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2nd Circuit: ADA Title III Claim Did Not Require Exhaustion of Remedies

By Maria Greco Danaher  10/26/2007

While most employers are aware that Title I of the Americans with Disabilities Act (ADA) prohibits discrimination against individuals with disabilities, they are less knowledgeable about Title III, which forbids disability discrimination in private places with services for the public, so-called “public accommodations.” Under Title III, an individual with a disability is entitled to the “full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations” in such places, which include restaurants, theaters, grocery stores, banks and private schools. (Public schools are covered by Title II, which applies to state and local governments.)

An individual claiming a violation of Title I must file a charge of employment discrimination with the Equal Employment Opportunity Commission (EEOC) within 180 days of the discriminatory act (or 300 days, when the EEOC has a work-sharing agreement with a state or local fair-employment practices agency). But the 2nd U.S. Circuit Court of Appeals recently vacated a district court decision to dismiss a Title III claim based on an individual’s failure to exhaust administrative remedies.

Joseph McInerney was a Ph.D. candidate in the Mechanical Aeronautical Nuclear Engineering Program at Rensselaer Polytechnic Institute (RPI) in Troy, N.Y. McInerney, who suffers from brain damage and related symptoms as a result of a bacterial brain abscess, alleged that certain RPI professors and administrators failed to accommodate his disability and then retaliated against him when he complained about his treatment. He specifically alleged that he was denied certain accommodations as a research assistant for his thesis advisor, and that the advisor retaliated against him by denying both a letter of recommendation and approval of a scholarship application.

In response to McInerney’s ADA claims, the lower court dismissed the complaint in its entirety for failure to exhaust claims with the EEOC or a state agency. On appeal, the 2nd Circuit reversed, finding that the claims related to RPI—“doubtless a place of public accommodation”—did not require administrative exhaustion. The court stated that it would make “little sense to require a plaintiff challenging discrimination in public accommodations to file a charge with the EEOC, an agency with responsibility for and expertise in matters of employment discrimination.”

It is interesting that the court dismissed out of hand RPI’s argument that McInerney’s allegations related to his work as a research assistant at RPI arose under the ADA’s Title I. In response, the court simply stated that the complaint “contains ample Title III-based allegations” and, therefore, should not have been dismissed. With that language, the court specifically left open the question of whether McInerney’s work as a research assistant qualified as “employment” for purposes of the ADA.

McInerney v. Rensselaer Polytechnic Institute , 2nd Cir., No. 06-1746-cv (Oct. 15, 2007)

Professional Pointer: Employers should understand the basic difference between employment-based ADA claims and those brought under the issue of “public accommodation.” However, institutions of public accommodation should be cognizant of the unresolved “employment” issue in this case that, in some circumstances, might allow individuals whose claims are a hybrid of Title I and Title III to bypass the administrative exhaustion requirement and proceed straight to court on an ADA claim.

Maria Greco Danaher is an attorney with the firm of Dickie, McCamey & Chilcote in Pittsburgh.

Editor’s Note: This article should not be construed as legal advice.

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