Prohibited Discrimination Under the Americans with Disabilities Act.

The Americans With Disabilities Act (ADA) [1] protects individuals with disabilities from discrimination based upon their disability. The protection extends to discrimination in a broad range of activities, including public services, [2] public accommodations, [3] and employment. [4] The ADA's prohibition against disability discrimination applies to the vast majority of private and public employers in the United States. [5]

However, not all individuals with disabilities are protected by the ADA. To be protected, individuals with disabilities must demonstrate that they are otherwise qualified for the job they seek, can perform the essential functions of that job with or without reasonable accommodation, and have a disability that substantially limits a major life activity and suffered discrimination because of their disability. [6]

WORKPLACE DISCRIMINATION

The ADA prohibits employer discrimination against qualified individuals with a disability because of their disability in regard to application procedures, hiring and firing, promotions, pay, training, and other "terms, conditions, and privileges of employment." [7] This broad prohibition applies to the entire range of employer-employee relations, including such matters as testing, work assignments, discipline, leave, benefits, and lay-offs and recalls. In addition, the ADA prohibits retaliation against, and coercion of, individuals who seek the protection of the act, or in any way help those who do. [8]

Congress provided several examples of workplace discrimination, such as [9]

* limiting, segregating, or classifying disabled job applicants or employees in a way that denies them employment opportunities because of their disability;

* using the services of organizations, such as employment agencies, referral services, labor unions, or healthcare providers, that discriminate against the disabled;

* using standards, criteria, or administrative methods that discriminate on the basis of disability or perpetuate such discrimination;

* denying employment or job benefits to individuals because they have an association or relationship with someone who is disabled;

* not making a reasonable accommodation for the known disabilities of qualified applicants or employees or denying employment opportunities to them because of the obligation to reasonably accommodate their disabilities;

* using qualification standards, employment tests, or selection criteria that screen out or tend to screen out the disabled unless they are job related and consistent with business necessity; and

* using employment tests that measure applicants' disabilities, instead of their ability to do the job.

This is not an exhaustive list of all forms of workplace discrimination prohibited by the ADA. Some of these examples apply only to specific stages in the employer-employee relationship. However, one form of workplace discrimination--the failure to reasonably accommodate the known disabilities of applicants and employees--applies to all stages of the employment process. A discussion of the impact of the ADA on the workplace must begin with an understanding of the concept of reasonable accommodation.

REASONABLE ACCOMMODATION

The ADA itself does not specifically define the term "reasonable accommodation." It merely provides examples of employers' actions that may constitute reasonable accommodation. The list includes making physical facilities accessible to and usable by disabled persons; restructuring jobs; changing work schedules; initiating reassignments; modifying or acquiring equipment; changing tests, training materials, or policies; and providing readers or interpreters. [10]

Reasonable accommodation of disabilities is best understood in terms of ADA philosophy. An accommodation is any change in the workplace environment or in the way things are done in the workplace that gives individuals with disabilities equal employment opportunities. [11]

The Equal Employment Opportunity Commission (EEOC) has established general guidelines regarding the reasonable accommodation requirement. The accommodation provided by the employer must be effective. That means it must give individuals with disabilities the same opportunities as individuals without disabilities to compete for and perform jobs and to enjoy all of the benefits of the job. [12] It does not mean that the accommodation must ensure absolute equality of opportunity. [13]

The reasonable accommodation requirement applies only to needs in the workplace. It is not required to meet the personal needs of the employee with a disability or to fulfill personal preferences. [14] For example, employers do not have to accommodate disabled employees' preferences to work in warmer climates or provide them with devises that assist them in their lives both on and off the job.

An employer is obligated to accommodate only those persons who qualify for ADA protection, [15] and the accommodation obligation applies only to known disabilities. [16] Some disabilities are obvious, such as blindness or the loss of a limb. However, when the disability is not obvious, applicants and employees with disabilities have the responsibility to tell employers that accommodation is needed. [17] Employees do not have to use any "magic words" when seeking an accommodation. They simply must provide enough information to employers to alert them that accommodation may be needed. [18] When accommodation of a hidden disability is requested, employers are permitted to ask for documentation to support the request. [19] While it is the disabled employees' obligation to seek an accommodation, the EEOC requires that employers notify applicants and employees that accommodation is available if needed. [20] Employers should post notices outlining accommodation availability and should consider including the informa tion in employment applications, vacancy notices, and personnel policy manuals.

When the need for reasonable accommodation is established, the ADA encourages the individuals with disabilities and their employers to discuss the best ways to remove impediments caused by the disability. [21] The solution may be obvious and simple, and the problem quickly resolved. If the solution is not so obvious, the EEOC recommends an employer-employee dialogue involving several steps.

The parties should determine both the purpose and essential functions of the job held or sought by the individual with a disability. [22] They should then precisely identify the job-related limitations imposed by the disability and the various means by which the limitations may be accommodated to allow the disabled persons to perform the essential functions of the job. Employers should consider the preferences of the employees and applicants with disabilities, and they should identify accommodations together. [23] If either the employees with disabilities or employers refuse to participate in, or obstruct, this interactive process, courts are likely to give them an unsympathetic reception. [24]

If several effective accommodations are identified through these discussions, employers are free to choose among the possibilities, considering both cost and disruption to the business. [25] If employers offer a reasonable accommodation, the individuals with disabilities are free to reject it. [26] However, if disabled employees cannot perform the essential functions of the job without that accommodation, the employees may not be considered qualified under the ADA and, therefore, not protected by its provisions. [27]

One more general consideration regarding the reasonable accommodation is important. Employers are not required to change the essential functions of a job in order to accommodate a person's disability. [28] The purpose of the reasonable accommodation is to permit the individual with a disability to perform those functions, not to force employers to change the way they do business.

THE UNDUE HARDSHIP LIMITATION

The ADA requires that employers make only reasonable accommodations for the disabled. Congress stated that employers need not accommodate individuals with disabilities if the accommodation "would impose an undue hardship on the operation of the business of the covered entity." [29]

The ADA defines an undue hardship as an act involving significant difficulty or expense. [30] Congress specified these factors to be considered when deciding if accommodations are unduly burdensome: the nature of the accommodations and their costs; the total financial resources of the facility considering the accommodations; the employer's overall resources, including financial resources, size, number of employees, and the type and location of the employer's facilities; the nature of the operation of the employer; and the overall impact of the accommodations on the employer's operation. [31] Clearly, large employers with substantial resources will have a more difficult time convincing the EEOC and the courts that accommodations are unreasonable.

OTHER EXAMPLES OF WORKPLACE DISCRIMINATION

The ADA identifies several other employment practices that are discriminatory. Such practices are also prohibited by the statute.

Limiting, Segregating, or Classifying the Disabled

Limiting, segregating, or classifying the disabled in a way that adversely affects their job opportunities also is discrimination. [32] This prohibition is included to ensure that employers do not limit the employment opportunities of the disabled based upon myths and stereotypes or steer the disabled into certain work areas, job classifications, or promotional paths. The aim of the ADA is to ensure that the disabled are assessed on an individualized, case-by-case basis, and judged according to their abilities, rather than by their disabilities. Employers should not presume to know either what is best for disabled employees or what their capabilities are

Discriminatory Contractual Arrangements

It is also discrimination for an employer to participate in contractual or other arrangements that subject its applicants and employees with disabilities to discrimination. [34] As one court put it, the ADA prohibits "an entity from doing through a contractual relationship what it may not do directly." [35] For example, using an employment or referral agency that discriminates against the disabled to screen applicants could subject employers to discrimination claims under the ADA.

Two concepts are important regarding this form of discrimination. Employers are liable only for discrimination suffered by their own employees as a result of these arrangements. They are not liable because of the contractual arrangement for discrimination by the contractor against the contractor's own disabled employees. [36] In addition, the EEOC has made it clear that employers are liable for any discrimination suffered by its employees whether or not employers intended for the contractual relationship to be discriminatory. [37]

Relationship or Association with Disabled Persons

The ADA also prohibits employers from discriminating against applicants or employees because of their association or relationship with people known by the employer to be disabled. [38] In other words, if applicants or employees are otherwise qualified for employment, employers may not deny them job opportunities or benefits simply because they fear their associates or relations with disabilities will increase the employers' medical costs or cause excessive absenteeism by their employees. This protection extends to otherwise qualified persons even if they are not disabled themselves. [39] This is another provision of the ADA designed to prevent adverse job actions by employers based upon unfounded assumptions and stereotypes arising from employees' associations with the disabled. [40] Examples of this form of prohibited discrimination include employers' refusal to hire applicants based upon an unfounded assumption that they would miss work to care for a disabled relative or firing employees who do AIDS volunt eer work out of an unfounded fear that the employees will contract AIDS. [41]

While the ADA prohibits discrimination against otherwise qualified applicants and employees because of their association or relationship with disabled persons, the ADA does not require the employer to accommodate the relative's or associate's disability. For example, employees who have disabled spouses are not entitled to flexible work schedules or additional time off beyond that mandated by law or contract to care for the family member with a disability. The accommodation obligation extends only to qualified disabled applicants or employees. [42]

Utilization of Qualification Standards, Criteria, and Tests

Broadly stated, the ADA prohibits all employer discrimination against qualified individuals with disabilities in regard to all aspects of the employment relationship. [43] The final three examples of discrimination included in the ADA make it clear that Congress intended to bar disability discrimination not only in hiring and firing decisions, but also in all employment decisions impacting the disabled. These additional employment decisions include those regarding advancement, compensation, training, and "other terms, conditions, and privileges of employment." [44]

Specifically, the ADA prohibits covered employers from using any "standard, criteria, or methods of administration" that result in discrimination against the disabled. [45] This broad language has no limitation regarding the types of employment actions covered by the statute. Consequently, applicants and employees with disabilities may use the ADA to attack employer decisions regarding hiring, firing, promotions, transfers, compensation, reductions in force, provision of benefits--literally any employment decision that adversely impacts them.

Employers also are prohibited from using qualification standards, employment tests, and other selection criteria that "screen out or tend to screen out" a class of individuals with disabilities, unless the test, standard, or criteria is shown to be both job related and consistent with business necessity. [46] The prohibition extends to all types of selection criteria, including employment tests, vision and hearing requirements, and other physical requirements. [47]

Finally, employers are prohibited from selecting and administering employment tests that measure only individuals' disabilities rather than their actual abilities, skills, and aptitude to do the job. [48] This provision is meant to ensure that the disabled who are otherwise qualified for employment are not barred from employment simply because their disability prevents them from taking a test. For example, people with dyslexia may not be able to take a written test. If employers are aware of the applicants' dyslexia, they are required to reasonably accommodate their disability during the testing procedure (i.e., provide a reader or offer an oral test). [49] The only exception to this requirement is where the test is meant to judge a specific skill that is required to do the job being sought. For example, if applicants must be able to read to perform the job being sought, employers are permitted to test for that skill, without accommodation, because applicants who cannot read are not qualified for the positio n and, therefore, not protected by the ADA. [50]

The language that Congress used in prohibiting the use of discriminatory employment standards, criteria, and tests makes it clear that both intentional and unintentional discrimination violate the act. Using standards that "have the effect" [51] of discrimination on the basis of disability or that "screen out or tend to screen out" [52] the disabled is prohibited.

Prohibited unintentional discrimination against the disabled is known as disparate impact [53] (as opposed to disparate treatment or intentional discrimination). In order to challenge an employment standard or test under the ADA, disabled people only must show that the challenged standard or test has a disproportionate adverse impact [54] on the disabled claimant or on disabled people as a whole. They do not have to prove that the employer intended for the standard or test to be, or even knew that the standard or test was, discriminatory.

MEDICAL EXAMINATIONS AND INQUIRIES

The Preemployment Stage

During the preemployment (application) stage of the employment process, employers are not permitted to ask any questions or conduct any medical examinations that identify applicants' disabilities or the nature and extent of their disabilities. [55] This prohibition may even apply if applicants are not disabled. [56] Employers can, however, make preemployment inquiries concerning applicants' ability to perform, with or without reasonable accommodation, essential, job related functions. [57] For example, employers may ask one-legged applicants for a home washing machine repairman position to explain or demonstrate how they would negotiate basement steps carrying repair tools. However, the employer may not inquire regarding the nature or severity of the disability. [58]

The Conditional Offer Stage

Once employers decide to hire applicants, they may require those applicants to undergo medical examinations and even make their job offers conditional on passing the medical examinations. [59] There is no requirement that these medical examinations be job related or a matter of business necessity. The only prerequisites established by the statute are that employers require that all applicants (disabled and nondisabled) be subject to medical examinations and all medical information be kept confidential. [60]

If medical examinations conducted at the conditional offer stage reveal a disability, employers are required to consider reasonable accommodations that would permit the disabled applicant to perform the essential functions of the job. If no reasonable accommodation is possible, employers may withdraw the conditional offer of employment. [61]

Medical Examinations of Employees

Employers may require their employees to undergo medical examinations or inquire if they are disabled only if the inquiry or examination is job related and a matter of business necessity. Practically, this limitation means that employers may make inquiries regarding employees' disabilities or require medical examinations only when questions arise concerning their employees' ability to perform the essential functions of their jobs or when employers are required to by medical standards, law, or business necessity. [62] Courts have taken the view that requiring employees to undergo fitness-for-duty examinations does not violate the ADA when there is an honest question regarding the employees' ability to perform the essential functions of the job or whether employees represent a danger. [63]

Many employers have voluntary wellness programs that include testing for high blood pressure, weight, and disease. The ADA does not prohibit such medical screening if the programs are voluntary, the information collected is kept confidential, and the information is not used to limit eligibility for health benefits. [64]

Drug Testing

Tests for the use of illegal drugs [65] are not considered medical examinations for purposes of the ADA. [66] In fact, the ADA is neutral regarding the issue of testing for illegal drugs. [67] Employers consequently may inquire about applicants' or employees' current illegal use of drugs at any stage of the employment process and may require applicants and employees to submit to drug tests, whether or not the tests are job-related and a matter of business necessity. [68]

DEFENSES TO DISCRIMINATION CLAIMS

In order to win a disability discrimination case, plaintiffs must establish that they are qualified for the position sought, can perform the essential functions of the job with or without reasonable accommodation, and suffered an adverse employment action because they are disabled. [69] If plaintiffs cannot prove any one of these elements, their claims may be dismissed. [70]

Nondiscriminatory Reasons

Once ADA claimants have proved the basic elements of their cases, the burden shifts to employers to show that the adverse employment action was taken for legitimate, nondiscriminatory reasons. [71] If employers come forward with such reasons, the burden will shift back to the claimant to show that the legitimate reasons offered by employers are pretexts for disability discrimination. [72]

Undue Hardship Limitations

Although the ADA obligates employers to reasonably accommodate the disabilities of employees and applicants, it does not require accommodations if they would create undue hardships on employers. [73] Consequently, employers may defend against law suits by showing that they failed to accommodate plaintiffs' disabilities because the accommodation was too costly, disruptive, extensive, or would fundamentally alter the nature or operation of their business. [74]

Job related, Business-necessity Qualifications and Standards

Some claims of disability discrimination allege that the employer used employment qualifications, standards, or tests that screened out or tended to screen out the disabled. Even if that proves to be true, employers may defend the standards or tests by showing they are job related, matters of business necessity, and that the disability cannot otherwise be reasonably accommodated. [75] A standard or test is job related if it concerns any skill or trait that is required to do the job under consideration. It is a matter of business necessity if it concerns an essential function of the job applied for or desired.

Direct Threat Limitation

The ADA also permits employers to take adverse employment actions against the disabled if they can demonstrate that they pose a direct threat to the health or safety of other employees. [76] The Supreme Court has made it clear that the threat must be a significant one, as viewed from the perspective of employers. [77] To claim this defense, employers must show that the threat assessment is objectively reasonable, meaning it is based upon medical or other objective evidence. A mere belief that the disabled person poses a danger, even if held in good faith, is not enough to claim this defense. [78]

CONCLUSION

Any employers' decision or action that adversely impacts disabled applicants or employees subjects them to claims of disability discrimination under the ADA. Disability discrimination claims can arise from decisions made during the application process, as well as during the employer-employee relationship. Discrimination claims can even arise when employers do not intentionally discriminate.

Many claims of workplace discrimination allege a failure to reasonably accommodate known disabilities of applicants or employees. The ADA obligates employers to make such accommodations unless to do so would create an undue hardship for them. The ADA also recognizes other forms of workplace discrimination: classifying the disabled in a way that limits their employment opportunities; using tests and standards that adversely impact the disabled; discriminating against people who have a relationship with a disabled person; and entering into a contract that results in, or perpetuates, disability discrimination against the employers' own applicants or employees.

If a claim of disability discrimination is made, employers may use various defenses. They may argue that their decision was made for legitimate, nondiscriminatory reasons. They also may show that they could make no reasonable accommodation for the person's disability without undue hardship. If the claim is that the employer's test or standard resulted in discrimination, employers may show that the standard or test is job related and a matter of business necessity. Employers also may demonstrate that hiring or keeping the disabled employee would pose a direct risk of harm to others in the workplace.

Endnotes

(1.) 42 USC 12101 et. seq.

(2.) 42 USC 12131-12165.

(3.) 42 USC 12181-12189.

(4.) 42 USC 12111-12134.

(5.) The United States (with the exception of Congress for some purposes), Indian tribes, and tax exempt bona fide private membership clubs are not covered by the act. See 42 USC 1211(5)(B). The act also exempts employers with fewer that fifteen employees. See 42 USC 12111(5)(A). The application of the ADA to states and state agencies is unclear. Some courts have held that states are not subject to the ADA because of the provisions of the Eleventh Amendment to the Constitution. See Alsbrook v. City of Maumelle, 184 F.3d 999 (8th Cir. 1999).

(6.) For a more comprehensive discussion of individuals' qualification for ADA protection, see Thomas D. Colbridge, "The Americans with Disabilities Act," FBI Law Enforcement Bulletin, September 2000, 26-31.

(7.) 42 USC 12112(a).

(8.) 42 USC 12203.

(9.) 42 USC 12112(b)(1)-(7).

(10.) 42 USC 12111(9)(A) and (B).

(11.) 29 CFR Pt. 1630, App. 1630.2(o).

(12.) Equal Employment Opportunity Commission, "Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act," March 1, 1999.

(13.) Id. See also Richard N. Block and Benjamin W. Wolkinson, Employment Law: The Workplace Rights of Employees and Employers, (Oxford, UK: Blackwell Publishers, Inc. 1999), 143-144.

(14.) 29 CFR Pt. 1630, App., 1630.9.

(15.) Supra note 6.

(16.) 42 USC 12112(b)(5)(A).

(17.) Burch v. Coca-Cola Co., 119 F.3d 305 (5th Cir. 1997), cert. denied 118 S. Ct. 871 (1988).

(18.) Taylor v. Principal Financial Group. Inc., 93 F.3d 155, cert. denied 117 S. Ct. 586 (1996).

(19.) 29 CFR Pt. 1630, App., 1630.9.

(20.) Equal Employment Opportunity Commission, "Technical assistance in the employment provisions of the ADA: explanation of key legal requirements," Bureau of National Affairs, January 28, 1992, Daily Labor Report, No.18.

(21.) Id. See also Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278 (11th Cir. 1997).

(22.) For a discussion of the concept of "essential functions" of a job, see supra note 6 (Colbridge).

(23.) Supra note 16.

(24.) Schmidt v. Methodist Hospital of Indiana, Inc. 89 F.3d 342 (7th Cir. 1996).

(25.) Supra note 16.

(26.) 42 USC 12201(d).

(27.) Keever v. City of Middletown, 145 F.3d 809 (6th Cir. 1998), cert. denied 119 S. Ct. 407 (1998).

(28.) 29 CFR Pt. 1630, App. 1630 2(o); Benson v. Northwest Airlines, Inc. 62 F.3d 1108 (8th Cir. 1995).

(29.) 42 USC 12112(b)(5)(A).

(30.) 42 USC 12111 10(A).

(31.) 42 USC 12111 10(B).

(32.) 42 USC 12112(b)(1).

(33.) 29 CFR 1630.5.

(34.) 42 USC 12112(b)(2).

(35.) Piquard v. City of East Peoria, 887 F.Supp 1106 (C.D.Ill. 1995).

(36.) 29 CFR Pt. 1630, App., 1630.6.

(37.) Id.

(38.) 42 USC 12112(b)(4).

(39.) 29 CFR Pt. 1630, App. 1630.8.

(40.) Oliveras-Sifre v. Puerto Rico Department of Health, 241 F.3d 23 (1st Cir. 2000).

(41.) 29 CFR Pt. 1630, App., 1630.8.

(42.) Der Hartog v. Wasatch Academy, 129 F.3d 1076 (10th Cir. 1997).

(43.) 42 USC 12112(a),

(44.) Id.

(45.) 42 USC 12112(b)(3).

(46.) 42 USC 12112(b)(6).

(47.) 29 CFR Pt. 1630, App., 1630.10.

(48.) 42 USC 12112(b)(7).

(49.) 29 CFR Pt. 1630, App., 1630.11.

(50.) Id.

(51.) Supra note 45.

(52.) Supra note 46.

(53.) See generally Griggs v. Duke Power Company, 401 U.S. 424 (1971)(disparate treatment claim under Title VII); Watson v. Forth Worth Bank and Trust, 487 U.S. 977 (1988)(Title VII claim); and Smith v. Xerox Corporation, 196 F.3d 358 (2nd Cir. 1999).

(54.) A disproportionate adverse impact is judged on a case-by-case basis. Generally, the EEOC considers an adverse impact disproportionate if the selection rate for the protected class (in this case, disabled persons) is less than 80 percent (4/5ths) of the class with the highest selection rate. This standard is known as the "4/5ths Rule." 29 CFR 1607.4(D).

(55.) 42 USC 12112(d)(2)(A); Harris v. Harris & Hart. Inc., 206 F.3d 838 (9th Cir. 2000).

(56.) Griffin v. Steeltek, Inc, 160 F.3d 591 (10th Cir. 1998), cert. denied Steeltek, Inc. v. Griffin, 526 U.S. 1056 (1999).

(57.) 42 USC 12112(d)(2)(B).

(58.) 29 CFR Pt. 1630, App., 1630.14(a).

(59.) 42 USC 12112(d)(3); 29 CFR Pt. 1630, App., 1630.14(b); Buchanan v. City of San Antonio, 85 F.3d 196 (5th Cir. 1996); Holiday v. City of Chattanooga, 206 F.3d 637 (6th Cir. 2000).

(60.) 42 USC 12112(d)(3)(A)and(B). There are three exceptions to this confidentiality requirement: supervisors and managers may be given medical information regarding restrictions on the work and duties of the employee, as well as an accommodations that may be necessary; safety personnel may be told of conditions that may require their attention; and government com-pliance officials may be supplied relevant information.

(61.) Supra note 59.

(62.) 29 CFR Pt. 1630, App., 1630.14(c)

(63.) Yin v. State of California, 95 F.3d 864 (9th Cir. 1996); Sullivan v. River Valley School District, 197 F.3 804 (6th Cir. 1999); Krocha v. City of Chicago, 203 F.3d 507 (7th Cir. 2000).

(64.) 29 CFR Pt. 1630, App., 1630.14(d).

(65.) For a more comprehensive discussion of the ADA's treatment of drug and alcohol abuse, see Thomas D. Colbridge, "Defining Disability Under The Americans with Disabilities Act," FBI Law Enforcement Bulletin, October 2000, 28-32.

(66.) 42 USC 12114(d)(1).

(67.) 42 USC 12114(d)(2).

(68.) Buckley v. Consolidated Edison of New York, Incorporated, 155 F.3d 150 (2nd Cir. 1998).

(69.) McPaul v. Board of Commissioners of Madison County, 2000 WL 1156427 (7th Cir. 2000); Otting v. J.C. Penney Company, 2000 WL 1060385 (8th Cir. 2000).

(70.) For a fuller discussion of the concepts of qualified individuals and disability under the ADA, see supra note 6 (Colbridge); and supra note 65 (Colbridge) October 2000, 28-32.

(71.) McDonnell Douglas v. Green, 411 U.S. 792 (1973)(Title VII); Kocsis v. Mulit-Care Management, Inc. 97 F.3d 876 (6th Cir. 1996).

(72.) Id.; Collings v. Longview Fibre Co., 63 F.3d 828 (9th Cir. 1995), cert, denied 116 S. Ct. 711.

(73.) 42 USC 12112(b)(5)(A).

(74.) 29 CFR Pt. 1630, App., 1630.2(p); Cisneros v. Wilson, 2000 WL 1336658 (10th Cir. 2000); Holbrook v. Kerrville State Hospital, 112 F.3d 263 (5th Cir. 1998).

(75.) 42 USC 12113(a).

(76.) 42 USC 12113(b); Bragdon v. Abbott, 118 S. Ct. 2196 (1998); Rizzo v. Child's World Learning Centers, Inc., 213 F.3d 209 (5th Cir. 2000).

(77.) School Board of Nassau County v. Arline, 480 U.S. 273 (1987) (Rehabilitation Act case); Bragdon v. Abbott, supra note 74.

(78.) Id.