by Elizabeth Schwartz*
Together, the Americans with Disabilities Act and Section 504 of the Rehabilitation Act provide federal protections for individuals with disabilities in a wide variety of contexts. However, while parties can pursue a private right of action under these statutes, circuit courts are split on whether to recognize disparate-impact discrimination claims. This Contribution argues that Supreme Court precedent and statutory purpose require that disparate impact claims be cognizable.
Litigants may bring claims alleging disability discrimination under the Americans with Disabilities Act of 1990 (“ADA”), which addresses disability discrimination by state and local governments or in places of public accommodation, and Section 504 of the Rehabilitation Act of 1974 (“Section 504”), which addresses disability discrimination by federal grantees.1 Regarded as the “twin pillars of federal disability discrimination law,”2 these statutes provide individuals with disabilities with a range of protections,3 including in the areas of education, employment, transportation, public accommodations, and access to state and local government services.4
To succeed on a claim, a plaintiff must allege one of three possible theories of disability discrimination: disparate treatment (also referred to as disparate intent), disparate impact, or failure to make reasonable accommodations.5 Claims of disparate treatment or failure to make reasonable accommodations are well established in case law, but disparate impact claims remain an unsettled area of law.6 Specifically, circuit courts remain divided about whether disparate impact claims are cognizable under Title II of the ADA or Section 504.7 This Contribution argues that disparate impact claims must be cognizable under either statute to be consistent with Supreme Court precedent and the statutory purpose and scheme of both statutes.
In Doe v. BlueCross BlueShield of Tennessee, Inc., the Sixth Circuit considered a claim of disparate-impact discrimination based on BlueCross BlueShield’s requirement that the plaintiff receive his HIV medication by mail, rather than through a local pharmacy.8 The plaintiff alleged that this policy had a greater impact on him and other individuals with HIV than it would for individuals without a disability.9 The court found for the defendant and held in part that disparate impact claims are not cognizable under Section 504.10 However, the Sixth Circuit premised its decision on a mischaracterization of the Supreme Court’s opinion in Alexander v. Choate by asserting that it was an open question of law whether disparate impact claims, on the whole, can be cognizable, and that the court was “now resolv[ing] what Choate did not.”11 A close reading of Choate reveals this representation to be inaccurate.12
In Choate, the plaintiff alleged that a change in the Tennessee Medicaid program would affect individuals with disabilities more significantly than the rest of the population, constituting a violation of Section 504 under a disparate-impact theory of discrimination.13 Writing for the majority, Justice Marshall’s opinion navigated a middle course: “While we reject the boundless notion that all disparate-impact showings constitute prima facie cases under § 504, we assume without deciding that § 504 reaches at least some conduct that has an unjustifiable disparate impact upon the handicapped.”14 Every disparate impact claim might not be cognizable under Section 504, but some must be, lest “one of [the government’s] goals so overshadows the other as to eclipse it.”15 While the plaintiff’s particular harm was found to be not cognizable in Choate, the Court upheld the analytical framework first put forth in Southeastern Community College v. Davis: that Section 504 guarantees that individuals with disabilities be provided meaningful access to a governmental benefit and reasonable accommodations might be required to ensure this access.16
Thus, the question left open after Choate is not whether Section 504 and the later-enacted ADA prohibit disparate-impact discrimination, but where the outer boundaries for such claims should be drawn. BlueCross BlueShield ignores the nuances of Choate’s holding and accordingly reaches the wrong result.
In contrast, the Third and Ninth Circuits have upheld the right of individuals with disabilities to bring disparate-impact discrimination claims, relying upon the holding in Choate.
In Payan v. Los Angeles Community College District, the plaintiffs alleged that a public community college’s policies had a disparate impact on individuals with disabilities.17 The Ninth Circuit affirmed a private right of action for disparate-impact claims, citing to Choate and other Ninth Circuit precedent that demonstrate the “historical understanding that Section 504 and the ADA were specifically intended to address both intentional discrimination and discrimination caused by ‘thoughtless indifference.’”18
Likewise, in Doe 1 v. Perkiomen Valley School District, the Third Circuit considered a case in which a class of students with disabilities filed a disparate-impact claim after their school district rescinded a universal indoor masking policy during the COVID-19 pandemic.19 The plaintiffs alleged that retracting the mask mandate would exclude children with disabilities from their public schools.20 In response, the defendants argued for the court to embrace the Sixth Circuit’s approach in Doe v. BlueCross BlueShield of Tennessee, Inc. and hold that Section 504 and the ADA do not prohibit disparate-impact discrimination.21 The Third Circuit rejected the defendant’s argument, noting that following the Sixth Circuit “would be inconsistent with Supreme Court and Third Circuit precedent.”22 Instead, the court applied the framework presented in Choate to evaluate a facially neutral policy and looked to whether the policy denied meaningful access and whether reasonable accommodations could be made.23
Allowing disparate-impact claims under the ADA and Section 504 is consistent with the legislative intent and the broader statutory scheme of the statutes. As noted in Choate, the legislators who enacted Section 504 considered disability discrimination to typically be the effect of neglect or thoughtlessness, rather than intentional wrongdoing.24 Representative Vanik, who introduced an earlier version of the Act in the House, positioned his bill as solving one of the country’s “shameful oversights” and described individuals with disabilities as often “shunted aside, hidden and ignored.”25 Senator Williams, the chairman of the Labor and Public Welfare Committee that reported out Section 504, stated that “the neglect of the handicapped is a stain on our collective conscience.”26 The problem that the Act sought to solve was framed as one of unintentional neglect, rather than purposeful malice, and the legislative intent of the bill extended to the kind of discrimination that results from a facially neutral policy with disparate effects.27
Further, an explicit purpose of Section 504 was to prohibit architectural barriers, a specific form of unintentional disability discrimination concerning building design, in order to increase access for individuals with disabilities.28 The Senate Committee on Labor and Public Welfare specifically noted the “enormous physical barriers to the mobility of the handicapped individual.”29 If intentional discrimination was all that the Act addressed, it would have no effect on this central issue because these barriers at issue were clearly not erected with the purpose of excluding or discriminating.30 Buildings must be made accessible to individuals with disabilities, even when the architect did not intend to exclude them.31 Thus, it is consistent with the overarching statutory scheme to broadly prohibit unintentional disparate-impact discrimination.
In Choate, the Supreme Court reasoned that disparate impact claims were essential to realizing the stated goals of federal disability statutes. Although the Court did not issue a broad statement recognizing all disparate-impact claims, it applied a balancing test to determine whether meaningful access had been provided and whether there existed reasonable accommodations that should have been made. The Sixth Circuit could have denied the BlueCross BlueShield plaintiff’s claim within this framework, but instead chose to decide the case outside the boundaries of Supreme Court precedent and the well-established legislative intent. Courts that have yet to consider this question should follow the approaches adopted by the Third and Ninth Circuits, in accordance with the Supreme Court and the core purpose of the legislation, and hold that disparate impact claims are cognizable under the ADA and Section 504.
* Elizabeth Schwartz is a J.D. Candidate (2023) at New York University School of Law. This Contribution does not necessarily represent the views of the author.
1. Equal Opportunity for Individuals with Disabilities, 42 U.S.C. §§ 12101–12213; Vocational Rehabilitation and Other Rehabilitation Services, 29 U.S.C. §§ 701–797b.
2. Berardelli v. Allied Servs. Inst. of Rehab. Med., 900 F.3d 104, 109–10 (3d Cir. 2018) (“Both statutes secure the rights of individuals with disabilities to independence and full inclusion in American society . . . .”).
3. Courts have analyzed Section 504 and the ADA coextensively because “there is no significant difference in the analysis of rights and obligations created by the two Acts.” Payan v. Los Angeles Cmty. Coll. Dist., 11 F.4th 729, 737 (9th Cir. 2021) (quoting K.M. ex rel. Bright v. Tustin Unified Sch. Dist., 725 F.3d 1088, 1098 (9th Cir. 2013)) (holding that a private right of action exists to enforce disparate-impact discrimination under Title II of the ADA and Section 504).
4. 42 U.S.C. § 12101; 29 U.S.C. § 701.
5. Tardif v. City of New York, 991 F.3d 394, 403–04 (2d Cir. 2021) (detailing the three theories for establishing liability under Title II of the ADA, which prohibits discrimination against individuals with disabilities in public services, programs, and activities); see also 42 U.S.C. § 12132 (proscribing discrimination in public services, programs, and activities).
6. E.g., Doe v. BlueCross BlueShield of Tennessee, Inc., 926 F.3d 235, 241 (6th Cir. 2019) (“[Disparate impact claims] raise an open question about the scope of the Rehabilitation Act . . . .”); see also Mark C. Weber, Accidentally On Purpose: Intent In Disability Discrimination Laws, 56 Bos. Coll. L. Rev. 1417, 1419–20 (2015) (discussing the heightened controversy surrounding disparate impact claims in discrimination law).
7. Compare Payan, 11 F.4th at 734 and Doe 1 v. Perkiomen Valley Sch. Dist., 585 F. Supp. 3d 668, 688 (E.D. Pa. 2022) (holding that disparate impact claims are cognizable under Title II of the ADA), with BlueCross BlueShield, 926 F.3d at 241 (holding that Section 504 does not prohibit disparate-impact discrimination).
8. Doe v. BlueCross BlueShield of Tennessee, Inc., 926 F.3d 235, 237 (6th Cir. 2019).
9. Id. at 238. It was not disputed whether HIV-positive status qualified as a disability under the Act. See id. at 241 (“We take . . . for granted . . . that Doe’s HIV-positive status counts as a disability under the Act . . . .”).
10. Id. at 241.
11. Id.; cf. Alexander v. Choate, 469 U.S. 287, 299 (1985) (acknowledging that at least some disparate-impact claims are cognizable under Section 504).
12. Choate, 469 U.S. at 299.
13. Id. at 290–91. Notably, the suit occurred before the ADA was enacted, so the plaintiff only filed claims under Section 504, but the statutes have been applied identically by courts. See supra note 3.
14. Id. at 299 (emphasis added).
16. Id. at 301; see also Southeastern Community College v. Davis, 442 U.S. 397, 412–13 (1979) (holding that refusing to accommodate the needs of a disabled person may amount to discrimination).
17. Payan v. Los Angeles Cmty. Coll. Dist., 11 F.4th 729, 733 (9th Cir. 2021).
18. Id. at 737 (quoting Alexander v. Choate, 469 U.S. 287, 295 (1985)).
19. Doe 1 v. Perkiomen Valley Sch. Dist., 585 F. Supp. 3d 668, 677–79 (E.D. Pa. 2022).
20. Id. at 679.
21. Id. at 687.
23. Id. at 687–89.
24. Alexander v. Choate, 469 U.S. 287, 295 (1985).
25. 117 Cong. Rec. 45974 (1971). See also Helen L. v. DiDario, 46 F.3d 325, 335 (3d Cir. 1995) (noting that “[b]ecause the ADA evolved from an attempt to remedy the effects of ‘benign neglect’ resulting from the ‘invisibility’ of the disabled, Congress could not have intended to limit the Act’s protections and prohibitions to circumstances involving deliberate discrimination”).
26. 118 Cong. Rec. 3320 (1972) (emphasis added).
27. See DiDario, 46 F.3d at 335 (“[M]uch of the conduct that Congress sought to alter in passing the Rehabilitation Act [and the ADA] would be difficult if not impossible to reach were the Act[s] construed to proscribe only conduct fueled by a discriminatory intent.”) (quoting Choate, 469 U.S. at 296–97).
28. See S. Rep. No. 93-318, at 2125 (1973) (characterizing “the elimination of architectural and transportation barriers” as a goal of the act).
29. Id. at 2122.
30. See Choate, 469 U.S. at 296 (“Federal agencies and commentators . . . have found that discrimination against the handicapped is primarily the result of apathetic attitudes rather than affirmative animus.”).
31. See id. at 297 (“[E]limination of architectural barriers was one of the central aims of the Act . . . yet such barriers were clearly not erected with the aim or intent of excluding the handicapped.”).