Title I of the ADA prohibits employment discrimination against “a qualified individual with a disability.” This is the law that a disabled employee usually invokes if she claims disability discrimination in employment.  An interesting case was filed in federal court in Oklahoma in which plaintiff sued not under Title I, but under Title II of the ADA.  Why, you ask, under Title II and not Title I?   Good question.

Plaintiff was an employee at the University of Oklahoma who had a progressively worsening spinal and nerve injury, and alleged that the state university refused to accommodate her disability and eventually fired her. The University, however, is considered an “arm of the state,” and it has been held that as a state entity it is immune from suit under Title I of the ADA.  So being resourceful and creative, plaintiff sued under Title II – which does not so immunize the state or any state entity.

There is a problem, however, in suing under Title II.  Title II does not explicitly prohibit discrimination in employment  -- it provides that “no 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 University contended that Plaintiff was simply trying to “recast” her proscribed Title I employment discrimination claim as one under Title II, in an improper attempt to circumvent the state’s immunity.

The Court agreed.  It held that “[t]he plain language of the ADA, when read as a whole, does not support a cause of action for employment discrimination under Title II.”  It has been held that “The definition of who qualifies for protection under Title II reflects its emphasis on the provision of public services and programs,” and because of the fact that Title II deals only with “services, programs, or activities,” it is not a “catch-all” prohibition against all discrimination by a public entity. 

Out goes any employment disability claim under Title II!