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State-Level Activism in the Disability Context: Ensuring Protections for People with Disabilities Through American Federalism and the Fourteenth Amendment Equal Protection Clause.

"[S]tate courts can be the laboratories for constitutional innovations that can work their way into federal understandings." (1)

Although disabilities come in many diverse physical, mental, and emotional capacities, there is one component that people with disabilities share in common-exclusion. (2) As a classification under the Equal Protection Clause, disability is at a crossroads. (3) State Constitutions, courts, and statutes are at the forefront of a legal revolution to expand protections to individuals with disabilities and guard their civil liberties under the Fourteenth Amendment. (4) The action of the government in ensuring its citizens' civil rights protections is an act of state-level activism that may be used to influence and motivate the federal government to act accordingly with state rights. (5)

The Americans with Disabilities Act ("ADA") provided a pivotal opportunity for disability rights under federal law. (6) States were then capable of expanding upon the rights granted by the ADA and were able to use their autonomy to progress the rights of individuals with disabilities. (7) Seventeen states have chosen to act within their autonomous power and expand the rights of people with disabilities by enacting their own Restroom Access Act ("RAA"), a statute first passed in Illinois allowing access to private restrooms for those who have an eligible medical condition. (8) The utilization of the RAA has become an example of state-level civil rights activism and ensures protections for people with disabilities under the Fourteenth Amendment. (9)

Part 1 of this note will address the protections from discrimination guaranteed under the Fourteenth Amendment. (10) Part II will address the role of both the state and federal legislature in disability rights with the Americans with Disabilities Act, and Part III will discuss the role of the state in enforcing more stringent civil rights protections. (11) Part IV of this note will assess the Restroom Access Act and its provisions, and Part V will discuss advantages and benefits of equal treatment under the ADA and the effects of equal denial in accessing restrooms. (12) Part VI will distinguish the implications in state courts among states that have not enacted the RAA. (13) Part VII will evaluate the potential for a Supreme Court case to arise from violations of the Fourteenth Amendment and the ADA, potential legislative amendments to the ADA by incorporating the RAA, and expanding protections for people with disabilities as a potential quasi-suspect class. (14) Part VIII will conclude the analysis for expanding protections for individuals with disabilities. (15)

I. Fourteenth Amendment Equal Protection Clause

Added to the Consdtution shortly after the Civil War, the Fourteenth Amendment was passed in 1868 to ensure fair treatment by states to newly-freed slaves. (16) The Fourteenth Amendment protects individuals from states' policies that may discriminate against particular classes of individuals. (17) It is similar to the Fifth Amendment by preventing the government and its agents from engaging in unreasonable discrimination on the basis of classification. (18) The difference being the Fifth Amendment pertains to the federal government and the Fourteenth Amendment applies to the states. (19) In effect, neither the federal government nor state governments can discriminate against a group of individuals on the basis of its protected category. (20) The guarantee of equal protection is limited to state action. (21) The Fourteenth Amendment extends the actions of the state and state agents, not private entities. (22)

A significant element of the Equal Protection Clause of the Fourteenth Amendment is the "protected" classification upon a particular group of individuals. (23) A protected class must first be formed before gaining the full protection of the Equal Protection Clause. (24) The current protected categories are: race, national origin, and gender. (25) The court refers to these categories as "suspect classes" or "quasi-suspect classes" and uses these determinations to assert a standard of review brought for claims within these categories. (26) Race and national origin are the only two suspect classifications. (27) Gender is qualified as a "quasi-suspect class" which received a slightly less stringent level of review by the Court. (28) All other claims based on the Equal Protection Clause are reviewed under a default category of rational basis review. (29)

The Court has provided criteria, which may be used to determine whether a group of individuals constitute a suspect class. (30) First, the individuals must have faced a history of prior discrimination or "purposeful unequal treatment." (31) Second, the class must be based on "an immutable characteristic determined solely by the accident of birth." (32) Third, the characteristic must be "so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy." (33) Fourth, the group may be "relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." (34)

The Fourteenth Amendment has been a powerful tool to eradicate discrimination and gain civil rights protections in areas of gender and race, but the Supreme Court has not utilized the Fourteenth Amendment similarly for people with disabilities. (35) The case of City of Cleburne v. Cleburne Living Center, Inc. was a monumental opportunity for people with disabilities to be determined a suspect class under the Fourteenth Amendment Equal Protection Clause. (36) In Cleburne, the Supreme Court did not consider people with disabilities as a suspect class, ultimately allowing the lowest level of scrutiny for states to succeed against a discrimination claim. (37) The 1985 decision has since made it easier for states to enact statutes discriminating against people with disabilities. (38) To pass under rational basis review, the government must prove that the law was rationally related to a legitimate government interest. (39) For this reason, most disability-based progress has been made by challenging statutes, not by bringing claims under the Fourteenth Amendment. (40)

II. Civil Rights Through Legislation: Americans with Disabilities Act of 1990

In 1990, Congress passed the ADA to provide legal recourse for people who have faced discrimination on the basis of disability. (41) The ADA's primary purpose is to eradicate discrimination toward individuals with disabilities by ensuring equal access, opportunity, and advantages for disabled individuals compared to their non-disabled counterparts. (42) Congress asserted that "unlike individuals who have experienced discrimination on the basis of race, color, sex, national origin, religion, or age, individuals who have experienced discrimination on the basis of disability have often had no legal recourse to redress such discrimination." (43) The ADA was intended "to invoke the sweep of congressional authority, including the power to enforce the Fourteenth Amendment . . . to address the major areas of discrimination faced day-to-day by people with disabilities." (44) The ADA is an extension of the Fourteenth Amendment because it creates statutory protections for people with disabilities. (45)

The ADA has undergone substantial amendments to emphasize its purpose and has continued to expand protections for people with disabilities. (46) In 2008, Congress passed the Americans with Disabilities Act Amendments Act ("ADAAA"), a separate Act to amend the original ADA. (47) The AD AAA made a significant number of changes to the provisions and definitions of the ADA to ensure the terms would be broadly construed and applied without extensive analysis. (48) Since the 2008 amendments, the ADA has been applied more broadly to grant the most expansive protections to people with disabilities, and states are federally mandated to comply with the ADA amendments. (49)

The ADA has five titles for coverage: Title I Employment, Title II State & Local Government, Title III Public Accommodations and Commercial Facilities, Title IV Telecommunications, and Title V Miscellaneous. (50) Title III provisions of the ADA encompass non-discrimination regulations in places of public accommodation. (51) Title III prohibits discrimination on the basis of disability in "places of public accommodation," which is designated into twelve categories listed in the statute. (52) A '"place of public accommodation' means a facility operated by a private entity whose operations affect commerce and fall within at least one" ADA category. (53) Similar to the Fourteenth Amendment, the ADA is a powerful means of protection for a particular class of individuals, and does so through a separate constitutional power: the Supremacy Clause. (54)

III. State-Level Civil Rights Activism and the Role of Federalism

The Supremacy Clause of the U.S. Constitution establishes that federal law preempts state law regardless of whether there is a conflict between the laws. (55) States have the ability to expand upon federal requirements to broaden the scope of application and afford individuals more protections than federal law. (56) The more stringent of the two laws governs so long as the state law does not frustrate the federal purpose. (57) The ADA is a federal law that preempts state law regardless of whether the states' preceding laws conflict. (58) States have the ability to broaden the scope of civil rights by adding protected categories and contributing to the working definitions of the ADA. (59) Civil rights laws are applied broadly to protect individuals from discrimination, and when state laws are stricter in achieving that outcome, it will be the state's law that prevails. (60) Expansive civil rights protections may originate in state courts, constitutions, or legislatures that extend greater protections to its citizens than the federal government. (61) The civil rights implications are far greater for states to motivate Congress than to wait for the legislature because Congress will often act in accordance with pressure brought from the state level and not solely on its own accord. (62)

In Windsor v. United States, for example, a same-sex couple, Edith Windsor and Thea Clara Spyer, who married in Canada and whose marriage was recognized in New York, challenged the federal estate tax exemption upon the death of the deceased spouse. (63) Under the federal tax law, a deceased spouse could leave assets to the other spouse without incurring estate taxes. (64) Although their marriage was recognized in New York, a statute, the Defense of Marriage Act ("DOMA"), refused to consider same-sex couples legally married compared to their non-same-sex couple counterparts under federal law. (65) The Supreme Court held that DOMA violated the Equal Protection Clause of the Fourteenth Amendment because it failed to recognize same-sex couples regardless of the state constitution validating the marriage. (66) The Court decided that states have the right to determine their protections, by defining marital relationships, and that DOMA went against legislative and historical precedent by undermining the state's authority. (67)

The Restroom Access Act ("RAA") is an example of civil rights through legislation and the Supremacy Clause. (68) The RAA, also referred to as Ally's Law, was enacted in Illinois in 2005, and was the first of seventeen state laws regarding restroom access. (69) At a Chicago shopping mall, at the age of fourteen, Ally Bain requested to use the restroom facilities due to her inflammatory bowel disease ("IBD") condition, Crohn's. (70) After a retailer denied her use of the restroom stating no public restroom was available, Ally publically defecated herself due to her medical condition. (71) In response, Ally's law, or the RAA, specifically affords access to private, employee-only restrooms to individuals with an eligible medical condition. (72) Thus far, seventeen states have enacted versions of the RAA to allow individuals with an eligible medical condition to use private restrooms in retail establishments (73) The RAA is a state enacted law with slight variations between each state's version, nevertheless, each statute allows people with disabilities to access private, employee-only toilet facilities in places of public accommodation. (74) The RAA is an extension of the ADA. (75) Each state may implement and interpret the terms of the statute to provide access to restrooms for individuals who need urgent access. (76) States that have passed their own version of the RAA are: Colorado, Connecticut, Delaware, Illinois, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Ohio, Oregon, Tennessee, Texas, Washington, and Wisconsin. (77) New York was the most recent state to enact the RAA in December 2017. (78)

IV. RAA in Application

The Illinois RAA set a new standard of access for disabled individuals and further expanded the protections of the ADA. (79) Although the ADA is federally enforced, seventeen states have now customized statutes modeled from the Illinois RAA that expand protections to disabled individuals. (80) New York became the most recent state to pass a version of the RAA on December 18, 2017 titled the "Crohn's and Colitis Fairness Act." (81) Each state's version of the RAA applies to "eligible medical conditions" including Crohn's disease, irritable bowel disease ("IBD"), ulcerative colitis, or other conditions that result in an urgency to use the restroom. (82) Each state's RAA borrows language and standards from the ADA. (83) The Restroom Access laws abide by the "readily achievable" standard set out by the ADA to not create an undue burden in a place of public accommodation. (84) Application of the RAA's specific provisions varies by state, and although each state law borrows language from the ADA, each state controls how its version of the Act will be enforced and how the provisions will be defined. (85) While the majority of states define an "eligible medical condition" as Crohn's disease, ulcerative colitis, inflammatory bowel disease, or another medical condition that requires the frequent use of the restroom, Michigan has broadened their definition to include pregnancy and temporary disabilities, although the ADA does not recognize pregnancy as a disability. (86) One state, Michigan, has broadened their definition to include pregnancy and temporary disabilities, although the ADA does not recognize pregnancy as a disability. (87) Some states have settled on signed physicians' notes for proof of a medical condition while others have initiated a formal identification card through the state's Department of Health or an independent agency. (88) Each state's approach provides access to private restrooms when public options are not available. (89) Both state law and precedent aim to define the terms by which individuals with an eligible medical condition should be granted access to private restrooms, and in doing so, afford the opportunity to further define what a "reasonable accommodation" is in a place of public accommodation. (90)

The RAA's criteria varies by state and borrows language from the ADA to maintain consistency with the ADA's purpose. (91) The RAA grants restroom access in "retail establishments," which consists of "any business or place where members of the public have access as invitees or licensees." (92) The RAA requires a retail establishment with a private employee-only restroom to allow medically eligible individuals to use the facilities so long as: (1) the customer has written documentation by a physician; (2) there are a minimum of three employees working at the time; (3) the establishment does not normally allow public use of the restroom; (4) the use of the restroom would not create a safety, health, or security risk; and (5) a public restroom is not immediately accessible to the customer. (93) Each state statute provides access to a "customer" who is "lawfully on the premises," but it has not been determined whether a customer is an individual who has purchased an item or service from the establishment, or is any member of the public regardless of whether the member is engaging or has engaged in an act of commerce. (94) This distinction may be enough for a business to deny access to a non-purchasing patron. (95) The RAA does not clearly define "not immediately available." (96) It is unclear whether a restroom not being immediately available would give an establishment the right to deny access if a business with a public restroom were to be located down the street, on the opposite end of a mall, or perhaps next door. (97)

Oregon shifted from "retail establishment" to "place of public accommodation" in its version of the RAA, which expanded the areas in which access would be afforded to individuals and enforced the statute regardless of whether the establishment was commercial in nature. (98) Sixteen of the seventeen states that have enacted the RAA enforce the statute amongst retail establishments, but in doing so, omit establishments that are not retail-based. (99) Enforcing the RAA solely amongst retail-based establishments narrows the scope of enforcement and decreases the qualifying areas of access. (100) This change in term in Oregon allows any facility to be accessible to individuals regardless of whether it is commercial, retail, rental, educational, or an establishment open to servicing the public. (101) Using the term "public accommodations" instead of "retail establishment" expands where eligible individuals may receive access to a restroom. (102) Massachusetts, Colorado, Illinois, Minnesota, Oregon, Washington, and Wisconsin provide an exemption to gas stations and retail establishments less than 800 square feet in their versions of the RAA. (103) Each of the seventeen statutes require documentation of the disability by a written physician's note or equivalent. (104) Delaware, Kentucky, Maryland, Oregon, Texas, Washington, and Wisconsin issue identification cards by a healthcare provider, non-profit organization, or licensed medical professional to present to the retail establishment's employees for restroom access. (105) Maryland deviates from the other states by enforcing the statute upon a retail establishment that employs twenty or more employees, while the majority of other states require that only three or more employees be on duty when an eligible person uses the restroom. (106) Michigan is the only state that has expanded eligibility to include pregnancy and temporary disabilities. (107) Each state's guidelines are an extension to those mandated by the ADA, but application and practices of any expanded protections are left to the discretion of the individual states. (108)

V. ADA Participation in Unequal Benefit

Title III of the ADA contains a general practice and procedure provision for places of public accommodation, which ensures that benefits and advantages are equal to non-disabled persons. (109) In application, a service may be denied to both a disabled and non-disabled individual, but as a result, may leave the disabled individual at a disadvantage compared to a non-disabled person. (110) The ADA ensures that disabled individuals are protected from discrimination in places of public accommodation and aims to broadly apply its provisions in favor of such expansive coverage. (111) Section 12182 (b)(l)(A)(ii) of the ADA entitled, "Participation in Unequal Benefit" states:
   It shall be discriminatory to afford an individual or class of
   individuals, on the basis of a disability or disabilities of such
   individual or class, directly, or through contractual, licensing,
   or other arrangements with the opportunity to participate in or
   benefit from a good, service, facility, privilege, advantage, or
   accommodation that is not equal to that afforded to other
   individuals. (112)


The ADA focuses on the opportunity for people with disabilities to receive equal benefit or advantage that may be afforded to other individuals. (113) The general practice and procedure provision of Title III aims to ensure that individuals with a disability receive equal advantage and benefits as individuals without a disability when seeking an accommodation. (114)

This concept is illustrated in Currier v. National Board of Medical Examiners. (115) Sophie Currier, a medical student and nursing mother, requested additional break time during the United States Medical Licensing Exam to express breast milk. (116) Her request was denied. (117) Each student was allowed forty-five minutes of break time during the course of the exam. (118) The ADA applies to the National Board of Medical Examiners ("NBME"), and the NMBE must provide a reasonable accommodation to an individual with a disability. (119) Students were permitted to spend their breaks however they wished and all students were given forty-five-minute breaks. (120) The Massachusetts Supreme Judicial Court held in favor of Currier, and reasoned that "[a]ll persons shall have the right to full and equal accommodations, advantages, facilities, and privileges of and place of public accommodation." (121) Although equal in treatment, Currier was at a disadvantage of how she had to spend her breaks during the exam, and was therefore at a disadvantage compared to her peers. (122) The Currier case is an example of the Participation in Unequal Benefit provision within the ADA. (123)

The decision in Currier utilized the ADA provision that ensures individuals receive equal advantage, benefit, or privilege. (124) The framework for analyzing ADA claims within places of public accommodation reviews an individual's denial of access comparatively to the consequence from the denial for a disability claim. (125) Individuals with a medical condition are at a greater disadvantage than non-disabled individuals when both are denied access to a restroom because individuals with medical conditions need immediate access while others do not. (126)

VI. Judicial Loopholes: Non-RAA State Court ADA Avoidance

Thirty-three states have not enacted a version of the RAA. (127) Non-RAA states solely rely upon the ADA when determining accessibility of restrooms while the RAA states enforce laws granting access to private restrooms for medically eligible individuals. (128) Restroom access between various states now resembles a circuit split where the public accommodation laws of some states allow individuals with a disability to access private restroom facilities, while others do not consider private restrooms to be places of public accommodation. (129) Thus, individuals with and without disabilities are denied equally. (130) The difference in enforcement has created inconsistencies in application amongst the RAA and non-RAA states in determining the rights of disabled individuals. (131) One major inconsistency between each state's RAA is the lack of clarity when defining the terms regarding who receives access, under which circumstances, and when establishments must comply. (132) The definition of an "eligible medical condition" differs by state, and only Michigan extends the definition to include pregnancy or temporary disabilities. (133) Without an expansive definition of eligibility, protections for individuals who need immediate access to a restroom on a temporary basis would be outliers to the RAA's primary purpose. (134)

The Ninth Circuit includes both states that have passed and have not passed versions of the RAA, and has set the precedent that an employee-only, private restroom is not an area of public accommodation. (135) Precedent set by the Ninth Circuit has determined that equal denial is not discrimination, does not violate the ADA, and thus access to private restrooms is not granted to either disabled or non-disabled individuals. (136) Non-RAA courts refer to the ADA in determining whether access should be afforded to disabled individuals. (137) So long as denial has occurred equally to both disabled and nondisabled individuals, the ADA will not be violated and the courts will not evaluate the claim under the terms of the ADA. (138)

In Louie v. Ideal Cleaners, a disabled customer was denied restroom access at a dry cleaner. (139) The restroom was located in the back of the establishment and was for employee-use only. (140) The Northern District Court of California referred to this dynamic as a "mixed-use facility" where the restroom is not a public accommodation even though the establishment itself is a place of public accommodation. (141) The District Court granted summary judgment for the defendant, Ideal Dry Cleaners, holding that they could deny a customer with a disability access to a restroom when all customers were denied equally. (142) When a restroom is for employees only, it could not also be a place of public accommodation. (143) The court reasoned that the purpose of the ADA was to ensure that all individuals were granted or denied access to accommodations equally, and if individuals with disabilities were denied equally as individuals without disabilities then there was no ADA claim because there was no discrimination based on disability. (144)

VII. The Jurisprudence Crossroads of Protection

The mixture of RAA and non-RAA states has led to inconsistent protections for people with disabilities. (145) These conflicting schemes of protection--certain states enforcing expanded protections while other states restricting such protections--sets the stage for a Fourteenth Amendment Equal Protection Clause violation for people with disabilities. (146) Due to these conflicting protections, it is likely that the Supreme Court will hear a case as to whether non-RAA states violate the Fourteenth Amendment by restricting access to the restroom and not invoking the ADA in such claims. (147) Alternatively, this issue could be remedied through federal legislation. (148) Congress must take action and amend the ADA to be inclusive of the terms and purpose of the RAA to ensure that the protections of the RAA are afforded to people with disabilities in every state. (149) Federal legislation would provide uniform protections based on the RAA and eliminate the Fourteenth Amendment issue. (150) However, if Congress fails to pass such legislation, and the issue reaches the Supreme Court, the Court could redefine people with disabilities as a quasi-suspect class and examine state policies under intermediate scrutiny. (151) If a non-RAA state were to enforce the mixed-use exception to businesses, the scope of protections would be less than those included in the ADA. (152) The basis for an underlying Supreme Court case would rely on a violation of Fourteenth Amendment protections because the Fourteenth Amendment protects individuals from discrimination by states against a class of individuals as well as a violation of the ADA. (153) The courts have interpreted the space in a retail establishment as mixed-use and have not invoked the ADA as applicable law. (154) In doing so, the courts have deprived people with disabilities of legal recourse in a claim of discrimination. (155) Discrimination does not only occur when businesses treat individuals disproportionately in their initial action. (156) Although denial of private restrooms may be applied neutrally to both people with a disability and those without a disability, the class of individuals that are left adversely affected are those with a disability. (157) The courts in non-RAA states have allowed such discriminatory behavior from businesses by barring people with disabilities to bring a claim under the ADA, and in doing so, have violated the Fourteenth Amendment protections guaranteed under the U.S. Constitution through the ADA. (158) The Fourteenth Amendment is limited to state action and although private businesses are "private" in ownership, they are actually open to the public and are instruments of commerce. (159) As an entity engaging in the stream of commerce, businesses should not be exempt from providing civil rights protections to the public. (160) The ADA was created to provide relief for people with disabilities in the face of such discrimination, yet non-RAA states are denying people with disabilities from receiving such redress when courts neglect to utilize the ADA and its purpose. (161)

Once a Supreme Court case arises from Fourteenth Amendment violations and the ADA, people with disabilities should be deemed a quasi-suspect class and the claim would then be reviewed under intermediate scrutiny. (162) The four elements of a suspect class are: (1) the class of individuals have a history of discrimination; (2) the characteristic is immutable; (3) the characteristic is seldom relevant to achieving a state interest; and (4) the class of individuals have been underrepresented in the political process and in a majority political power. (163) People with disabilities should be considered as quasi-suspect because their class meets the immutable characteristic requirement. (164) Although the remaining three elements could be met, disability as a class includes individuals with different disabilities, but not all are immutable and not all are "solely by the accident of birth." (165) Due to the flexibility of meeting the first element, people with disabilities should be considered quasi-suspect. (166) Gender, for example, is protected as quasi-suspect because historically, it also was on the borderline of meeting one of the four elements: political powerlessness. (167) Intermediate scrutiny would require the state to prove its policies are substantially related to an important government interest, which is more stringent than the current rational basis review people with disabilities receive in the court. (168)

By employing the Supreme Court's rationale in Windsor., state laws that grant greater protections for their citizens should set the same standard for federal legislation. (169) Under the Supremacy Clause, the more stringent of the two laws governs, and of the RAA and non-RAA states solely relying on the ADA, the RAA would govern because the RAA grants greater protections to people with disabilities. (170) If the Court were to receive a case on appeal, such as Louie v. Ideal Cleaners, from a non-RAA state and adopts the mixed-use facility analysis, the federal ruling would be in conflict with the seventeen states that enacted more stringent laws through the RAA. (171) Utilizing the RAA as a standard accompanied by intermediate scrutiny would allow people with disabilities to receive the greatest protections from discrimination because the RAA expands ADA protections and intermediate scrutiny would require states to justify their policies based on a higher standard than rational basis. (172) Although every case would need to be evaluated according to its context, the purpose of the Fourteenth Amendment, the ADA, and the RAA should not be disregarded. (173) The RAA is similar to Windsor because it exemplifies an act of federalism to achieve greater civil protections for its citizens. (174) Although the RAA is not likely to be challenged in the same way as DOMA was in Windsor, the Supreme Court may one day need to clarify the terms of the RAA in regard to non-RAA state rulings. (175) In doing so, the Supreme Court may uphold the standards of the RAA because a contrary ruling would restrict protections in seventeen states. (176)

Although underlying Fourteenth Amendment and ADA violations pose the possibility for a Supreme Court case, most civil rights protections have been created through legislation. (177) An act by Congress to amend the ADA to incorporate the RAA would expand protections at the federal level, guarantee those protections under the Fourteenth Amendment, and resolve potential Supreme Court challenges that may arise due to current state laws. (178) The RAA needs to be consolidated from each state's version; Congress would need to amend the ADA to incorporate the RAA language, and then add language emphasizing discrimination not only as it pertains to unequal treatment and unequal benefit. (179)

Language in the RAA must be clarified to provide consistent enforcement and include the broadest protections. (180) Specifically, the RAA must clarify whether a "customer" is someone who has participated in an act of commerce versus any member of the public who is inside the establishment. (181) The RAA should not only be extended to those who have purchased an item from a retail establishment. (182) Retail establishments must be considered places of public accommodation and must not require individuals to participate in a commercial transaction to receive access to the restroom. (183) A prerequisite of a commercial transaction would be counterintuitive to equity by adding further detriment to those protected under the RAA, and would conflict with the statute's purpose since some individuals may not have financial means to participate in the commercial exchange. (184) The Act was implemented to grant access to those with an eligible medical condition, not limit access to only those with an eligible medical condition who also participate in a commercial activity. (185)

The ADA, as amended to incorporate the RAA, must clarify the meaning of not having a public restroom "immediately available." (186) Without this clarification, people with disabilities are at risk of being denied access because a restroom may be available down the street, on the other end of a mall or park, or some other location that would place the individual at a disadvantage. (187) The amendment must clarify what it means for a public restroom to be "not readily accessible." (188) The ADA should adopt the language from Oregon's RAA where "retail establishment" was replaced with "place of public accommodation." (189) By changing the term, the application would be broadened to include all places of public accommodation and not solely retail establishments. (190) The amended ADA must further clarify that all retail establishments: (1) are considered places of public accommodation, (2) are not to be considered mixed-use facilities, and (3) should abide by the terms set forth in the ADA. (191) The separation between retail establishment and place of public accommodation has led courts of non-RAA states to hold that the two terms have different meanings, and that not all areas in a retail establishment are places of public accommodation. (192) This issue must be resolved to have consistent and purposeful application of the statute. (193)

The amended ADA must incorporate pregnancy and temporary disabilities into the protections of the RAA. (194) Although pregnancy is not considered a disability under the ADA, pregnancy should be included as an eligible medical condition for the purpose of restroom access. (195) The RAA covers "conditions" and not solely the narrower umbrella term of "disabilities" under the ADA's major life activities requirement. (196) The RAA is focused on generating immediate restroom availability to those who need urgent access. (197) The RAA is not affixed with the permanency of the condition, but rather the urgency created by the condition. (198) This would not require that all provisions of the ADA include pregnancy as a disability, but the ADA should include pregnancy as part of the RAA amended provisions. (199) In addition to the ADA language, there must be a federal identification access card to be distributed through each state's Department of Health. (200) Most states have allowed either a signed physician's note or identification card to grant restroom access, but the implementation of one card issued by a primary provider will allow for consistent application of the law. (201)

The ADA must emphasize that discrimination does not only concern equal treatment but also involves equal benefit, as shown in Currier. (202) The ADA includes a provision regarding equal benefit, advantage, and privilege, and the Currier court elaborated upon this provision of the ADA to include disadvantage as a result of such denial. (203) In Louie, access was denied equally in non-RAA jurisdictions to both people with and without disabilities, therefore, the denial of access did not invoke the ADA. (204) In the non-RAA courts, instead of further assessing the advantages, benefits, and privileges from the establishment's conduct, the courts terminated their analyses early. (205) If instead, the analyses continued, the courts would have been compelled to apply Currier by analyzing whether the people with disabilities were placed at a disadvantage by the equal denial of access compared to their non-disabled counterparts. (206) The court would have first found that people with disabilities had been disadvantaged, and then ordered recourse to redress the discrimination. (207)

Congress can expand protections for people with disabilities through legislation by amending the ADA to incorporate the RAA. (208) State-level action is utilized to motivate the federal government to expand protections and progress civil rights. (209) Civil rights often advance through legislation as a result of citizens demanding action from their representatives, and in turn, those state-level protections turn into activism on the federal level. (210) The protection of an individual must not be determined by whether they live in one of the seventeen RAA states or whether they live in one of the thirty-three non-RAA states. (211) The Fourteenth Amendment guarantees protections to individuals, and until either Congress acts to amend the ADA or a case is brought to the Supreme Court, individuals will go without their full protections in violation of their Fourteenth Amendment rights and their ADA-granted rights. (212)

VIII. Conclusion

The RAA is a measure of action by individual states' civil rights advancement for people with disabilities. The RAA embodies the language from the ADA and provides broader protections granted through the Equal Protection Clause of the Fourteenth Amendment. While seventeen states have expanded upon the ADA by enacting their own version of the RAA, non-RAA courts have neglected to utilize the ADA. In effect, people with disabilities are having their right restricted when an act of discrimination occurs. The RAA's application is utilized as a state-level federalist instrument for protections in order to motivate the federal government and address the violation of the ADA and Equal Protection Clause. A potential Supreme Court case lingers in the decisions from non-RAA courts, however an act of Congress modifying the language of the ADA to incorporate the RAA could resolve the issue prior granting a writ of certiorari.

Sara Wilson *

* J.D. Candidate, Suffolk University Law School, 2019; B.A., Indiana University--Bloomington, 2015. Ms. Wilson may be contacted at slynnwils@gmail.com.

(1) See Michael Waterstone, Disability Constitutional Law, Am. Constitution Soc'y (July 29, 2015), https://www.acslaw.org/acsblog/disability-constitutional-law. Disability constitutional claims may see victory by challenging state constitutions to bring the issue to the federal level. Id.

(2) See Richard Scotch, From Good Will to Civil Rights: Transforming Federal DISABILITY Policy 6 (Temple Univ. Press 2009). Many people who are disabled have been excluded from full social participation and involvement due to stigmatization of disabilities. Id. at 6-7. Most public policy, in regard to disabilities, is formed out of stereotypes about people with disabilities and ultimately focuses on neediness and dependency. Id.

(3) See Anita Silvers & Michel Ashley Stein, Disability, Equal Protection, and the Supreme Court: Standing at the Crossroads of Progressive and Retrogressive Ijogic in Constitutional Classification, 35 U. MICH. J. L. REFORM 81 (2001). Protected categories under the Equal Protection Clause in regard to disabilities have not been fully granted by the Court, but in many respects, disabilities should receive greater protections under the Fourteenth Amendment. Id.

(4) See William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 HARV. L.

Rev. 489, 504 (1977) (discussing state courts and their role in protecting individual liberties beyond federal protections.)

(5) Id. States may grant its citizens greater rights and in turn motivate the federal level to adopt its more stringent laws. Id. State judicial and legislative acts may progress civil rights protections before the federal government does so. Id. at 7. Power is left to the states through federalism to provide for its citizens, and thus, states are typically the first to act before federal law mandates protections by all states. Id. at 8.

(6) See Americans with Disabilities Act of 1990, 42 U.S.C. [section] 12101 (1990) (describing the ADA as a protector of rights for those with a disability).

(7) See Brennan, supra note 4; infra Part III (describing states' roles in disability rights activism). The Supremacy Clause establishes federal precedent over state law, but retains state autonomy where state law does not conflict with federal law. Infra notes 55-57 and accompanying text.

(8) See Illinois Restroom Access Act, 410 ILL. COMP. STAT. Ann. 39 (West 2005). The Illinois Restroom Access Act is a result of an Illinois resident demanding action from the state by constituents who were denied access to restrooms. Id. The state granted the protections to accommodate its constituent, and in doing so, influenced sixteen other states make the same changes. Id.

(9) Id. The RAA has been adopted by seventeen states and now sets a higher standard for the ADA and protections under the Fourteenth Amendment for people with disabilities. Id.

(10) See infra Part I (describing Fourteenth Amendment's protection from discrimination against members of a protected group).

(11) See discussion infra Parts II, III (explaining ADA's expansion by states' public accommodation statutes).

(12) See discussion infra Parts IV, V (detailing specific provisions of RAA in states that adopted it).

(13) See discussion infra Part VI (summarizing pertinent court opinions on interpreting RAA and ADA).

(14) See discussion infra Part VII (suggesting federal modes of unifying disability restroom protections).

(15) See discussion infra Part VIII.

(16) U.S. CONST, amend. XIV, [section] 1.
   All persons born or naturalized in the United States, and subject
   to the jurisdiction thereof, are citizens of the United States and
   of the State wherein they reside. No State shall make or enforce
   any law which shall abridge the privileges or immunities of
   citizens of the United States; nor shall any State deprive any
   person of life, liberty, or property, without due process of law;
   nor deny to any person within its jurisdiction the equal protection
   of the laws.


Id.; History of Equal Protections and the levels of Review, LAW SHELF EDUC. MEDIA, https://lawshelf.com/courseware/entry/history-of-equal-protection-and-the-levels-ofreview (last visited May 13, 2019) [hereinafter History of Equal Protections] (describing the purpose and history of the Fourteenth Amendment).

(17) US Constitution--5th and 14th Amendments, FIND U.S. L., https://finduslaw.com/us-constitution5th-14th-amendments (last visited May 13, 2019). The Fourteenth Amendment explicitly prohibits states from violating an individual's rights, and the Equal Protection Clause within the Fourteenth Amendment limits the state and federal government's power to discriminate against individuals of specific classes. Id.

(18) History of Equal Protections; supra note 16. The Fifth Amendment had protected individuals from discrimination by the federal government. Id. After slavery was abolished, the Fourteenth Amendment was added to restrict states from implementing discriminatory policies and practices against freed slaves. Id. The implementation of the Fourteenth Amendment held states accountable for their treatment toward individuals and emphasized the purpose of individual rights and protections under the U.S. Constitution. Id.

(19) Id. The Fourteenth Amendment is incorporated through the Fifth, which shows the similarity in principle but difference in each Amendment's application to either the state or federal government. Id.

(20) History of Equal Protections, supra note 16 (describing the protections from discrimination in both the Fifth and Fourteenth Amendments).

(21) See U.S. CONST, amend. XIV, [section] 1; Lenora M. Lapidus, Constitutional Rights: Equal Protection, Am. Civ. Liberties Union 2 (Feb. 9, 2009), https://www.aclu.org/files/pdfs/about/rightsofwomen_chapter1.pdf (describing the purpose of the Equal Protection Clause and the bounds of its authority).

(22) See Lapidus, supra note 21. Occasionally, the Court will rule a private entity as a state actor if the government provides funding to the entity. Id. Through commerce, the Court has a greater ability to extend the governmental sphere into areas of private establishment to grant further protections. Id.; see also Heart of Atlanta Motel v. United States, 379 U.S. 241, 259 (1964). The Supreme Court held that the Commerce Clause gave Congress the ability to force private businesses to abide by Tide VII of the Civil Rights Act of 1964, which prohibits discrimination in public accommodations due to the business's involvement in interstate commerce. Id. The ability for the Supreme Court to determine a private entity to be a state actor is significant because it proves private entities are not fully exempt from abiding by civil rights protections. Id. Businesses that conduct their activity through interstate commerce are deemed state actors. Id.

(23) See United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938) (distinguishing the idea of levels of judicial scrutiny and in result, creating strict scrutiny review). "There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth." Id. Lapidus, supra note 21. Protected classes are determined by the court and receive different levels of protection, although the Fourteenth Amendment prohibits discrimination against any group on the basis of its classification. Id.

(24) Carolene Products Co., 304 U.S. at 154; supra note 16 and accompanying text. Equal protection analysis involves only rationality review for unprotected classes. History of Equal Protections, supra note 16.

(25) See Lapidus, supra note 21. Thus far, race, national origin, and gender are the only three categories that receive higher levels of review under the Fourteenth Amendment. Id. All other classifications are reviewed under a default standard by the court, which makes the state more likely to prevail. Id.

(26) See Kirchberg v. Feenstra, 450 U.S. 455, 460 (1981). "[E]xpress gender-based discrimination .. . [has been] found unconstitutional absent a showing that the classification is tailored to further an important governmental interest." Id. LEGAL INFO. INST., Intermediate Scrutiny, CORNELL L. SCH., https://www.law.cornell.edu/wex/intermediate_scrutiny (last visited May 13, 2019); History of Equal Protections, supra note 16. Gender is quasi-suspect and not fully "suspect" because the class is not "entirely politically powerless, but traditionally lacks substantial political power." LEGAL Info. Inst., supra. In addition to gender, laws that burden children who were born outside of marriage are also subject to intermediate scrutiny. Id.

(27) See Adarand Constructors v. Pena, 515 U.S. 200, 223 (1995) (holding that all policies with national origin and race-based classifications must meet strict scrutiny review). Race and national origin are the only two categories that are considered "suspect classes." Id. A suspect class receives strict scrutiny by the Court and makes it difficult for a state to prevail. Id. A strict scrutiny level of review is the highest level of review under the Fourteenth Amendment's Equal Protection Clause. Id.; see also History of Equal Protections, supra note 16; supra note 16 and accompanying text.

(28) See LEGAL Info. Inst., supra note 26. Gender is quasi-suspect because it does not fully meet the four elements necessary to be considered a suspect class. See supra note 26 and accompanying text.

(29) See Carolene Products Co., 304 U.S. at 153.
   Where the existence of a rational basis for legislation whose
   constitutionality is attacked depends upon facts beyond the sphere
   of judicial notice, such facts may properly be male [sic] the
   subject of judicial inquiry ... and the constitutionality of a
   statute predicated upon the existence of a particular state of
   facts may be challenged by showing to the court that those facts
   have ceased to exist.


Id. See also LEGAL INFO. INST., supra note 26. If a class of individuals cannot meet the elements necessary to be considered a suspect class, the claim brought by such individuals will be reviewed under the default standard of rational basis review, in which the Court will evaluate whether the state's law is rationally related to a legitimate government interest. Id.

(30) See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973). "[T]he traditional indicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." Id. at 28. See also Ian Sullivan, Suspect Classes, LAW CONTEMP, SOC'Y (Jan. 22, 2013, 8:10 PM), http://moglen.law.columbia.edu/twiki/bin/view/LawContempSoc/MarcLegrandFirstPaper.

(31) See e.g., Rodriguez 411 U.S. 1 at 28; SCOTCH, supra note 2, at 6-7 (discussing the history of stigmatization faced by the disability community); Sullivan, supra note 30 (explaining impact of societal norms on judicial analysis of discrimination).

(32) See Frontiero v. Richardson, 411 U.S. 677, 686 (1973). "[BJecause of the high visibility of the sex characteristic, women still face pervasive, although at times more subde, discrimination in our educational institutions, in the job market and, perhaps most conspicuously, in the political arena." Id.
   Moreover, since sex, like race and national origin, is an immutable
   characteristic determined solely by the accident of birth, the
   imposition of special disabilities upon the members of a particular
   sex because of their sex would seem to violate 'the basic concept
   of our system that legal burdens should bear some relationship to
   individual responsibility ...'


Id. (quoting Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175 (1972)); see also Sullivan, supra note 30 (describing the test to form a new suspect class under the Supreme Court).

(33) City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985).

[The] legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy--a view that those in the burdened class are not as worthy or deserving as others. For these reasons and because such discrimination is unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest.

Id. See Sullivan, supra note 30 (describing classification as seldom being relevant to achieving state interests).

(34) See Rodriguez 411 U.S. 1 at 28 (describing political powerless as needing protection from the majority in political power); Sullivan, supra note 30; SCOTCH, supra note 2, at 12. "[Disabled people lack many of the political and economic resources typically associated with political influence." Id. "As a group they have been unable to mobilize large numbers of people in elections or other collective political or economic activities." Id. "To the extent that disabled people do participate in American political and economic life, they typically do so as individuals and often in peripheral positions." Id. at 12-13; see also LEGAL INFO. INST., supra note 26. Gender is quasi-suspect and receives a slightly lenient level of review compared to suspect class categories because gender-based claims could not prove that gender was associated with politic powerlessness. Id.

(35) See Linda Klein, Fourteenth Amendment Should Be Sued to Ensure Equal Protection for Those with Disabilities (Jun. 27, 2017, 8:43 AM), Am. Bar ASS'N, http://www.abajournal.com/news/article/Fourteenth_amendment_should_be_used_to_ensure _equal_protection_for_those_with_dis (comparing the civil rights movement and suspect class for race, but not disability).

(36) See Cleburne laving Ctr., 473 U.S. at 432. Cleburne Living Center sought to open a home for mentally challenged individuals in the City of Cleburne, Texas. Id. The City of Cleburne refused to grant a permit due to a zoning ordinance specifically restricting occupants who were mentally challenged regardless of whether the home was in compliance. Id. The Court held the ordinance was invalid because there was no rational purpose, but additionally noted that individuals with a disability are not a suspect or quasi-suspect class. Id.; Klein, supra note 35 (asserting Fourteenth Amendment as ineffective for people with disabilities since the Cleburne decision).

(37) Cleburne Living Ctr., 473 U.S. at 432. The Court decided people with disabilities were not a suspect class, but only conducted the analysis for individuals who had mental retardation, without considering individuals with other disabilities. Id. The Court evaluated Cleburne under rational basis review and refused to consider individuals with retardation as a suspect class. Id. See Silvers & Stein, supra note 3, at 102. "(T]he Court ruled, mentally retarded people are different from other people, and therefore states have wide latitude to treat them differently." Id. Arlene B. Mayerson & Silvia Lee, The ADA and Models of Equality, DISABILITY RIGHTS EDUC. & Def. FUND, https://dredf.org/news/publications/disability-rights-law-and-policy/the-ada-andmodels-of-equality/ (last visited May 13, 2019). Rational basis review is the lowest level and is a default standard of review for non-suspect class claims. History of Equal Protections, supra note 16.

(38) See Mayerson & Lee, supra note 37. See Cleburne Uving Ctr., 473 U.S. at 432. The Court did not allow people with disabilities to be a suspect class under Cleburne, therefore, states only need to meet a rational basis standard when evaluating implemented policies that may adversely affect people with disabilities. Id.; Klein, supra note 35; see also LEGAL INFO. INST., supra note 26. "So long as the government shows that the classification theoretically advances any government purpose, the challenge [against discrimination] fails." LEGAL INFO. INST., supra note 26.

(39) See Robert C. Farrell, Successful Rational Basis Claims from the 1971 Term Through Romer v. Evans, 32 IND. L. REV. 357, 358 (1999), (describing rational basis test as "a classification be rationally related to legitimate government purposes"); History of Equal Protections, supra note 16. The Supreme Court has instituted three levels of scrutiny to assist in determining the legitimacy of state's policies. Id. The highest and most difficult level of scrutiny is referred to as "strict scrutiny" and requires that a state proves the policy was necessary to fulfill a compelling governmental interest. Id. This level of review is used for race and national origin claims. Id. The second most stringent level is "intermediate," and requires that a state law be substantially related to an important governmental interest. Id. Intermediate scrutiny is used for quasi-suspect class claims such as gender. Id. Rational basis review is the lowest level and is a default standard of review for non-suspect class claims. History of Equal Protections, supra note 16.

(40) Human Res. Research & Mgmt. Grp., Inc. v. Cty. of Suffolk, 687 F. Supp. 2d 237, 256 (E.D.N.Y. 2010). The District Court rejected the use of rational basis review for a claim of intentional discrimination against a person with a disability. Id. Instead of relying on the Fourteenth Amendment for a heightened level of scrutiny, the court looked to the Fair Housing Act ("FHA") for statutory protection. Id. The FHA "specifically makes the handicapped a protected class for the purposes of a statutory claim-even if they are not a protected class for constitutional purposes." Id. (citing Bangerter v. Orem City Corp., 46 F.3d 1491, 1503 (10th Cir. 1995)).

(41) See Americans with Disabilities Act of 1990, 42 U.S.C. [section] 12101 (1990); Timeline of the Americans with Disabilities Act, ADA NAT'L NETWORK, https://adata.org/ada-timeline (last visited May 13, 2019) (displaying timeline of the Fourteenth Amendment and how the ADA expanded protections).

(42) Americans with Disabilities Act Amendments Act of 2008, Pub. L. 110-325, [section] 12101(b), 122 Stat. 3553 (2008).

(1) DISABILITY.--The term 'disability' means, with respect to an individual-(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. ... Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. ... A major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.... An individual meets the requirement of 'being regarded as having such an impairment' if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

Id.

(43) See Americans with Disabilities Act of 1990 [section] 12101.
   The Congress finds that--(1) physical or mental disabilities in no
   way diminish a person's right to fully participate in all aspects
   of society, yet many people with physical or mental disabilities
   have been precluded from doing so because of discrimination; others
   who have a record of a disability or are regarded as having a
   disability also have been subjected to discrimination; (2)
   historically, society has tended to isolate and segregate
   individuals with disabilities, and, despite some improvements, such
   forms of discrimination against individuals with disabilities
   continue to be a serious and pervasive social problem; (3)
   discrimination against individuals with disabilities persists in
   such critical areas as employment, housing, public accommodations,
   education, transportation, communication, recreation,
   institutionalization, health services, voting, and access to public
   services; (4) unlike individuals who have experienced
   discrimination on the basis of race, color, sex, national origin,
   religion, or age, individuals who have experienced discrimination
   on the basis of disability have often had no legal recourse to
   redress such discrimination; (5) individuals with disabilities
   continually encounter various forms of discrimination, including
   outright intentional exclusion, the discriminatory effects of
   architectural, transportation, and communication barriers,
   overprotective rules and policies, failure to make modifications to
   existing facilities and practices, exclusionary qualification
   standards and criteria, segregation, and relegation to lesser
   services, programs, activities, benefits, jobs, or other
   opportunities; (6) census data, national polls, and other studies
   have documented that people with disabilities, as a group, occupy
   an inferior status in our society, and are severely disadvantaged
   socially, vocationally, economically, and educationally; (7) the
   Nation's proper goals regarding individuals with disabilities are
   to assure equality of opportunity, full participation, independent
   living, and economic self-sufficiency for such individuals; and (8)
   the continuing existence of unfair and unnecessary discrimination
   and prejudice denies people with disabilities the opportunity to
   compete on an equal basis and to pursue those opportunities for
   which our free society is justifiably famous, and costs the United
   States billions of dollars in unnecessary expenses resulting from
   dependency and nonproductivity. [...] [I]t is the purpose of this
   chapter--(1) to provide a clear and comprehensive national mandate
   for the elimination of discrimination against individuals with
   disabilities; (2) to provide clear, strong, consistent, enforceable
   standards addressing discrimination against individuals with
   disabilities; (3) to ensure that the Federal Government plays a
   central role in enforcing the standards established in this chapter
   on behalf of individuals with disabilities; and (4) to invoke the
   sweep of congressional authority, including the power to enforce
   the fourteenth amendment and to regulate commerce, in order to
   address the major areas of discrimination faced day-to-day by
   people with disabilities.


Id. Timeline of the Americans with Disabilities Act, supra note 41. The ADA was enacted as an instrument to allow people with disabilities to have a channel of redress when being discriminated against. See Milestones: 1990, EEOC, https://www.eeoc.gov/eeoc/history/ada25th/1990.cfm (last visited May 13, 2019).

(44) Americans with Disabilities Act of 1990 [section] 12101. Congress used its authority to enforce a protection guaranteed by the Fourteenth Amendment, but in doing so, specifically gave protections to people with disabilities that the Court otherwise had neglected to do. Id.

(45) Id. The ADA asserts protection guaranteed through the Fourteenth Amendment but was done so through the powers of the legislative branch. Id.

(46) See The Americans With Disabilities Act Amendments Act of2008, EEOC, [hereinafter AD AAA of 2008], https://www.eeoc.gov/laws/statutes/adaaa_info.cfm (last visited May 13, 2019). The AD AAA was created to cover a broad range of individuals permitted under the terms of the ADA. Id.

(47) See id. The AD AAA is an act that was created to restore the intent and the protections that were given to individuals with disabilities under the ADA of 1990. Id.

(48) Id. The language of AD AAA directly states its purpose to broadly apply the ADA without extensive analysis, so that courts will utilize the ADA to implement its full privileges. Id. The language and purpose of the statute is meant to be interpreted broadly to grant more protections for people with disabilities, whereas, the pre-amended ADA did not contain language to request broad interpretation from courts. Id.

(49) See AD AAA of2008, supra note 46, see also Americans with Disabilities Act Amendments Act of 2008, 42 U.S.C. [section] 12102, sec. 4 (2008).
   Rules of construction regarding the definition of disability. The
   definition of "disability" in paragraph (1) shall be construed in
   accordance with the following: (A) The definition of disability in
   this Act shall be construed in favor of broad coverage of
   individuals under this Act, to the maximum extent permitted by the
   terms of this Act. (B) The term "substantially limits" shall be
   interpreted consistently with the findings and purposes of the ADA
   Amendments Act of 2008. (C) An impairment that substantially limits
   one major life activity need not limit other major life activities
   in order to be considered a disability. (D) An impairment that is
   episodic or in remission is a disability if it would substantially
   limit a major life activity when active. (E) (i) The determination
   of whether an impairment substantially limits a major life activity
   shall be made without regard to the ameliorative effects of
   mitigating measures such as--(I) medication, medical supplies,
   equipment, or appliances, low-vision devices (which do not include
   ordinary eyeglasses or contact lenses), prosthetics including limbs
   and devices, hearing aids and cochlear implants or other
   implantable hearing devices, mobility devices, or oxygen therapy
   equipment and supplies; (II) use of assistive technology; (III)
   reasonable accommodations or auxiliary aids or services; or (IV)
   learned behavioral or adaptive neurological modifications.


[section] 12102, sec. 4.

(50) See [section] 12102, sec 4; JONATHAN R. MOOK, ADA: PUBLIC ACCOMMODATIONS [section] 1.01 (Matthew Bender & Co. 2017). "The Purpose of Tide III of the [ADA] is to bring individuals with disabilities into the economic and social mainstream of American life by establishing a clear and comprehensive national mandate to end discrimination against individuals with disabilities." Id.

(51) U.S. DEP'T OF JUSTICE, Part 36 Non-discrimination on the Basis of Disability in Public Accommodations and Commercial Facilities, AMERICANS WITH DISABILITIES ACT OF 1990 (Jan. 17, 2017), https://www.ada.gov/regs2010/titleIII_2010/titleIII_2010_regulations.htm. The purpose of the public accommodation provision is to require establishments to be "designed, constructed, and altered in compliance" with the standards set out in the ADA. Id. See also SUSAN GLUCK Mezey, Disabling Interpretations: The Americans With Disabilities Act In Federal COURT, 109-40 (University of Pittsburgh Press 2005).

(52) Info. & Tech. Assistance on the Americans with Disabilities Act, Public Accommodations and Commercial Facilities (Title III), U.S. DEP'T OF JUSTICE CIV. RIGHTS DIV., [hereinafter Public Accommodations and Commercial Facilities], https://www.ada.gov/ada_title_III.htm (last visited May 13, 2019).
   Title III prohibits discrimination on the basis of disability in
   the activities of places of public accommodations (businesses that
   are generally open to the public and that fall into one of 12
   categories listed in the ADA, such as restaurants, movie theaters,
   schools, day care facilities, recreation facilities, and doctors'
   offices) and requires newly constructed or altered places of public
   accommodation--as well as commercial facilities (privately owned,
   nonresidential facilities such as factories, warehouses, or office
   buildings)--to comply with the ADA Standards.


Id.

(53) See Americans with Disabilities Act Title III Regulations, 28 C.F.R. [section] 36.104 (1991) (defining a place of public accommodation).

(54) See U.S. CONST, art. VI, cl. 2.
   This Constitution, and the Laws of the United States which shall be
   made in Pursuance thereof; and all Treaties made, or which shall be
   made, under the Authority of the United States, shall be the
   supreme Law of the Land; and the Judges in every State shall be
   bound thereby, any Thing in the Constitution or Laws of any State
   to the Contrary notwithstanding.


Id.

(55) Id. Laws of the United States "shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." Id.

(56) See Brennan, supra note 4, at 491. State courts, legislation, and constitutions have the ability to use federalist measures in expanding the individual rights of its state citizens. Id. The federal level is prompted to adopt civil liberty decisions that are first established on the state level. Id. See also Waterstone, supra note 1; CORNELL L. SCH., LEG. INFO. INST., Preemption, https://www.law.cornell.edu/wex/preemption (last visited May 13, 2019); see generally Christopher R. Drahozal, The Supremacy Clause: A Reference Guide to the United STATES Constitution 76-78 (Jack Stark ed. 2004) (explaining Supremacy Clause's implications for judicial review under U.S. Constitution); MEZEY, supra note 51, at 141-64 (describing state sovereignty expansion, which has caused a substantial division between courts of different jurisdictions).

(57) See William D. Goren, Understanding the Americans with Disabilities Act 99 (3d. ed. 2010). Federal law may conflict with state law via express or implied conflict of preemption. Id. "First, a federal statute might implicitly override a state statute either when the scope of the statute indicates that federal law is intended to occupy the field exclusively or when state law is in actual conflict with federal law." Id. "Second, there is implied conflict preemption, which occurs when either it is impossible for a private party to comply with both state and federal requirements or where state law stands as an obstacle to the accomplishments and execution of the full purposes and objectives of federal law." Id. "There is nothing in the [ADA] even as amended that suggests the ADA is intended to occupy the field exclusively." Id.

(58) See id. (describing the authority of the Americans with Disabilities Act); U.S. CONST., art. VI, cl. 2.

(59) DRAHOZAL, supra note 56; see also Susan L. Gilpin, Disability legislation: State Laws May be Tougher than Federal ADA, MANAGED HEALTHCARE EXEC. (May 2, 2002), http://managedhealthcareexecutive. modernmedicine.com/managed-healthcareexecutive/content/disability-legislation-state- laws-may-be-tougher-federal-ada (describing states that use broader language than federally required); see generally CORNELL L. SCH., LEG. INFO. INST., supra note 56 (explaining process of preemption).

(60) See 29 C.F.R. [section] 1630.1(c) (2011) (Interpretive Guidance on Title I of the Americans With Disabilities Act).

Civil rights statutes are meant to be construed broadly so that they provide expansive protection for individuals who may be discriminated against. Id. This rule of construction directs courts to construe the definition of 'disability' broadly to advance the ADA's remedial purposes and this 'brings treatment of the ADA's definitions of disability in line with treatment of other civil rights laws, which should be construed broadly to effectuate their remedial purposes.'" Id. Cases under the ADA should clarify that the primary objective is ensuring entities have complied with ADA obligations to the public. Id.

(61) See id. States are often the first authority to expand protections for its citizens, then act as persuasive authority to the federal level. Id.

(62) See Brennan, supra note 4. Justice Brennan referred to this type of state level grassroots law as "new state court activism for the structure of American federalism." Id.

(63) See Windsor v. United States, 699 F.3d 169 (2d Cir. 2012). Spyer left her estate to Windsor, who was then barred from claiming the estate tax exemption. Id. at 169. Windsor requested a refund on the $363,053 she paid in estate taxes, which the Internal Revenue Service denied. Id. Windsor then filed suit in district court requesting relief under the Defense of Marriage Act. Id. at 169-70. See Am. CIV. LIBERTIES UNION, Windsor v. United States (last updated Apr. 25, 2014), https://www.aclu.org/cases/lesbian-and-gay-rights/windsor-v-united-states.

(64) See Windsor, 699 F.3d at 169 (describing the federal tax law); Am. CIV. LIBERTIES UNION, supra note 63.

(65) Defense of Marriage Act, Pub.L. 104-199, 110 Stat. 2419 (enacted Sept. 21, 1996); see supra note 64.

(66) See supra note 64 and accompanying text.

(67) See Windsor, 699 F.3d at 169; United States v. Windsor, Oyez, https://www.oyez.org/cases/2012/12-307 (last visited May 13, 2019) (summarizing the Windsor case).

(68) Illinois Restroom Access Act, 410 ILL. COMP. STAT. ANN. 39/10 (West 2005).

(69) Id. See also Simon Owens, The Grassroots Movement to Change the Nation's Public Restroom Imivs, U.S. News & World Rep. (Dec. 20, 2012,2:19 PM), https://www.usnews.com/news / articles/2012/12/20/the-grassroots-movement-to-change-thenations-public-restroom-laws (detailing the history of Ally's Law).

(70) See Owens, supra note 69 (describing the story of Ally Bain and IBD); see also Crohn's Disease, MAYO Clinic, https://www.mayoclinic.org/diseases-conditions/crohns-disease/symptomscauses/syc-20353304 (last visited May 13, 2019). "Crohn's disease is an inflammatory bowel disease (IBD). It causes inflammation of your digestive tract, which can lead to abdominal pain, severe diarrhea, fatigue, weight loss and malnutrition." Id. "The inflammation caused by Crohn's disease often spreads deep into the layers of affected bowel tissue. Crohn's disease can be both painful and debilitating, and sometimes may lead to life-threatening complications." Id. See also What is Crohn's Disease?, CROHN'S & COLITIS FOUND., http://www.crohnscolitisfoundation.org/what-are-crohns-and-colitis/what-is-crohns-disease/ (last visited May 13, 2019). "Crohn's disease may affect as many as 780,000 Americans. Men and Women are equally likely to be affected, and while the disease can occur at any age, Crohn's is more prevalent among adolescents and young adults between the ages of 15 and 35." Id.

(71) See Linda Kriglr, Gut Feelings: Social and Emotional Struggles with Crohn's AND COLITIS 107-08 (Dog Ear Publishing 2015) (describing Ally Bain's situation in coping with Crohn's); Owens, supra note 69.

(72) See Owens, supra note 69; ILL. COMP. STAT. Ann. 39/10.

A retail establishment that has a toilet facility for its employees shall allow a customer to use that facility during normal business hours if the toilet facility is reasonably safe and all of the following are met:

(1) The customer requesting the use of the employee toilet facility suffers from an eligible medical condition or utilizes an ostomy device.

(2) Three or more employees of the retail establishment are working at the time the customer requests use of the employee toilet facility.

(3) The retail establishment does not normally make a restroom available to the public.

(4) The employee toilet facility is not located in an area where providing access would create an obvious security risk to the retail establishment.

(5) A public restroom is not immediately accessible to the customer.

Id.; see also infra note 73 (defining "eligible medical condition").

(73) Illinois Restroom Access Act, 410 ILL. COMP. STAT. Ann. 39/5 (2005). The Restroom Access Act defined "eligible medical condition" as "Crohn's disease, ulcerative colitis, any other inflammatory bowel disease, irritable bowel syndrome, or any other medical condition that requires immediate access to a toilet facility." Id. See THEODORE M. BAYLESS & STEPHEN B. HANAUER, Advanced Therapy in Inflammatory Bowel Disease, Vol. II: IBD and CROHN'S Disease 21 (Linda Mehta 3d ed. 2011). Several provisions are listed in the RAA describing who may seek access and under what conditions access must be granted. Id. Governor Chris Gregoire of Washington state signed legislation allowing access if an individual has an identification card or letter from a doctor or nurse confirming the individual's disease. Id. Each state is responsible for creating the provisions, and therefore, each state's provisions may differ from one another. Id.

(74) See generally Rachel Nall, The Restroom Access Act: A Major Victory for People with Crohn's, HEALTHLINE (Jan. 14, 2016), https://www.healthline.com/health/crohns-disease/restroomlegislation (discussing the different states with RAA and how to report noncompliance); Amber J. Tresca, The Restroom Access Act, VERY WELL HEALTH (updated June 30, 2018), https://www.verywell.com/the-restroom-access-act-1942432.
   There is a vision for a federal version of the act, and several
   other states have similar Restroom Access Act laws in the works. In
   some states, the Restroom Access Act has been opposed vigorously by
   business owners. There is a concern that the Act could be abused,
   that cleaning the facilities will be a burden to employees, or that
   there could be issues of liability. These concerns are largely
   without merit: there have been no issues reported by business
   owners in any of the states where the Restroom Access Act has
   become law.


Id.

(75) See Nall, supra note 74.

(76) See Americans with Disabilities Act of 1990, 42 U.S.C. [section][section] 12181-12189 (1990) (asserting the federal law for equal opportunity and accommodations for individuals with disabilities); see generally Ally Bain, Ally Bain: 10 Years of Fighting for Restroom Access, CROHN'S & COLITIS FOUND., http://www.crohnscolitisfoundation.org/living-with-crohns- colitis/personalstories/allybain.html?referrer=https://www.google.com/ (last visited May 13, 2019) (explaining the RAA is a result of contacting representatives and voicing concerns for medical needs).

(77) COLO. Rev. STAT. [section] 25-41-101 (2008) (Colorado); CONN. GEN. STAT. [section] 19a-106a (2009); DEL. CODE ANN. tit. 16, [section][section] 3001H-3006H (2015) (Delaware); Illinois Restroom Act, 410 ILL. COMP. Stat. Ann. 39 (2005); Ky. Rev. Stat. Ann. [section] 211.395 (2008) (Kentucky); Me. Rev Stat. Ann. tit. 22 [section] 1672-B (2009) (Maine); MASS. Ann. LAWS Ch. 270 [section] 26 (LexisNexis 2012) (Massachusetts); Md. CODE Ann. HEALTH-GEN. [section] 24-209 (LexisNexis 2013) (Maryland); MICH. COMP. LAWS SERV. [section][section] 446.71-76 (LexisNexis 2009) (Michigan); MINN. STAT. [section] 325E.60 (2007); (Minnesota); Crohn's and Colitis Fairness Act, N.Y. PUB. HEALTH [section][section] 1900-1902 (LexisNexis 2017) (repealed 2018) (New York); Or. Rev. STAT. [section][section] 659A.411-659A.413 (2009) (Oregon); Tenn. Code ANN. [section] 68-15-303 (2008) (Tennessee); Tex. HEALTH & SAFETY CODE ANN. [section] 341.069 (West 2007) (Texas); WASH. REV. CODE Ann. [section] 438.1 (LexisNexis 2009) (Washington); WIS. Stat. [section] 146.29 (2009) (Wisconsin).

(78) See New York Crohn's and Colitis Fairness Act, S. B. 3295, 2017-2018 N.Y. State S. (N.Y. 2017); see also Marnie Eisenstadt, Have Bowel Problems? New York Now Requires Businesses to Vet You Use the Bathroom, SYRACUSE.COM, http://www.syracuse.com/state/index.ssf/2017/12/have_bowel_problems_new_york_now_req uires_businesses_to_let_you__use_the_bathroom.html (last updated Dec. 20, 2017).

(79) Americans with Disabilities Act of 1990 42 U.S.C. [section][section] 12101-12213 (1990) (Illinois Restroom Access Act).

(80) See supra note 74. Federal laws enforce requirements equally to all fifty states, and each state reserves the ability to broaden the standards of application. Id. The ADA is enforced as a baseline requirement, and the seventeen states have enacted RAA statutes that broaden the scope of rights afforded to disabled individuals. Id.; Public Accommodations and Commercial Facilities, supra note 52 (explaining the supremacy clause and the right of the state to enforce stricter laws).

(81) See New York Crohn's and Colitis Fairness Act, S. B. 3295, 2017-2018 N.Y. State S. (N.Y. 2017); Rebecca Kaplan, New York Restroom Access--Just Think About It!, Huffington Post (Jun. 12, 2015, 8:30 P.M.), https://www.huffingtonpost.com/rebecca-kaplan/new-york-restroomaccess-_b_7566254.html; Allison Landry, Restroom Access Act Killed by Subcommittee, CAPITAL NEWS Serv. (Jan. 22, 2013); Rachel Zimmerman, I Can't Wait: Restroom Access Victory For Crohn's, Colitis Sufferers, WBUR BOSTON NPR (Aug. 10, 2012, 9:01 A.M.), http://commonhealth.legacy.wbur.org/2012/08/bathroom-access-victory-crohns-colitis; https://capitalnews.vcu.edu/2013/01/22/restroom-access-act-killed-by-subcommittee/.

(82) See supra note 77 and accompanying text; Michelle Corinaldi, et al., Increased Education About Inflammatory Bowel Disease Can Increase Support of Retail Store Managers for Restroom Access, 21 CROHN'S & COLITIS Found. OF America, INC. E5 (Bret A. Lashner et al. eds., 2015); Erik T. Lontok, Inflammatory Bowel Disease: A Giving Smarter Guide, RESEARCH GATE (2017), https://www.researchgate.net/profile/Erik_Lontok/publication/314134056_Inflammatory_Bo wel_Disease_A_Giving_Smarter_Guide/links/58b6caadaca27261e51a067e/InflammatoryBowel-Disease-A-Giving-Smarter-Guide.pdf.

(83) See Americans with Disabilities Act of 1990 [section] 12102.
   An individual with a disability is defined by the ADA as a person
   who has a physical or mental impairment that substantially limits
   one or more major life activities, a person who has a history or
   record of such an impairment, or a person who is perceived by
   others as having such an impairment.


Id. "[A] major life activity ... includes the operation of a major bodily function, including but not limited to, ... digestive, bowel, bladder, ... and reproductive functions." Id. "The definition of disability ... shall be construed in favor of broad coverage of individuals ..., to the maximum extent permitted" under Chapter 126 of the ADA, Equal Opportunity for Individuals with Disabilities. Id.

(84) Americans with Disabilities Act of 2008, 42 U.S.C. [section] 12102 (2018); supra note 77 and accompanying text (listing states that have adopted a version of the RAA).

(85) Sellers v. Deere & Co., 23 F. Supp. 3d 968, 985 (N.D. Iowa 2014) ("The existence of a disability must be determined on a case-by-case manner"); supra note 77.

(86) Illinois Restroom Access Act, 410 ILL. COMP. STAT. Ann. 39/5 (2005); see generally CROHN'S & COLITIS Found., What is Ulcerative Colitis?, http://www.crohnscolitisfoundation.org/what-arecrohns-and-colitis/what-is- ulcerative-colitis/ (last visited May 13, 2019) (defining ulcerative colitis as chronic disease of the large intestine).

(87) MICH. Comp. Laws Serv. [section][section] 446.71 (LexisNexis 2009) (Restroom Access). In Michigan, an eligible medical condition means "Crohn's disease, ulcerative colitis, any other inflammatory bowel disease, irritable bowel syndrome, pregnancy, or any other medical condition that requires immediate access to a toilet facility. Id.

(88) See, e.g., Brennan, supra note 4; Customer Access to Employee Restrooms, WASH. STATE Dep'T OF HEALTH, https://www.doh.wa.gov/portals/1/Documents/Pubs/631008.pdf; BLADDER & Bowel Cmty., FREE Just Can't Wait Toilet Card, https://www.bladderandbowel.org/helpinformation/just-cant-wait-card/ (last visited May 13, 2019); Cards Make It Easier to Eat Out or Use a Public Restroom, OLEY FOUND., http://oley.org/?page=RestBathroomCards (last visited May 13, 2019); Free Patient Resources, GASTROPARESIS PATIENT ASS'N FOR CURES & TREATMENTS, https://www.g-pact.org/patient-resources (last visited May 13, 2019); Get More Information and a Restroom Request Card, CROHN'S & COLITIS, https://www.crohnsandcolitis.com/sign-up (last visited May 13, 2019).

(89) See KRIGER, supra note 71 (describing the need for access to restrooms); Restroom Access, Wash. State Df.p't Health, https://www.doh. wa.gov/ForPublicHealthandHealthcareProviders/HealthcareProfessionsandFa cilities/RestroomAccess (last visited May 16, 2019).

(90) See generally Waterstone, supra note 1 (discussing how state law grants further rights).

(91) See Goren, supra note 57 (describing the states' ability to create stricter laws and broaden federal law); see also Americans with Disabilities Act of 1990, 42 U.S.C. [section] 12102 (1990) (explaining concept of disability under ADA as permitting broad coverage).

(92) See Illinois Restroom Access Act 39. "Invitees or licensees" is not defined in the RAA statute itself but is generally an extension to individuals who are invited to enter a premise or licensed to enter the premises. Id. According to an Illinois case in 1992, an invitee was defined by the court as:
   [O]ne who enters the land by express or implied invitation in order
   to conduct an undertaking either connected with the owner's
   business or connected with an activity the owner permits to be
   conducted on his property. In addition, it was required that there
   be a mutuality of benefit, or a benefit to the landowner, in the
   invitee's presence on the premises.


Lundquist v. Nickels; 238 Ill. App. 3d 410, 422 (1992).

(93) Illinois Restroom Access Act 39 (providing the requirements under the RAA of when an establishment must grant access).

(94) See id.; Americans with Disabilities Act of 1990, 42 U.S.C. ; Owens, supra note 69 (explaining a customer must be lawfully on the premise, but not if purchase is required).

(95) See supra note 94 (describing lack of clarification in RAA regarding who may access the restroom).

(96) Illinois Restroom Access Act 39. The RAA mentions immediately available but does not define "available." Id.

(97) See Illinois Restroom Access Act 39; Owens, supra note 69. Ally Bain was in a shopping mall and she and her mother could not readily determine the availability of a restroom in the shopping area. Id. The issue of whether a restroom was immediately available contributed to Ally Bain's humiliation upon soiling herself in public. Id.

(98) OR. Rev. St AT. [section][section] 659A.411-659A.413 (2009) (describing the change in language from retail establishment to place of public accommodation in Oregon).

(99) Id.; Illinois Restroom Act 39 (describing how application of the RAA is narrowed by using term "retail establishment").

(100) [section][section] 659A.411-659A.413 (describing the provisions of the RAA in Oregon); see generally Nall, supra note 74 (describing implications of Restroom Access Act).

(101) [section][section] 659A.411-659A.413 (explaining how a place of public accommodation is broader term compared to retail establishment).

(102) Id. The idea is that any public place will have the ability to accommodate eligible individuals. Id.

(103) See supra note 77 and accompanying text (listing other states' versions of RAA).

(104) See Owens, supra note 69 and accompanying text (describing the experiences individuals have had with accessibility to restrooms).

(105) See Dan Sharp, Free Restroom Access Cards (June 2, 2016), http://dansharpibd.org/freerestroom-access-cards/; Get More Information and a Restroom Request Card, supra note 88 (informing patients how to register for a Restroom Request Card and providing sign up information); Owens, supra note 69.

(106) See MD. Code Ann. Health-Gen. [section] 24-209 (LexisNexis 2013). Maryland is the only state to focus on the total amount of employees at a given establishment, rather than just the number of employees working at the time of the access request. Id.

(107) See MICH. COMP. Laws Serv. [section][section] 446.71-76 (LexisNexis 2009). Michigan expanded mandatory access to pregnancy and temporary disabilities; pregnancy is not recognized as a disability under the ADA. Id. See also Americans with Disabilities Act of 1990, 42 U.S.C. [section] 12102 (1990).

(108) See CORNELL L. SCH., Leg. Info. Inst., supra note 56; Americans with Disabilities Act of 1990, 42 U.S.C. (explaining how the states are able to expand the application of their disability rights laws).

(109) Id. at [section] 36.302(a). Policies and practices of places of public accommodation should reasonably alter such procedures if to afford disabled individuals with "goods, services, facilities, privileges, advantages, or accommodations," unless the accommodation would substantially alter the services of the establishment. Id.

(110) Currier v. Nat'l Bd. of Med. Exam'rs, 462 Mass. 1, 3-4 (2012). In Currier, a medical student notified the National Board of Medical Examiners ("NMBE") that she would need additional break time to express breast milk. Id. The NMBE denied her request for additional time because it only accommodated disabilities defined under the ADA and neither lactation nor breastfeeding were defined disabilities. Id. The Supreme Judicial Court of Massachusetts found the denial of the accommodations request discriminatory and emphasized that public accommodations grant persons "the right to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation." Id. Currier was denied the advantages of adequate break time because all or nearly all of the break would be consumed to breastfeed--leaving Currier at a disadvantage in her test performance. Id.

(111) Americans with Disabilities Act, 42 U.S.C. [section] 12182 (2008).

(112) [section] 12182 (b)(1)(A)(ii) (describing discrimination in form of participation of an unequal benefit).

(113) [section] 12182(b)(1)(A).

(114) Kevin J. Coco, Beyond the Price Tag: An Economic Analysis of Title III of the Americans with Disabilities Act, 20 KAN. J.L. & PUB. POL'Y 58, 59 (2010). "Tide III of the ADA requires public accommodations and commercial facilities to modify their facilities, policies, goods, and services to reasonably accommodate the needs of individuals with disabilities." Id. In order to prevent discrimination of individuals with disabilities, commercial facilities need to design facilities in a way that is accessible to individuals with disabilities unless they can show that the modification would be structurally impracticable. Id. at 64-65. Structurally impracticable is limited to rare circumstances where unique terrain prevents the ability to incorporate accessible features. Id. at 65. If the facility is to make an alteration, which affects the usability of it, it must ensure, to the extent possible, that the changes made are available to individuals with disabilities. Id.

(115) Currier v. Nat'l Bd. of Med. Exam'rs, 462 Mass. 1, 3-4 (ruling that Currier was entitled to statutory relief under public accommodation rights).

(116) Id. at 7-8 (refusing to give her additional break time during exam to breastfeed four-month-old daughter).

(117) Id. at 8 (responding accommodations given to examinees with disabilities and expressing milk not covered under ADA).

(118) Id. (granting one-hour break time to express breast milk if missed fifteen-minute tutorial for exam). Thus, Currier would still miss out on important information and the NBME put limits on how long she could pump during exam breaks. Id.

(119) Id.; see also Americans with Disabilities Act, 42 U.S.C. [section] 12182 (2008).

(120) Currier, 462 Mass, at 8 (arguing that extra break time was medically required for health of child).

(121) Id. at 17-18 (citing MASS. Gen. LAWS ch. 272, [section] 98 (2016)).

(122) See id. at 19-20.
   Here, women who are expressing breast milk are denied the advantage
   of having a fifteen-minute introductory tutorial as well as
   forty-five minutes of break time to eat, rest, and use the bathroom
   restroom, because all or nearly all of that break time is consumed
   by expressing breast milk. As a result, a subclass, comprised only
   of women, are denied advantages of adequate break time.


Id. at 20.

(123) See Americans with Disabilities Act of 1990, 42 U.S.C. [section] 12182 (1990) (stating that equal benefits should be applied to not reduce the advantages afforded to others).

(124) See id.; see also Currier, 462 Mass, at 21. The Currier court notes that lactation is a "sex-linked distinction" wherein NBME needed to show it could not reasonably accommodate without undue hardship, and it failed to meet its burden. Currier, 462 Mass, at 21.

(125) See Americans with Disabilities Act [section] 12182; see also Currier, 462 Mass, at 19-20.

(126) See Illinois Restroom Access Act, 410 ILL. COMP. STAT. Ann. 39 (West 2005) (extending the ADA with the Illinois RAA); Owens, supra note 69 (demonstrating how an individual with Crohn's disease may need immediate restroom access).

(127) See Brennan, supra note 4 (noting the RAA is enacted in seventeen states). Enacting the RAA is left to the states, and although more states continue to enact a version of the RAA, thirty-three states do not have a version of the RAA. Id.

(128) See Nall, supra note 74. By enacting the RAA, states expand the scope of civil rights for medically eligible individuals. See Americans with Disabilities Act of 1990, 42 U.S.C. The ADA was enacted to eradicate discrimination on the basis of disability but is lacking necessary language to protect such individuals in non-RAA states. See id.; Illinois Restroom Access Act 39. By enforcing stricter laws under the RAA, states hold retail establishments accountable for denying the restroom to a medically eligible individual. See Illinois Restroom Access Act 39.

(129) See id. Between seventeen RAA and thirty-three non-RAA states, there is inconsistency in protections for disabled individuals. Id. See Owens, supra note 69.

(130) Illinois Restroom Access Act 39. The thirty-three states without an RAA have either not addressed or held that the ADA is not invoked because employee-only restrooms are not places of public accommodation. Id. This difference is not only legally inconsistent but leaves the rights and protections of disabled individuals at the will of their geographic location. Id.; supra note 77 (listing each of the seventeen RAA statutes); see generally supra note 68 and accompanying text (explaining how restroom access is a civil rights issue).

(131) Owens, supra note 69. Each state enacts a different version of Ally's law, or the Illinois RAA, and in each version, a condition or requirement differs from the other states' RAAs. Id. These differences include pregnancy and temporary disabilities for medical eligibility, how many employees must be present at the time of access, and whether access is granted in retail establishments of places of public accommodation. Id.

(132) Illinois Restroom Access Act 39.

(133) Mich. Comp. Laws Serv. [section][section] 446.71-76 (LexisNexis 2009).

(134) See generally Owens, supra note 69 (describing increased disease diagnoses leading to broader acceptance of individuals with varying disabilities).

(135) Map of the Ninth Circuit, U.S. COURTS FOR NINTH CIR., https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000135 (last visited May 13, 2019). The Ninth Circuit consists of the District of Alaska, District of Arizona, Central District of California, Eastern District of California, Northern District of California, Southern District of California, District of Hawaii, District of Idaho, District of Montana, District of Nevada, District of Oregon, Eastern District of Washington, and the Western District of Washington, including appellate jurisdiction in the District of Guam and the District of the Northern Mariana Islands. Id. See Ramirez v. Golden Creme Donuts, No. C 12-05656 LB, 2014 U.S. Dist. LEXIS 131303 (N.D. Cal. Sept. 17, 2014). In Ramirey; two disabled customers visited a restaurant and were met with various architectural barriers obstructing their ability to access the establishment's unisex restroom. Id. at *1. The customers later returned and saw a sign posted that stated, "No Public Restrooms." Id. at *5. The Northern District Court of California held that because "the restroom is now for employees only; the restroom is no longer a place of public accommodation and therefore not subject to the ADA." Id. at *4. Additionally, the court noted that a customer "is not denied equal access to a restroom on account of his disability if non-disabled customers in the same position are denied access as well." Id. Although the Ninth Circuit contains both Oregon and Washington in its jurisdiction, the case arising before the court was from a non-RAA enacted state, California. Id.

(136) Ramirez v. Golden Creme Donuts, No. C 12-05656 LB, 2014 U.S. Dist. LEXIS 131303 (N.D. Cal. Sept. 17, 2014).

(137) See id.; Americans with Disabilities Act of 1990, 42 U.S.C. [section] 12182 (1990) (stating public accommodation cannot deny individual with disability the full and equal enjoyment of facilities).

(138) See Ramirez, 2014 U.S. Dist. LEXIS 131303, at *4.

(139) Louie v. Ideal Cleaners, No. C 99-1557 CRB, 1999 U.S. Dist. LEXIS 19811, at *1-2 (N.D. Cal. Dec. 14, 1999). The Northern District Court of California found "the employee-only restroom in the back of the dry cleaners was not a place of public accommodation even though the dry cleaners itself was a place of public accommodation" because it was not "available indiscriminately to other members of the general public." Id. at *10. In a similar case, 7-Eleven denied a paraplegic customer access to the store's employee-only restroom. Doran v. 7-Eleven, 524 F.3d 1034, 1038 (9th Cir. 2008). The Ninth Circuit Court held that denying a customer access to an employee-only restroom is not discriminating on the basis of disability, but rather on the basis of one's lack of employee status. Id. at 1048.

(140) Louie, 1999 U.S. Dist. LEXIS 19811, at *4.

(141) Id.; Matthew A. Stowe, Interpreting 'Place of Public Accommodation' Under Title III of the ADA: A Technical Determination with Potentially Broad Civil Rights Implications, 1 DUKE L.J. 297, 300-03 (2000). Places of public accommodation are limited to physical structures and the accommodation itself is made within those physical entities. Id. The definition of "place of public accommodation" is ambiguous and has led to difficulty in the courts to determine when an accommodation must be made under the ADA. Id. Title III of the ADA is enforced upon "places of public accommodation," therefore, a physical space must first meet the definition held under the regulations of the ADA. Id. If "places of public accommodation" are equivalent to "facilities," it is unclear if all physical space within the facility would be considered a part of the place of public accommodation in regard to the ADA's enforcement. Id.

(142) Louie, 1999 U.S. Dist. LEXIS 19811, at *9-10.

(143) See supra notes 135, 139 and accompanying text (discussing Ninth Circuit opinions on restroom access discrimination claims).

(144) See Louie, 1999 U.S. Dist. LEXIS 19811, at *9-10; Americans with Disabilities Act of 1990, 42 U.S.C. [section][section] 12101-12213 (1990).

(145) See supra note 130 and accompanying text. Seventeen states have enacted legislation that expands rights for people with disabilities while thirty-three states have not enacted similar laws. See supra note 77. Within the non-RAA states, courts utilizing a mixed-use facility analysis for discrimination claims exert limited ADA protections. Id.; see also Louie, 1999 U.S. Dist. LEXIS 19811; supra notes 139-144 and accompanying text (summarizing cases applying mixed-use analysis).

(146) See Louie, 1999 U.S. Dist. LEXIS 19811, at *7-10. The California court reasoned that the ADA was not applicable because the restroom was not generally offered to the public and both people with disabilities and people without disabilities were denied access. Id. The court did not further analyze the ADA because it deemed the dry cleaners to be a mixed-use facility where the business was a place of public accommodation, but the employee restroom was not a place of public accommodation. Id. at *4.

(147) See generally Klein, supra note 35. The ADA was enacted to enforce the Fourteenth Amendment and guarantee protections for people with disabilities. Id. When a court in a non-RAA state neglects to enforce the ADA in a discrimination claim for an individual with a disability, Fourteenth Amendment rights are compromised. Id.; see, e.g., Ramirez v. Golden Creme Donuts, No. C 12-05656 LB, 2014 U.S. Dist. LEXIS 131303 (N.D. Cal. Sept. 17, 2014) (excluding an employee-only restroom from a place of public accommodation under the ADA).

(148) See supra note 5 and accompanying text (explaining that states have the autonomy to expand upon rights that are federally required); see also Gilpin, supra note 59 (describing states that expand civil rights often lead the federal government to implement similar protections).

(149) See generally Americans with Disabilities Act Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008) (describing ADA was amended to create protections for people with disabilities and clarify its application).

(150) See supra note 48 and accompanying text (explaining broad interpretation of the ADA will allow more direct protections for people with disabilities).

(151) See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 451 (1985) (discussing people with disabilities as non-protected classification and receiving rational basis review); see also History of Equal Protections, supra note 16 (describing the level of review for intermediate scrutiny); see generally LEGAL INFO. INST., supra note 26 (describing gender as the only quasi-suspect class analyzed through intermediate scrutiny).

(152) See History of Equal Protections, supra note 16 (explaining equal protection and levels of review); see also Stowe, supra note 141 (describing mixed-use facility analysis); Goren, supra note 57 (discussing state law cannot disrupt federal law's purpose); see also Brennan, supra note 4 (discussing the ability for states to broaden federal law, not narrow federal law).

(153) See generally Klein, supra note 35 (describing ADA as an instrument of the Fourteenth Amendment).

(154) See generally Stowe, supra note 141 (describing a place of public accommodation and the issues that arise from such a narrow definition).

(155) See generally Klein, supra note 35 (explaining the ADA protects rights for people with disabilities and allows recourse when discrimination occurs).

(156) See Currier v. Nat'l Bd. of Med. Exam'rs, 462 Mass. 1 (opining that denial should not be the only action evaluated for discrimination, but also the effect); see contra Louie v. Ideal Cleaners, No. C 99-1557 CRB, 1999 U.S. Dist. LEXIS 19811, at * 3 (N.D. Cal. Dec. 1999) (discussing equal denial means no discrimination occurred); see also Ramirez v. Golden Creme Donuts, No. C 12-05656 LB, 2014 U.S. Dist. LEXIS 131303, at *4 (N.D. Cal. Sept. 17, 2014) (discussing employee-only restrooms as private, thus denial is permitted).

(157) See Currier, 462 Mass. 1. The act should not only apply equally to both individuals with and without disability, but the effect of the action should be evaluated for the disadvantage incurred to the individual with a disability. Id.

(158) See generally Ijouie, 1999 U.S. Dist. LEXIS 19811, at *3. The court granted the business summary judgment business because no basis for a claim of discrimination was found since denial was equal for both individuals with a disability and individuals without a disability. Id.

(159) See generally Heart of Adanta Motel v. United States, 379 U.S. 241, 259 (1964). The Supreme Court determined a private business to be a state actor due to the business's involvement in interstate commerce. Id. The ability to determine a private entity to be a state actor allowed the government to hold a private business accountable for civil rights protections under Title VII of the Civil Rights Act. Id.

(160) Id. (describing how private entities can be considered state actors for the purpose of enforcing civil rights).

(161) See Louie, 1999 U.S. Dist. LEXIS, at *2-3. The district court granted Ideal Cleaners' motion for summary judgment because the court found that Ideal Cleaners did not discriminate against the plaintiff. Id. at *10. By granting summary judgment, the court did not allow the plaintiff with a disability to have a right to redress because the court did not conduct any further analysis on Ideal Cleaners' denial of restroom access. Id. at *8-9.

(162) See generally History of Equal Protections, supra note 16. If a class satisfies a majority of the elements, but does not meet all four of the elements required to find a suspect class, then quasi-suspect classification may be assigned. Id.

(163) Sullivan, supra note 30 (describing the four elements necessary for a suspect classification).

(164) See id. The classification must be based on an immutable characteristic determined solely by the accident of birth. Id. Not all disabilities are immutable nor are they all solely caused by the accident of birth. See generally SCOTCH, supra note 2 (describing both positive results of Americans with Disabilities Act as well as areas where it needs improvement).

(165) See Sullivan, supra note 30 (describing the immutable element as misplaced and potentially unnecessary in determining classification).

(166) See Klein, supra note 35 (analyzing how individuals with disabilities often lack redress for discrimination because not meeting classification).

(167) See generally San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) (describing political powerless as needing protection from the majority in political power); supra note 28 and accompanying text. Gender could not prove its relegation to a place of politic powerlessness because gender encompasses both male and female genders, thus it lacks a group with majority power. Id.

(168) See supra note 162 and accompanying text (describing when a class of people does not meet all four elements it is quasi-suspect).

(169) See generally Windsor v. United States, 699 F.3d 169 (2d Cir. 2012). The federal government cannot limit protections that a state government has granted its citizens. Id. The law which grants greater protections will prevail. Id.; supra note 49 and accompanying text (describing a state's ability to grant greater protections than the federal government requires).

(170) See generally supra note 52 and accompanying text. So long as there is no conflict of the laws, the more stringent law will apply. Id.

(171) See generally Windsor, 699 F.3d 169. Windsor demonstrated an instance of the Court following the more stringent law of a state. Id. The federal government cannot restrict protections a state has given to its citizens so long as the federal government's purposes are not disrupted. Id. Louie v. Ideal Cleaners, No. C 99-1557 CRB, 1999 U.S. Dist. LEXIS 19811, at * 3 (N.D. Cal. Dec. 1999). If Louie had not been granted a summary judgment and challenged the court's holding on appeal, the Supreme Court had the discretion to grant certiorari. Id.; Goren, supra note 57.

(172) See generally, supra note 33 and accompanying text; Brennan, supra note 4 (describing that states enacting higher standards should be examined).

(173) U.S. CONST, amend. XIV, [section] 1 (describing the purpose of the Fourteenth Amendment); Americans with Disabilities Amendments Act of 2008, 42 U.S.C. [section] 12101(b) (2018) (describing the purpose of the ADA); Illinois Restroom Access Act, 410 ILL. COMP. STAT. Ann. 39 (2005) (describing the purpose of the RAA).

(174) See Windsor, 699 F.3d 169; Brennan, supra note 4 (describing activism through state courts, constitutions, and statutes).

(175) See generally Windsor, 699 F.3d 169 (discussing how federal law may conflict with state law); Goren, supra note 57 (explaining preemption occurs when statute's scope indicates federal exclusivity or state conflicts with federal law).

(176) Id.; see generally Windsor, 699 F.3d 169 (discussing federal and state law conflicts).

(177) Brennan, supra note 4 (explaining most civil rights progress has occurred through state action).

(178) her Americans with Disabilities Act of 1990, 42 U.S.C. [section] 12101 (1990) (displaying the clarifications needed to properly execute ADA's purpose).

(179) See Illinois Restroom Access Act 39 (describing the terms and provisions of RAA); Americans with Disabilities Act of 1990 (displaying amendments previously made to ADA for further clarification); Stowe, supra note 141 (discussing the ambiguity that lies with defining a place of public accommodation).

(180) See, e.g., Americans with Disabilities Act of 1990, 42 U.S.C. (displaying the current amended language of the ADA); supra note 70 (displaying the seventeen RAAs enacted).

(181) See Illinois Restroom Access Act 39/5 (defining customer as "individual who is lawfully on the premises of a retail establishment"); Goren, supra note 57.

(182) See OR. REV. STAT. [section][section] 659A.411-659A.413 (2009) (describing Oregon's shift from retail establishment to place of public accommodation for further expansion).

(183) See, e.g., id.; Restroom Access, supra note 89 (explaining the ambiguity of a customer being lawfully on the premises under the RAA); supra notes 90-97 and accompanying text (describing the use of term "place of public accommodation" in place of retail establishment).

(184) See Illinois Restroom Access Act 39/10. The purpose of the RAA was to grant access to private, employee-only restrooms for individuals who have an eligible medical condition. Id.

(185) See generally Stowe, supra note 141, at 300 (describing consequence of denying access because of not properly defining terms in the RAA).

(186) See supra notes 96-97 and accompanying text (asserting the RAA's definition of "immediately available" as ambiguous); Illinois Restroom Access Act 39/10 (displaying the language of the statute in defining "immediately accessible").

(187) See Stowe, supra note 141, at 300 (describing the possibility of denying access to individuals because of not properly defining terms).

(188) See Illinois Restroom Access Act 39/10. A reasonable definition would need to be created for application of the statute, yet still consider the purpose of the statute and the need for access to restrooms. Id.; see also Stowe, supra note 141, at 300.

(189) See supra note 98 and accompanying text (describing the shift from retail establishment to place of public accommodation for further expansion).

(190) See supra notes 98-102 and accompanying text (describing how using "retail establishment" narrows the scope of application of accommodation statute).

(191) See generally Public Accommodations and Commercial Facilities, supra note 52 (defining a place of public accommodation within the ADA); Stowe, supra note 141, at 306-09 (explaining the mixed-use facility analysis by the non-RAA courts).

(192) See Louie v. Ideal Cleaners, No. 99-1557, 1999 U.S. Dist. LEXIS 19811 (N.D. Cal. Dec. 14, 1999) (finding cleaners' employee-only restroom was not place of public accommodation).

(193) See generally Illinois Restroom Access Act 39/10 (defining retail establishment).

(194) MICH. Comp. Laws Serv. [section][section] 446.71-76 (LexisNexis 2009) (describing eligible medical condition as including pregnancy and temporary disabilities).

(195) Americans with Disabilities Act Amendments Act of 2008, 42 U.S.C. [section] 12102(1) (2018) (defining a "disability"); Illinois Restroom Access Act 39/5 (defining an "eligible medical condition").

(196) Americans with Disabilities Act Amendments Act of 2008, 42 U.S.C. 12102(1) (requiring that individual's impairment substantially limits one or more major life activities). A disability must also be considered under the "major life activities" standard in the ADA, but under the RAA, a "condition" does not need to involve a recurrent impairment of a major life activity. Id.; see also Illinois Restroom Access Act 39/5 (including "any other medical condition that requires immediate access to a toilet facility").

(197) See generally Americans with Disabilities Act of 1990, 42 U.S.C. [section] 12101(b) (1990) (describing Act's purposes as including "discrimination faced day-to-day").

(198) See Nall, supra note 74 (describing the purpose of the RAA as granting access to those with an urgent need to use restrooms).

(199) See generally Americans with Disabilities Act Amendment Act of 2008, 42 U.S.C. 12102(1) (displaying the ability to amend for further clarification of the terms); Illinois Restroom Access Act 39 (describing terms that should be added into the ADA).

(200) See, e.g., Customer Access to Employee Restrooms, supra note 88; Get More Information and a Restroom Request Card, supra note 88 (explaining how identification cards may be available online); see generally Restroom Access, supra note 87 (describing the process of issuing identification cards through the Department of Health).

(201) See generally Del. CODE ANN. tit 16, [section][section] 3001H-3006H (2015); Ky. REV. STAT. Ann. [section] 211.395 (2008); Md. Code Ann. Health-Gen. [section] 24-209 (LexisNexis 2013); Or. Rev. Stat. [section][section]659A.411-659A.413 (2009); Tex. Health & Safety Code Ann. [section] 341.069 (West 2007); Wash. Rev. Code Ann. [section] 438.1 (LexisNexis 2009); Wis. Stat. [section] 146.29 (2009). Each state with the RAA requires a physician's note or equivalent, but Delaware, Kentucky, Maryland, Oregon, Texas, Washington, and Wisconsin issue identification cards through a health provider or a nonprofit organization. Id.

(202) See generally Currier v. Nat'l Bd. of Med. Exam'rs, 462 Mass. 1 (2012) (deciding testing center's denial of break time accommodations was a question for the jury).

(203) See Americans with Disabilities Act of 1990, 42 U.S.C. [section] 12182 (b)(1)(A)(ii) (1990). The ADA states that "[i]t shall be discriminatory to afford an individual or class of individuals, on the basis of a disability ... with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals." Id.; see also Currier.; 462 Mass, at 1. The Currier court further elaborated on this point and noted that not only must courts assess the disadvantage in terms of equal denial, but must also analyze whether the individual was disadvantaged because of such denial. Id. at 13.

(204) See generally Louie v. Ideal Cleaners, No. 99-1557, 1999 U.S. Dist. LEXIS 19811, at *10 (N.D. Cal. Dec. 14, 1999) (finding no discrimination where reason for denial was lack of employee status, not disability).

(205) See, e.g., id. at *10 (granting a summary judgment for respondent because no discrimination was found); Ramirez v. Golden Creme Donuts, No. C 12-05656 LB, 2014 U.S. Dist. LEXIS 131303, at *10 (N.D. Cal. Sept. 17, 2014) (granting defendant summary judgment because plaintiff's ADA-based argument was moot); Doran v. 7-Eleven, 524 F.3d 1034, 1049 (9th Cir. 2008) (affirming summary judgment in part on alleged refusal of access to employee-only restroom).

(206) See generally Louie, 1999 U.S. Dist. LEXIS 19811 (granting summary judgment because court found no discrimination); Currier, 462 Mass. 1 (vacating judgments of dismissal and remanding for analysis on plaintiff's unequal denial of benefits claims).

(207) See generally Klein, supra note 35 (describing the purpose of the ADA for recourse to redress).

(208) See generally Brennan, supra note 4 (providing that action by way of legislature is often most impactful).

(209) See generally supra note 56 and accompanying text (describing action in state courts as activism to motivate at the federal level).

(210) See generally notes 55-60 and accompanying text (explaining the role of the state and its ability to expand rights).

(211) See U.S. CONST, amend. XIV (describing the Fourteenth Amendment's purpose as protecting individuals from the state).

(212) See generally Klein, supra note 35 (describing the Fourteenth Amendment and protection of rights).
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Author:Wilson, Sara
Publication:Journal of Health & Biomedical Law
Date:Sep 22, 2019
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