Title IX states:

> No person in the United States shall, on the basis of sex, be excluded
> from participation in, be denied the benefits of, or be subjected to
> discrimination under any education program or activity receiving
> Federal financial assistance.

The Court in [North Haven]{.underline} began by noting that
\"\[s\]ection 901(a)\'s broad directive that \'no person\' may be
discriminated against on the basis of gender appears, on its face, to
include employees as well as students. Under that provision, employees,
like other ‛persons,\' may not be \'excluded from participation in,\'
\'denied the benefits of,\' or \'subjected to discrimination under\'
education programs receiving federal financial support.\" 456 U.S. at
520. Here, instead of \"person,\" Section 202 of the ADA uses the term
\"otherwise qualified individual\" to describe the class intended to be
protected. That term is narrower in some respects, because an individual
with a disability must be \"otherwise qualified\" despite the disability
in order to be protected by Section 202. But nothing about the term
suggests that employees are excluded from the broad category of
\"otherwise qualified individual\[s\].\" Thus, Section 202, like the
nearly identical Section 901(a) of Title IX, covers employment. See
[North Haven]{.underline}, 456 U.S. at 538 (program-specific language of
Title IX should be given a similar construction as virtually identical
language in Title VI of the Civil Rights Act of 1964).

Two years after [North Haven]{.underline}, the Court interpreted similar
language in Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.
794, as protecting employees from discrimination based upon disability
in Federally financed programs and activities. [Consolidated Rail
Corp.]{.underline} v. [Darrone]{.underline}, 465 U.S. 624 (1984). At the
time [Darrone]{.underline} was decided, Section 504 stated:

> No otherwise qualified handicapped individual \* \* \* shall, solely
> by reason of his handicap, be excluded from the participation in, be
> denied the benefits of, or be subjected to discrimination under any
> program or activity receiving Federal financial assistance.

In [Darrone]{.underline}, the Court held that it was \"unquestionable\"
that the original language of Section 504 was intended to reach
employment discrimination, especially because \"enhancing employment of
the handicapped\" was a major focus of the Rehabilitation Act. 465 U.S.
at 632. Because Congress, in enacting Title II of the ADA, was extending
the protections of Section 504 to [all]{.underline} programs, activities
and services of public entities, regardless of whether such entities
receive Federal financial assistance, the Court's analysis in
[Darrone]{.underline} clearly demonstrates that Section 202, with
language nearly identical to, and indeed modeled on, Section 504, covers
employment. See [Bledsoe]{.underline}, 133 F.3d at 821 (\"significant
that Congress intended Title II to work in the same manner as Section
504 \* \* \*, because Section 504 was \* \* \* focused on employment
discrimination\").

In holding that \"employment coverage is clear from the language and
structure of Title II,\" 133 F.3d at 822, the court of appeals in
[Bledsoe]{.underline} also relied on the prohibition in the final clause
of the section, which protects qualified individuals with a disability
from being \"subjected to discrimination [by]{.underline} any such
entity,\" 42 U.S.C. 12132 (emphasis added). The appellate court in
[Bledsoe]{.underline} said that the final clause [is not]{.underline}
tied directly to the \"services, programs, or activities\" of the public
entity and clearly reaches [any]{.underline} discrimination, including
employment discrimination. 133 F.3d at 821-822.[^7] The court in
[Bledsoe]{.underline} also relied on the observation of the Second
Circuit in [Innovative Health Systems, Inc.]{.underline} v. [City of
White Plains]{.underline}, 117 F.3d 37, 44-45 (2d Cir. 1997), that
\"'the language of Title II\'s antidiscrimination provision does not
limit the ADA\'s coverage to conduct that occurs in the \'programs,
services, or activities\' of \[a public entity\]. Rather, it is a
catch-all phrase that prohibits all discrimination by a public entity,
regardless of the context \* \* \*.\" 133 F.3d at 822.

2\. [Section 204]{.underline}. Section 204 also demonstrates that
Congress intended Title II to reach employment. Section 204(b) states
that, with certain exceptions not relevant here, "regulations \[to
implement Title II\] shall be consistent with this chapter and with the
coordination regulations under part 41 of title 28, Code of Federal
Regulations \* \* \* applicable to recipients of Federal financial
assistance under section 794 of title 29 \[Section 504\].\" 42 U.S.C.
12134(b). At the time Congress drafted Title II, the coordination
regulations to which Congress specifically cited [expressly]{.underline}
prohibited discrimination on the basis of disability in employment
practices. See 28 C.F.R. 41.52-41.55. Accordingly, Congress referred in
Section 204(b) specifically to regulations that expressly reach
employment practices.

B. [The Legislative History Of Title II Demonstrates\
]{.underline} [That Congress Intended To Prohibit Employment\
]{.underline} [Discrimination.]{.underline}

In our view, the plain language of Section 202 so clearly includes
employment discrimination that there is no need to refer to the
legislative history of the ADA. Resort to the legislative history, if
necessary, further demonstrates that Title II reaches employment. As
appellees acknowledge (Br. 29), the court of appeals in
[Bledsoe]{.underline} found that the \"\[e\]xtensive legislative
commentary regarding the applicability of Title II to employment
discrimination \* \* \* is so pervasive as to belie any contention that
Title II does not apply to employment actions.\" 133 F.3d at 821.

In promulgating Title II regulations covering employment, the Justice
Department relied upon statements in the House report. 56 Fed. Reg. 8545
(Feb. 28, 1991). The Report stated that Title II \"essentially simply
extends the anti-discrimination prohibition embodied in section 504 to
all actions of state and local governments.\" H.R. Rep. No. 101-485(II),
101st Cong., 2d Sess. 84 (1990). See [Ethridge]{.underline} v.
[Alabama]{.underline}, 847 F. Supp. 903, 906 (M.D. Ala. 1993). It stated
that Congress's intention was that (H.R. Rep. No. 101-485(II) at 84):

> the forms of discrimination prohibited by section 202 \[be\] identical
> to those set out in the applicable provisions of titles I and III of
> this legislation. Thus, for example, the construction of
> \"discrimination\" set forth in section 102(b) and (c) and section
> 302(b) should be incorporated in the regulations implementing \[Title
> II\].

Subsections 102(b) and (c) of Title I, to which Congress referred,
specify the forms of employment discrimination prohibited by Title I.
This portion of the Report shows that Congress intended Title II to
prohibit those same types of discriminatory employment practices. In
other words, it demonstrates that Congress intended the very duplication
that the district court in [Bledsoe]{.underline} interpreted as
redundancy (942 F. Supp. at 1445). See discussion [infra]{.underline} at
pp. 16-19.

The House Report next noted that Section 204 of the ADA requires that
regulations issued to implement Section 202 be consistent with the
existing Section 504 regulations. H.R. Rep. No. 101-485(II) at 84. It
states ([ibid.]{.underline}; emphasis added):

> Thus, the requirements of th\[e Section 504\] regulations apply as
> well \[to Title II\], including any requirements such as program
> access that go beyond titles I and III. [In addition, activities which
> do not fit into the employment or public accommodations context are
> governed by the analogous section 504 regulations.]{.underline}

In addition, the House Judiciary Committee Report states (H.R. Rep. No.
101-485(III), 101st Cong., 2d Sess. 50 (1990) (emphasis added)):

> The general prohibitions set forth in the Section 504 regulations, are
> applicable to all programs and activities in title II. The specific
> sections on [employment]{.underline} and program access in existing
> facilities are subject to the "undue hardship" and "undue burden"
> provisions of the regulations which are incorporated in Section 204.
> No other limitation should be implied in other areas.

The Judiciary Committee Report also states that "\[i\]n the area of
[employment]{.underline}, title II incorporates the duty set forth in
the regulations for Sections 501, 503 and 504 of the Rehabilitation Act
to provide a \'reasonable accommodation\' that does not constitute an
‛undue hardship.\'\" [Ibid.]{.underline} (emphasis added).[^8]

These directives in the House Reports clearly indicate Congress's
intention that Title II reach employment discrimination. \"A committee
report represents the considered and collective understanding of those
Congressmen involved in drafting and studying proposed legislation.\"
[Zuber]{.underline} v. [Allen]{.underline}, 396 U.S. 168, 186 (1969).
Such reports are \"particularly good indicator\[s\] of congressional
intent.\" [Pierpont]{.underline} v. [Barnes]{.underline}, 94 F.3d 813,
817 (2d Cir. 1996), cert. denied, 117 S. Ct. 1691 (1997).

C. [The District Court Decisions Relied Upon By Appellees\
]{.underline} [Contain Erroneous Analyses And Should Not Be
Followed]{.underline}

Appellees rely (Br. 24-31) on the district court decisions in
[Bledsoe]{.underline}, [supra]{.underline}; [Decker]{.underline} v.
[University of Houston]{.underline}, 970 F. Supp. 575 (S.D. Tex. 1997);
and [Zimmerman]{.underline} v. [Oregon Dep't. of Justice]{.underline},
983 F. Supp. 1327 (D. Or. 1997), in arguing that employee benefits are
not covered under Title II.[^9] Appellees rely on two basic arguments
used by these three district courts to support their decisions that
Title II does not prohibit employment discrimination based upon
disability. They are that (1) recognizing employment discrimination
claims under Title II would make Title I almost completely redundant as
applied to public employees; and (2) permitting employees of public
entities to bring an action under Title II without exhausting the
administrative remedies required under Title I of the ADA creates an
anomalous situation that would undermine the administrative scheme. As
we demonstrate herein, however, this Court should follow the appellate
court decision in [Bledsoe]{.underline} rather than the flawed reasoning
of the district courts in [Bledsoe]{.underline}, [Decker]{.underline},
and [Zimmerman]{.underline}.

First, there is no \"redundancy\" in the ADA. Titles I and II, while
both reaching employment, create different remedial avenues in response
to Congress's directive to afford complainants those distinct remedial
paths. Complaints filed under Title I follow the administrative scheme
of Title VII of the Civil Rights Act of 1964; complaints under Title II
follow the administrative scheme of Section 504 of the Rehabilitation
Act of 1973, which does not [require]{.underline} exhaustion of any
administrative remedy.[^10] The ADA Title II regulations promulgated by
the Attorney General rely upon the clear directive of the House
Committee report that the "administrative enforcement of section 202 of
the \[ADA\] should closely parallel the Federal government's experience
with section 504." The Report specifically states that "it is not the
Committee's intent that persons with disabilities need to exhaust
Federal administrative remedies before exercising their private right of
action" under Section 202. H.R. Rep. No. 104-485 (II), 101st Cong., 2d
Sess. 98 (1990). See also S. Rep. No. 101-116, 101st Cong., 1st Sess.
57-58 (1989).

One reason Title II was enacted without a requirement of exhaustion is
that, prior to the enactment of the ADA, individuals who were employed
by entities covered by Section 504, [i.e.]{.underline}, recipients of
Federal financial assistance, could either file complaints, including
complaints alleging employment discrimination, with the appropriate
federal funding agency to begin an administrative investigation, or
choose to go to court without exhausting that administrative process.
The legislative history of Title II of the ADA establishes that Congress
did not intend to require exhaustion where none had been required
before, and so Title II provided an avenue for an employment claim
without an exhaustion requirement.

Thus, the different treatment of employment claims brought under Titles
I and II is the direct result of conscious choices made by Congress. It
certainly does not create an anomalous or \"redundant\" situation
resolvable only by excluding employment totally from Title II.

Appellees rely (Br. 25-26) on statements in the district court in
[Bledsoe]{.underline} that if employment discrimination is covered under
Title II it results in a \"\'completely bewildering \'\" statutory
scheme under which private employers with fewer than 15 employees are
excluded from Title I coverage, while public employers must comply with
Title II regardless of how few individuals they employ. 942 F. Supp. At
1445-1446. Since the Section 504 regulations on which Congress directed
the Attorney General to model the Title II regulations not only reach
employment but do not limit coverage based upon the size of the
employer, the Department concluded that Title II was written to cover
employment practices of [all]{.underline} public entities, regardless of
the size of the employer. 28 C.F.R. Pt. 35, App. A, Subpt. C. See
[Petersen]{.underline} v. [University of Wis. Bd. of
Regents]{.underline}, 818 F. Supp. 1276, 1279 (W.D. Wis. 1993);
[Bruton]{.underline} v. [Southeastern Pa. Transp. Auth.]{.underline},
No. 94-CV-3111, 1994 WL 470277 (E.D. Pa. Aug. 19, 1994). The regulations
are thus consistent with Congress's apparent intent to exclude small
[private]{.underline} employers, but not small [public]{.underline}
employers. That policy decision may well be based upon the view that
public employers should be on the forefront of eliminating employment
discrimination based upon disability. It may also reflect cost
considerations that affect small private employers more than small
public entities. In any event, the plain language of Title II, and its
legislative history, make clear that Title II was intended to cover
employment practices of all public entities, resulting in an Act that
reaches all public employers but excludes very small private employers.
While a court may disagree with the wisdom of Congress's choices, the
language and legislative history of the ADA make exceedingly clear that
Congress's choice was to cover employment practices under Title II.[^11]

D. [Section 107(a) Of The ADA, 42 U.S.C. 12117(a), Does Not Require A
Title II Complainant To Exhaust The Administrative Remedies Provided In
Title I]{.underline}.

A number of defendants in Title II cases have argued that, even if
employment claims are covered by Title II, individuals bringing their
claim under Title II must still exhaust the Title I procedures. In so
arguing, these defendants have focused on the language of Section 107(a)
of the ADA, which states that the Title VII \"powers, remedies, and
procedures\" apply to \"any person alleging discrimination on the basis
of disability in violation of any provision of [this
chapter]{.underline} \* \* \* concerning employment (emphasis
added)\"[^12] Section 107(a) does not, however, require a plaintiff
filing an employment claim under Title II to exhaust the administrative
remedies of Title I.

The district courts that have considered this argument have uniformly,
and, in our view properly, rejected it. See [Winfrey]{.underline} v.
[City of Chicago]{.underline}, 957 F. Supp. 1014, 1022-1023 (N.D. Ill.
1997); [Wagner]{.underline} v. [Texas A & M Univ.]{.underline}, 939 F.
Supp. 1297, 1310 (S.D. Tex. 1996); [Silk]{.underline} v. [City of
Chicago]{.underline}, No. 95-C-0143, 1996 WL 312074 (N.D. Ill. June 7,
1996). To begin with, Section 107(a) is unclear because it refers to
provisions of \"this chapter\" concerning employment, but then refers
solely to regulations promulgated under Title I (42 U.S.C. 12116). But,
the language of Section 202 (and its implementing regulations) reach
[all]{.underline} actions, including employment. Thus, even considering
Section 107(a) in isolation, the courts that have considered this
argument have found Section 107(a) \"not expressive of clear
Congressional intent\" to apply Title I procedures to Title II claims.
[Wagner]{.underline}, 939 F. Supp. at 1310; see also
[Winfrey]{.underline}, 957 F. Supp. at 1022-1023; [Silk]{.underline},
1996 WL 312074 at \*13.

Moreover, \"\[t\]he plain meaning that \[a court should\] seek to
discern is the plain meaning of the whole statute, not of isolated
sentences.\" [Beecham]{.underline} v. [United States]{.underline}, 511
U.S. 368, 372 (1994). Here, Section 107(a) is in direct conflict with
Section 203 of the ADA, which provides (42 U.S.C. 12133, emphasis
added):[^13]

> The remedies, [procedures]{.underline}, and rights set forth in
> section 794a of title 29\[[^14]\] shall be the remedies, procedures,
> and rights this subchapter provides to [any]{.underline}
> [person]{.underline} alleging discrimination on the basis of
> disability in violation of section 12132 of this title \[42 U.S.C.\].

Section 203 clearly provides that Title II complaints are enforced in
accordance with the procedures of Section 504. Well-settled law
establishes that individuals alleging employment discrimination under
Section 504 have the right to file a complaint in federal court without
exhausting any administrative remedy. See [Consolidated Rail
Corp.]{.underline} v. [Darrone]{.underline}, 465 U.S. 624 (1984);
[Cannon]{.underline} v. [University of Chicago]{.underline}, 441 U.S.
677, 706 n.41 (1979). The ADA specifically preserves that right. 42
U.S.C. 12201(b). In other words, Section 504 is the baseline against
which Title II remedies, rights, and procedures are measured. See
[Bledsoe]{.underline}, 133 F.3d at 821 (\"Congress intended Title II to
work in the same manner as Section 504\"). As the court in
[Silk]{.underline} recognized, 1996 WL 312074 at \*13,

> given the parallel enforcement structure of the ADA and the small
> overlap of Title I and Title II employment discrimination claims, this
> court concludes that if Congress had truly intended to subject all ADA
> employment discrimination claims to Title I\'s enforcement scheme,
> section 12133 would have limited application of the Rehabilitation
> Act\'s procedures etc. to all violations of section 12132, except
> employment discrimination claims. In the absence of this language, the
> defendants\' argument fails.

The interpretation that Section 107(a) limits employment actions to
Title I also conflicts with Section 204 of the ADA, 42 U.S.C. 12134(b),
which directed the Attorney General to promulgate regulations consistent
with the existing Section 504 coordination regulations. See 28 C.F.R.
41.5. See [Cannon]{.underline} v. [University of Chicago]{.underline},
441 U.S. 677, 706 n.41 (1979) (private right of action permitted without
exhausting administrative remedies). See also [Bledsoe]{.underline}, 133
F.3d at 824. As the Supreme Court has stated, \"\'\[a\] provision that
may seem ambiguous in isolation is often clarified by the remainder of
the statutory scheme . . . because only one of the permissible meanings
produces a substantive effect that is compatible with the rest of the
law.\'\" [Department of Revenue]{.underline} v. [ACF
Indus.]{.underline}, 510 U.S. 332, 343 (1994), quoting [United Sav.
Ass\'n]{.underline} v. [Timbers of Inwood Forest Assocs.]{.underline},
484 U.S. 365, 371 (1988).[^15]

Finally, the legislative history of the ADA supports our interpretation
on the issue of exhaustion of administrative remedies under Title II. In
resolving the apparent conflict between the language of Section 107(a)
and that of Section 203 in favor of permitting Title II employment
actions to proceed without use of Title I procedures, the Attorney
General properly consulted the legislative history. [Administrator, Fed.
Aviation Admin.]{.underline} v. [Robertson]{.underline}, 422 U.S. 255,
262-263 (1975); [Garcia]{.underline} v. [United States]{.underline}, 469
U.S. 70, 76 n.3 (1984). The authoritative committee reports clearly
state that the exhaustion requirement of Title I does not apply to Title
II (it was \"not the Committee\'s intent that persons with disabilities
need to exhaust Federal administrative remedies before exercising their
private right of action\"). H.R. Rep. No. 101-485(II) at 98. See also S.
Rep. No. 101-116 at 57-58.

The regulations promulgated by the Attorney General are entitled to
\"controlling weight unless they are arbitrary, capricious, or
manifestly contrary to the statute.\" [Chevron,]{.underline}

[U.S.A., Inc.]{.underline} v. [Natural Resources Defense Council,
Inc.]{.underline}, 467 U.S. 837, 843 (1984). Since the regulations
stating that exhaustion of administrative remedies is not required under
Title II (28 C.F.R. Pt. 35, App. A § 35.172) are consistent with the
statute as a whole and well-grounded in the legislative history, they
should be given controlling weight here. Section 107(a) does not compel
the holding that individuals filing employment claims under Title II
must use the procedures of Title I.

This interpretation is fully consistent with separate Title II
regulations that have been raised in other cases as suggesting that
Title II complainants must exhaust Title I administrative procedures. 28
C.F.R. 35.140 states:

> (b)(1) For purposes of \[part 35 of the regulations\], the
> requirements of title I of the Act, as established by the regulations
> of the Equal Employment Opportunity Commission in 29 CFR part 1630,
> apply to employment in any service, program, or activity conducted by
> a public entity if that public entity is also subject to the
> jurisdiction of title I.
>
> \(2\) For the purposes of \[part 35\], the requirements of section 504
> of the Rehabilitation Act of 1973, as established by the regulations
> of the Department of Justice in 28 CFR part 41, as those requirements
> pertain to employment, apply to employment in any service, program, or
> activity conducted by a public entity if that public entity is not
> also subject to the jurisdiction of title I.

These regulations are intended to impose the substantive requirements of
Title I upon a Title II employment claim where that public entity
involved is also covered by Title I. They do not address the procedural
requirements. Part 1630 of the EEOC

regulations referenced in 28 C.F.R. 35.140(b)(1) contain only the
substantive regulations implementing Title I. The procedural
requirements, including the requirement for exhaustion of administrative
remedies, are contained in 29 C.F.R. Pt. 1641. Thus, as the district
court in [Petersen]{.underline} v. [University of Wis. Bd. of
Regents]{.underline}, 818 F. Supp. 1276, 1280 (W.D. Wis. 1993),
correctly concluded, it is \"unlikely that if the Department of Justice
had meant the procedural requirements of Title I of the Act to apply to
claims of employment discrimination brought under Title II, it would
have referred explicitly to only the part of the \[EEOC\] regulations
governing substantive requirements imposed on defendants and neglected
to refer to the part of the regulations that address procedural
requirements imposed on plaintiffs.\" See also [Silk]{.underline}, 1996
WL 312074, at \*12; [Dertz]{.underline} v. [City of
Chicago]{.underline}, 912 F. Supp. 319, 324 (N.D. Ill. 1995); and
[Ethridge]{.underline}, 860 F. Supp. at 813.[^16]

CONCLUSION

For the foregoing reasons, this Court should affirm the district court's
holding that employment discrimination complaints may be brought under
Title II of the ADA.

Respectfully submitted,

BILL LANN LEE

Acting Assistant Attorney

General

MARK L. GROSS

MARIE K. McELDERRY

Attorneys

Department of Justice

P.O. Box 66078

Washington, D.C. 20035-6078

\(202\) 514-3068

[^1]: ^[?]{.underline}/^ In addition to Titles I and II, which are
    described in detail [infra]{.underline} in the text, the statute
    prohibits discrimination in public accommodations and services
    provided by private entities (Title III) and telecommunications
    (Title IV). Title V covers a diverse group of miscellaneous matters.

[^2]: ^[?]{.underline}/^ Title I also applies to employment agencies,
    labor organizations, and joint labor-management committees. Like
    Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e(b),
    \"employer\" excludes the United States, corporations wholly owned
    by the government of the United States, Indian tribes, and
    tax-exempt bona fide private membership clubs (other than labor
    organizations). 42 U.S.C. 12111(5)(B).

[^3]: ^[?]{.underline}/^ Section 504, 29 U.S.C. 794(a), provides in
    relevant part:

    > No otherwise qualified individual with a disability\
    > \* \* \* shall, solely by reason of her or his disability, be
    > excluded from the participation in, be denied the benefits of, or
    > be subjected to discrimination under any program or activity
    > receiving Federal financial assistance \* \* \*.

[^4]: ^[?]{.underline}/^ Section 505(a)(2), which sets out procedures
    for enforcement of Section 504 of the Rehabilitation Act of 1973,
    incorporates by reference the remedies, procedures, and rights set
    forth in Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d -
    2000d-4).

[^5]: ^[?]{.underline}/^ These factual allegations, which come from the
    complaint, are taken as true for purposes of the motion to dismiss.

[^6]: ^[?]{.underline}/^ The majority of courts addressing the issue
    have concluded (or assumed without discussion) that Title II
    prohibits employment discrimination based upon disability. See
    [Saylor]{.underline} v. [Ridge]{.underline}, 989 F. Supp. 680,
    687-688 (E.D. Pa. 1998); [Dominguez]{.underline} v. [City of Council
    Bluffs]{.underline}, 974 F. Supp. 732, 736-737 (S.D. Iowa 1997);
    [Benedum]{.underline} v. [Franklin Township Recycling
    Ctr.]{.underline}, No. 95-1343, 1996 WL 679402 (W.D. Pa., Sept. 12,
    1996); [Davoll]{.underline} v. [Webb]{.underline}, 943 F. Supp.
    1289, 1297 (D. Colo. 1996); [Wagner]{.underline} v. [Texas A & M
    Univ.]{.underline}, 939 F. Supp. 1297, 1309 (S.D. Tex. 1996);
    [Graboski]{.underline} v. [Guiliani]{.underline}, 937 F. Supp. 258,
    268-269 (S.D.N.Y. 1996), aff\'d on other grounds, 142 F.3d 58 (2d
    Cir. 1998); [Silk]{.underline} v. [City of Chicago]{.underline}, No.
    95-C-0143, 1996 WL 312074, \*10 (N.D. Ill. June 7, 1996);
    [Bruton]{.underline} v. [Southeastern Pa. Transp.
    Auth.]{.underline}, No. 94-CV-3111, 1994 WL 470277, \*2 (E.D. Pa.
    Aug. 19, 1994); [Ethridge]{.underline} v. [Alabama]{.underline}, 847
    F. Supp. 903, 906 (M.D. Ala. 1993), and 860 F. Supp. 808, 812 (M.D.
    Ala. 1994); [Eisfelder]{.underline} v. [Michigan Dep\'t of Natural
    Resources]{.underline}, 847 F. Supp. 78, 83 (W.D. Mich. 1993);
    [Finley]{.underline} v. [Giacobbe]{.underline}, 827 F. Supp. 215,
    219-220 n.3 (S.D.N.Y. 1993); [Petersen]{.underline} v. [University
    of Wis. Bd. of Regents]{.underline}, 818 F. Supp. 1276, 1278 (W.D.
    Wis. 1993); [Bell]{.underline} v. [Retirement Bd. of Firemen's
    Annuity & Benefit Fund of Chicago]{.underline}, No. 92-C-5197, 1993
    WL 398612, \*4 (N.D. Ill. Oct. 6, 1993); see also
    [Holbrook]{.underline} v. [City of Alpharetta]{.underline}, 112 F.3d
    1522, 1528-1529 (11th Cir. 1997).

[^7]: ^[?]{.underline}/^ The court of appeals thus rejected the
    [Bledsoe]{.underline} district court\'s conclusion (942 F. Supp. at
    1443), that the phrase \"\'services, programs, or activities, \* \*
    \* understood as a whole, focus\[es\] on a public\[\] entity\'s
    outputs rather than its imputs \[sic\].\'\" 133 F.3d at 821.

[^8]: ^[?]{.underline}/^ Appellees isolate this statement from the
    legislative history as though it was the sole support relied upon by
    the appellate court in [Bledsoe]{.underline} and contend that such
    reliance is misplaced (Br. 29). It is appellees, however, who are
    mistaken. This statement was directed to the substantive scope of
    Title II, not, as appellees contend (Br. 29), to the section of
    Title II that incorporates the \"remedies, procedures, and rights
    set forth in section 794a of title 29.\" 42 U.S.C. 12133.

[^9]: ^[?]{.underline}/^ As appellees acknowledge (Br. 28), the district
    court decision in [Bledsoe]{.underline} has been reversed by the
    Eleventh Circuit. Appeals are pending in both [Decker]{.underline},
    No. 97-20502 (5th Cir.), and [Zimmerman]{.underline}, No. 97-36101
    (9th Cir.). Oral argument was heard in [Decker]{.underline} on
    February 3, 1998. Briefing is not yet completed in
    [Zimmerman]{.underline}.

[^10]: ^[?]{.underline}/^ Under Section 504, individuals with
    disabilities who alleged employment discrimination by recipients of
    Federal financial assistance were able, at their option, to have
    their complaints investigated and conciliated by Federal agencies or
    to file immediately in court and bypass administrative action on
    their complaints. Congress therefore preserved such an option under
    the ADA, substituting for the fund termination sanction available
    under Section 504 a referral of cases to the Department of Justice
    for possible lawsuit. See H.R. Rep. No. 101-485 (II) at 98
    (envisioning that the Department of Justice would \"identify
    appropriate Federal agencies to oversee compliance activities for
    State and local governments\"). This congressional vision has been
    implemented by regulation. 28 C.F.R. 35.190.

[^11]: ^[?]{.underline}/^ Appellees argue (Br. 29) that the Eleventh
    Circuit in [Bledsoe]{.underline} \"acknowledged \* \* \* \[that\]
    the \[Department of Justice Title II\] regulations have not been
    approved by Congress and have no effect.\" This argument misstates
    the Eleventh Circuit\'s opinion. The court in [Bledsoe]{.underline}
    stated that Congress demonstrated its agreement with the Attorney
    General's interpretation of Title II when the Senate gave unanimous
    consent to publication of regulations adopting that interpretation
    as applied to covered employees within the legislative branch. 133
    F.3d at 822. A footnote in the [Bledsoe]{.underline} opinion noted
    that, pursuant to 2 U.S.C. 1384(d)(3), those regulations do not
    become effective until they are approved by Congress and published
    in the Congressional Record. [Id.]{.underline} at 822 n.6. That
    footnote refers to regulations promulgated under the Congressional
    Accountability Act of 1995, 2 U.S.C. 1301 [et]{.underline}
    [seq.]{.underline} (CAA), not to the Title II regulations
    promulgated by the Attorney General. While the CAA regulations do
    require congressional approval, the ADA regulations do not.

[^12]: ^[?]{.underline}/^ Section 107(a), 42 U.S.C. 12117(a), provides:

    > The powers, remedies, and procedures set forth in sections
    > 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of this title \[42
    > U.S.C.\] shall be the powers, remedies, and procedures this
    > subchapter provides to the Commission, to the Attorney General, or
    > to any person alleging discrimination on the basis of disability
    > in violation of any provision of this chapter, or regulations
    > promulgated under section 12116 of this title, concerning
    > employment.

[^13]: ^[?]{.underline}/^ If interpreted to mean that every ADA
    employment complaint must follow the Title I administrative
    procedures, Section 107(a) also conflicts with portions of Title V.
    As originally enacted, Section 509 (42 U.S.C. 12209) provided that
    the rights and protections of the ADA applied to employment by the
    Senate and the House of Representatives. But ADA complaints by
    congressional employees were administered in accordance with certain
    Senate and House resolutions, not by the procedures of Title I. See
    42 U.S.C. 12209 (a)(3) and (b)(2)(B). Thus although Section 509 as
    originally enacted was a \"provision of this chapter \[the ADA\] \*
    \* \* concerning employment,\" it, like Title II (which follows
    Section 504 of the Rehabilitation Act), incorporated procedures
    other than those of Title I.

    The applicability of the rights and protections of the ADA to
    Congress is now governed by the Congressional Accountability Act of
    1995, Pub. L. 104-1 (104th Cong., 1st Sess.). Section 201(c)(3) of
    that Act amended 42 U.S.C. 12209 to delete subsections (a) and (b),
    which were replaced by new procedures codified at 2 U.S.C. 1301
    [et]{.underline} [seq.]{.underline}. See especially 2 U.S.C.
    1331(d).

[^14]: ^[?]{.underline}/^ Section 203 provides Title II complainants the
    remedies, procedures, and rights provided to Section 504
    complainants, [i.e.]{.underline}, Section 505(a)(2), 29 U.S.C.
    794a(a)(2). Section 505(a)(1), 29 U.S.C. 794a(a)(1), on the other
    hand, applies solely to complaints by Federal employees under
    Section 501, 29 U.S.C. 791.

[^15]: ^[?]{.underline}/^ The apparent clash between Section 107(a) and
    Sections 203 and 204 can be reconciled, however, by construing the
    language used in Section 107(a) \-- \"any provision of this chapter
    \* \* \* concerning employment\" \-- as limited to Title I.
    Indications that this is the case are that, not only is Section
    107(a) contained within Title I, but it also refers only to
    regulations promulgated under Title I. In addition, its reference to
    a provision \"concerning employment\" most closely describes Title
    I, which concerns solely employment, as opposed to Title II, which
    more broadly prohibits any form of discrimination based on
    disability in public services and programs, including employment.

[^16]: ^[?]{.underline}/^ Appellees quote an additional argument from
    the district court opinion in [Decker]{.underline}, which relies on
    the Government Employee Rights Act of 1991, 2 U.S.C. 1201-1220, in
    concluding that Congress could not have intended to allow employees
    of public entities to file suits under Title II without exhausting
    the administrative remedies of Title I of the ADA. See Brief at 27.
    That reliance is misplaced.

    The GERA was enacted one year after the ADA in part to provide a
    cause of action alleging employment discrimination based upon race,
    sex, religion, age, and disability for certain policymaking or
    confidential State employees who are precluded from bringing suit
    under Title VII (see 42 U.S.C. 2000e(f)). The GERA requires such an
    employee to file a claim with the EEOC, which issues a final order
    that is subject only to limited review by a court. See 2 U.S.C.
    1220. The district court in [Decker]{.underline} concluded (970 F.
    Supp. at 578) that Congress would not have established such a
    limited administrative process regarding politically sensitive
    employees if such employees already had the right to bring a private
    suit under Title II without exhausting administrative remedies of
    any kind. That conclusion is undermined, however, by the fact
    (apparently not considered by the district court in
    [Decker]{.underline}) that such employees are not exempt from
    coverage under Title I, as they are under Title VII. The existence
    of the GERA remedy thus does not add anything to the court's
    analysis.