Erickson v. Bd. of Gov's St. Colleges & Univ.

• Decision Date: 27 March 2000
• Docket Number: No. 98-3614,98-3614
• Citation: 207 F.3d 945
• Parties: (7th Cir. 2000) Melinda Erickson, Plaintiff-Appellee, United States of America, Intervenor, v. Board of Governors of State Colleges and Universities for Northeastern Illinois University, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 945

207 F.3d 945 (7th Cir. 2000)

Melinda Erickson, Plaintiff-Appellee, United States of America, Intervenor, v. Board of Governors of State Colleges and Universities for Northeastern Illinois University, Defendant-Appellant.

No. 98-3614

In the United States Court of Appeals For the Seventh Circuit

Argued April 27, 1999

Decided March 27, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 95 C 2541--John A. Nordberg, Judge.

Before Eschbach, Easterbrook, and Diane P. Wood, Circuit Judges.

Easterbrook, Circuit Judge.

We must decide whether Title I of the Americans with Disabilities Act, 42 U.S.C. sec.sec. 12111-17, is an exercise of power under sec.5 of the Fourteenth Amendment, which confers authority "to enforce, by appropriate legislation, the provisions of this article." Defendant in this suit is an arm of Illinois and therefore one of the United States for purposes of the Eleventh Amendment. Congress has power under the Commerce Clause to adopt the ADA's rules, but given the Eleventh Amendment a statute that rests only on the Commerce Clause can not authorize private suits against states in federal court. Seminole Tribe v. Florida, 517 U.S. 44 (1996). But if sec.5 bestows power to adopt the ADA, then private litigation is compatible with the Eleventh Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).

Melinda Erickson worked for five years in the College of Business and Management at Northeastern Illinois University, rising from secretary to "program associate." She contends that the University failed to accommodate her efforts to have children. Medical care for her infertility was physically demanding and had side effects. Both the treatment and the circumstances that gave rise to it were emotionally draining. Erickson often did not come to work and was late on days when she did appear. She was fired after she became distraught and stayed home for six working days. Erickson does not contend that the attendance requirements were designed to discriminate against persons with disabilities. Instead she argues that the University should have tolerated absences and tardiness that it would not have condoned from a healthy employee. Invoking the Eleventh Amendment, the University filed a motion to dismiss, which the district court denied. 1998 U.S. Dist. Lexis 15779 (N.D. Ill. Oct. 1, 1998). The University's interlocutory appeal is within our jurisdiction, see Seminole Tribe, 517 U.S. at 52, even though the University does not assert sovereign immunity with respect to Erickson's claim under the Pregnancy Discrimination Act, 42 U.S.C. sec.2000e(k). Scott v. Lacy, 811 F.2d 1153 (7th Cir. 1987). Cf. Wisconsin Department of Corrections v. Schacht, 524 U.S. 381 (1998). The United States intervened as a party in this court to defend the ADA's constitutionality. See 28 U.S.C. sec.2403(a).

Three times during the last four Terms, the Supreme Court has addressed the extent of legislative power under sec.5. Kimel v. Florida Board of Regents, 120 S. Ct. 631 (2000); Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999); Boerne v. Flores, 521 U.S. 507 (1997). Thrice it has stressed that the language of sec.5, which gives Congress the power to "enforce" the Fourteenth Amendment, must be taken seriously. Statutes that create new rights, or expand old rights beyond the Fourteenth Amendment's bounds, do not "enforce" that amendment.

Boerne dealt with the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. sec.sec. 2000bb to 2000bb-4, a response to Employment Division v. Smith, 494 U.S. 872 (1990). Smith had held that the Free Exercise Clause of the First Amendment never requires accommodation of religiously inspired practices, so that laws neutral with respect to religion are valid. The RFRA, by contrast, obliged states to accommodate practices associated with religion. The Court held that an accommodation requirement could not be thought to "enforce" a constitutional norm that does not require accommodation. Florida Prepaid held that Congress may not use sec.5 to abrogate state sovereign immunity on the ground that statutory rights are "property" under the Fourteenth Amendment. Kimel held that sec.5 does not support the Age Discrimination in Employment Act, 29 U.S.C. sec.sec. 621-34, because although the ADEA forbids consideration of an employee's age unless age is a "bona fide occupational qualification reasonably necessary to the normal operation of the particular business", sec.623(f)(1), the Constitution's own requirement is considerably more lenient. The Equal Protection Clause permits a state to consider a person's age unless age lacks a rational relationship to the state's objective. Most consideration of age in employment therefore is constitutional; but under the ADEA most consideration of age is forbidden; Kimel therefore held that the ADEA sets up an independent rule and does not "enforce" the Constitution's rule.

Twenty-three days before the Supreme Court decided Boerne, we held in Crawford v. Indiana Department of Corrections, 115 F.3d 481, 487 (7th Cir. 1997), that sec.5 supports Title II of the ADA, which deals with public services. Our opinion analogized the ADA to the ADEA and observed that the latter statute had been applied to states in private litigation. Kimel shows that if our analogy to the ADEA is precise, then Crawford is no longer authoritative; Florida Prepaid and Boerne likewise call for a fresh look at the subject. Elsewhere a great deal of ink has been spilled on this question. After Boerne but before Kimel, panels of five appellate courts held that sec.5 supplies the necessary legislative power, though there was one squarely contrary holding by a court en banc. Compare Muller v. Costello, 187 F.3d 298 (2d Cir. 1999); Coolbaugh v. Louisiana, 136 F.3d 430 (5th Cir. 1998); Clark v. California, 123 F.3d 1267 (9th Cir. 1997); Martin v. Kansas, 190 F.3d 1120 (10th Cir. 1999); and Kimel v. Florida Board of Regents, 139 F.3d 1426, 1433, 1441-44 (11th Cir. 1998), with Alsbrook v. Maumelle, 184 F.3d 999 (8th Cir. 1999) (en banc). The fourth circuit is internally divided. Although Amos v. Maryland Department of Public Safety, 178 F.3d 212 (4th Cir. 1999) (rehearing en banc granted Dec. 28, 1999), holds that private ADA litigation may proceed against state prisons, Brown v. North Carolina Division of Motor Vehicles, 166 F.3d 698 (4th Cir. 1999), held that a regulation, based on the ADA, requiring the state's Division of Motor Vehicles to accommodate disabled drivers, is unconstitutional. Recently a divided panel of the ninth circuit disagreed with Brown. See Dare v. California Department of Motor Vehicles, 191 F.3d 1167 (9th Cir. 1999). The Supreme Court's opinion in Kimel calls all of these decisions into question, and we think it best to analyze the subject afresh rather than to rehash pre-Kimel conclusions in and out of this circuit. Believing that the Supreme Court would tackle the issue before July, the second circuit declined to reconsider Muller in light of Kimel. See Kilcullen v. New York State Department of Labor, 2000 U.S. App. Lexis 2714 (2d Cir. Feb. 24, 2000). But settlements have dashed that hope; we therefore undertake independent consideration.

Whether Congress has authorized federal litigation against states is our initial question. Kimel answered yes for the ADEA, see 120 S. Ct. at 640-42, and the same answer is appropriate for the ADA. By incorporating 42 U.S.C. sec.2000e, the ADA defines persons, and thus employers, to include units of government. 42 U.S.C. sec.12111(5)(A), (7). Fitzpatrick held that sec.2000e is a sufficiently clear statement. Section 12202 adds that "[a] State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter." Finally, just in case there were doubt, sec.12101(b)(4) invokes all possible sources of authority to enact the ADA, "including the power to enforce the fourteenth amendment".

On the question whether a statute such as the ADA enforces the Fourteenth Amendment, Kimel establishes two principal propositions. First, because the rational-basis test applies to age discrimination, almost all of the ADEA's requirements stand apart from the Constitution's rule. Most age discrimination is rational, and therefore constitutional, yet the Act forbids it. The ADEA therefore does not "enforce" the Fourteenth Amendment. 120 S. Ct. at 645-48. Second, there is no need for prophylactic rules to catch evasions of the rational-basis test by state governments. Congress did not find that such a problem exists, and there is no evidence of one. The ADEA therefore cannot be understood as enforcement legislation. 120 S. Ct. at 648-50. Both of these propositions are true of the ADA as well--indeed, the ADA is harder to conceive as "enforcement" of the Fourteenth Amendment than is the ADEA. Under the ADEA employers must ignore age but are free to act on the basis of attributes such as strength, mental acuity, and salary that are related to age. Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993). In other words, the ADEA forbids disparate treatment but not disparate impact. EEOC v. Francis W. Parker School, 41 F.3d 1073, 1077 (7th Cir. 1994); Anderson v. Baxter Healthcare Corp., 13 F.3d 1120 (7th Cir. 1994). Likewise with the Constitution and most other employment-discrimination laws. E.g., Troupe v. May Department Stores Co., 20 F.3d 734 (7th Cir. 1994) (the Pregnancy Discrimination Act does not require accommodation). Title I of the ADA, by contrast, requires employers to consider and to accommodate disabilities, and in the process extends beyond the anti-discrimination principle. 42 U.S.C. sec.12112(b)(5)(A), (6) (defining failure to accommodate, and criteria with disparate impacts, as "discrimination"). (Some other...