DISPARATE IMPACT CLAIMS AND THE AMERICANS WITH DISABILITIES ACT AND REHABILITATION ACT OF 1973
Disparate Impact Claims and the Americans with Disabilities Act and Rehabilitation Act of 1973
Billy Devericks[I]
Introduction
In 2018, a class action complaint was filed against a group of defendants which included CVS Health Corporation, CVS Pharmacy, Inc., and other pharmaceutical companies.[2] These companies administered health plans where CVS Caremark withheld authority over pharmacy benefits and required enrollees to receive HIV/AIDS medications from specifically assigned pharmacies.[3] If the enrollees did not receive their medications from these pharmacies, they had to pay more (either with “no insurance benefits” at full price or more out-of-pocket expenses).[4] Since these medications were required by the enrollees in order to live, the plaintiffs alleged that they were harmed by being forced to spend substantially more money to obtain their medications.[5]
The defendants in this action provided financial incentives to employer sponsors of CVS Caremark to utilize the program in their employment practices and provided no ability for enrollees to opt-out.[6] Prior to implementation of the program by employers, enrollees were able to obtain their medications from other non-CVS pharmacies with full insurance coverage.[7] The plaintiffs in this action had developed critical relationships with their pharmacists where they provided “essential counseling to help Plaintiffs and their families navigate the challenges of living with a chronic condition.”[8] All of the previously discussed procedures within the Program have resulted in negative impacts upon the ability of people with HIV/AIDS to obtain the necessary medications/treatments.[9] The enrollees were required by Caremark to receive their medications from a pharmacy whose practice is to mail the medications either to enrollees directly, or to make available for pick-up by the enrollees.[10] Due to delivery issues, there were multiple instances where enrollees had to wait days for delivery and missed appointments with their doctors, as well as work, as a result.[11] Even if enrollees chose to pick-up medications at a CVS pharmacy, these pharmacies were oftentimes many miles away, with pharmacies occasionally filling incorrect prescriptions, as well as staff shouting names of their medications in the presence of other customers.[12] The plaintiffs in this action were essentially given a choice between facing issues such as those previously described, or to pay large amounts of money for their medications at non-CVS pharmacies.[13]
The plaintiffs in Doe One v. CVS Pharmacy, Inc. alleged that this program implemented by CVS discriminated against them in violation of the Affordable Care Act (“ACA”), Americans with Disabilities Act (“ADA”) and, in turn, Section 504 of the Rehabilitation Act of 1973.[14] The Supreme Court of the United States has yet to determine whether disparate impact claims are recognized under the Americans with Disabilities Act or Section 504 of the Rehabilitation Act, therefore, the California Northern District Court relied upon the Court for the Western District Tennessee’s reasoning in Doe v. BlueCross BlueShield of Tennessee Inc. in holding that a disparate impact claim was not cognizable and the plaintiffs’ ACA claim was dismissed after applying a meaningful access standard.[15] This decision was appealed to the Ninth Circuit Court of Appeals where the Court affirmed the decision of the lower court to use a meaningful access standard, but stated that disparate impact claims were not precluded simply based upon a lack of meaningful access.[16] The Supreme Court of the United States granted the writ of certiorari, but the petition was dismissed following a stipulation by all parties that the writ of certiorari be dismissed.[17]
Given that the petition for writ of certiorari was dismissed in Doe v. CVS Pharmacy, Inc.,[18] the Supreme Court has yet to make a decision regarding whether disparate impact claims brought under the Americans with Disabilities Act or Section 504 of the Rehabilitation Act are cognizable. Based on the Congressional history, policy implications and progression in recognition of disparate impact claims under the ADA and Rehabilitations Act across circuits, disparate impact claims should be cognizable under both Acts.
Part I of this note will define disparate impact and provide a general understanding of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. Part II will provide a comparative analysis of the split between the Sixth, Ninth and Third Circuits regarding disparate impact claims under the Acts. Part III of this note will provide support for the argument that the Supreme Court of the United States should hold that disparate impact claims are cognizable under both the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.
Part I. Understanding the ADA and Rehabilitation Act
A. Rehabilitation Act of 1973
The Rehabilitation Act of 1973 was passed by Congress in 1973 to require those who are governed by the statute to make accommodations for disabled Americans to obtain services.[19] Section 504 of this Act was designed with a pattern nearly identical to discrimination provisions of Title VI of the Civil Rights Act of 1964.[20] The aim was to provide disabled individuals opportunities to pursue certain things such as employment or education free of any discrimination against them.[21] The Rehabilitation Act states that
No otherwise qualified individual with a disability in the United States…shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving [f]ederal financial assistance or under any program or activity conducted by any Executive [A]gency…[22]
Congress had specifically stated that the purpose of Section 504 of the Rehabilitation Act was to ensure that discrimination against those with disabilities would be prevented “regardless of their need for, or ability to benefit from, vocational rehabilitation services, in relation to . . . any other [f]ederally-aided programs.”[23] An issue here is that the statute specifically only related to discrimination under programs or activities receiving “[f]ederal financial assistance”[24] and limited the application of the Act’s protections against discrimination based upon disability.[25]
B. Americans with Disabilities Act
The Americans with Disabilities Act (“ADA”) was designed by Congress to address the issue of protection limitations presented by Section 504 of the Rehabilitation Act listed above.[26] The ADA met this goal by extending the rights under the Rehabilitation Act to the private sector as well, with a focus on employment.[27] The ADA states that “[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”[28] These protections against discrimination also apply to denial of “the benefits of the services, programs, or activities of a public entity”[29] and also apply to “any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”[30] The ADA provides a long list of private entities which constitute public accommodations assuming that said entity will affect commerce.[31] For example, pharmacies are explicitly stated to be a public accommodation.[32]
In order to understand how Courts have addressed disparate impact issues under the ADA, it is important to understand how and why Section 504 of the Rehabilitation Act of 1973 is consistently brought up in most attempts at bringing disparate impact claims. Given that the ADA was created to extend the rights provided to disabled individuals under the Rehabilitation Act,[33] the two acts logically go hand-in-hand in many cases.[34] Since both of the Acts have “served as twin pillars of federal disability discrimination law,”[35] they have been “constant companions in our case law as it has developed to effect those rights.”[36] Before addressing the split amongst the Circuits, there must be a complete understanding of what disparate impact claims are.
C. Disparate Impact Claims
There are two major concepts that arise when dealing with discrimination against protected classes: disparate treatment and disparate impact.[37] Where an action that is alleged to be discriminatory is alleged to be intentionally discriminatory, one must analyze the effects of the disparate treatment.[38] Discriminations of this type are the most common.[39] A good example of disparate treatment can be found in International Brotherhood of Teamsters v. United States.[40] In this case, the plaintiffs brought suit against a union and employer alleging discriminatory employment practices in violation of Title VII of the Civil Rights Act of 1964.[41] The employer was purposefully treating minority employees in a discriminatory manner by refusing to hire minorities as a practice, constituting disparate treatment.[42]
Disparate impact, in contrast, is a type of discrimination in which the discriminatory action/rule is, on its face, neutral or fair in its form, but results in a discriminatory consequence which impacts a protected class.[43] A case which illustrates this concept is Griggs v. Duke Power Co.[44] In this case, a company implemented a policy which required at least a high school education for initial department assignments or any transfers and required passing scores on two aptitude tests, which did not measure any abilities to perform jobs.[45] Due to a tendency for Caucasian employees to meet these requirements at a higher, disproportionate rate to minority group members, the Court held that the consequence was “directly traceable to race.”[46] Due to this disparate impact, the actions taken by the company were in violations of the Civil Rights Act.[47] Given how great the consequences of disregarding discriminatory consequences of facially neutral governmental actions may be, there is a great demand for disparate impact claims to be cognizable. This demand is rooted in justice and equality for all people, to prevent unchecked discrimination, especially under the Americans with Disabilities Act and the Rehabilitation Act.
Part II. Comparative Analysis
A. Background Case Law
There are two United States Supreme Court cases that are often cited when addressing disparate impact claims: Alexander v. Choate[48] and Alexander v. Sandoval.[49] In Choate, Tennessee suggested imposing a reduction in the number of days of inpatient care in hospitals that would be covered by Tennessee’s Medicaid program in an attempt to ease the burden on the state of Medicaid costs.[50] The plaintiffs brought suit alleging that the change would result in discrimination of handicapped persons as statistics demonstrated that a disproportionate number of handicapped persons would be negatively impacted by the change in violation of Section 504 of the Rehabilitation Act.[51] The Sixth Circuit Court of Appeals stated that the presentation of the statistics showing a disproportionate impact constituted a prima facie case.[52] The Supreme Court stated discrimination against the disabled was “most often the product, not of invidious animus, but rather of thoughtlessness and indifference — of benign neglect.”[53] The Supreme Court further stated “the plight of the handicapped… [is] that discrimination against the handicapped is primarily the result of apathetic attitudes rather than affirmative animus.”[54] The Court in Choate went on to discuss how Congress intended to alter conduct that would be extremely difficult or impossible to reach if the Rehabilitation Act was limited “only to conduct fueled by discriminatory intent.”[55]
Despite the focus on fulfilling the purpose of the Rehabilitation Act by preventing discrimination that is not facially or intentionally discriminatory, the Court held that a prima facie violation of the Rehabilitation Act was not established.[56] In what appears to be an attempt to delay the decision to recognize disparate impact claims as constituting prima facie violations, the Court stated that “we assume without deciding that § 504 reaches at least some conduct that has an unjustifiable disparate impact upon the handicapped.”[57] The reversal was grounded in the reasoning of balancing the financial burden on the state to the impact upon handicapped users.[58] The Court stated that the costs would be more than minimal and to require a decision to be the least disadvantageous to disabled individuals would create an unworkable requirement on the state.[59] The Court, seemingly without justification, equates the administrative burden of preventing disparate impacts to the administrative burden imposed upon entities by the National Environmental Policy Act, and even toys with the idea of a “Handicapped Impact Statement” as an assumption of the burden without provocation by the plaintiffs.[60]
Following the decision not to decide upon the issue of recognition of disparate impact claims, the Court applies a meaningful access standard, which states that a “benefit… cannot be defined in a way that effectively denies otherwise qualified handicapped individuals meaningful access to which they are entitled; to assure meaningful access, reasonable accommodations in the grantee’s program or benefits may have to be made.”[61] This standard allowed for the Court to reason that because there is still access to Medicaid services for 14 days (compared to the previous 20 day limitation), handicapped users will still receive a benefit, regardless of the impact of the change in Medicaid service.[62] This arguably disregards the Court’s previous statement in the opinion that the purpose of the Act would be disregarded if the Act could not “rectify the harms resulting from action that discriminated by effect as well as by design.”[63]
A little over sixteen years later, Choate was cited multiple times when addressing private rights to action in regard to disparate impact claims under Title VI of the Civil Rights Act of 1964.[64] In Alexander v. Sandoval, the Alabama Department of Public Safety received grants from the U.S. Department of Transportation and U.S. Department of Justice which in turn, subjected the Department of Public Safety to Title VI of the Civil Rights Act, which prohibited discrimination on the grounds of race.[65] Alabama, through an amendment to its Constitution, declared English as the state’s official language.[66] Following this amendment, the Department of Public Safety only administered examinations for driver’s licenses in English.[67] The Court held that a private right of action exists to sue for violations of § 601 of the Civil Rights Act, but that § 601 only prohibits intentional discrimination.[68] The Court addresses the possibility, however, that disparate impact claims may be permissible under § 602 even though activities which are unintentionally discriminatory under § 601 are valid.[69] The issue was ultimately avoided since the petitioners in Sandoval did not challenge such regulations and the Court assumed that the regulations challenged will hold no disparate impact issues.[70] Again, while the issue in Sandoval revolved around the Civil Rights Act, Section 504 of the Rehabilitation Act was modeled after the Civil Rights Act, and the Americans with Disabilities Act was intended to expand the scope of the Rehabilitation Act.[71]
i. Sixth Circuit
In Doe v. BlueCross BlueShield of Tennessee, Inc., John Doe (plaintiff) was an enrollee of a BlueCross BlueShield health care plan which required Doe to obtain his medicine for HIV via mail or a specialty pharmacy.[72] Medications under this plan which had the mail or specialty pharmacy requirements were usually very expensive medicines for serious diseases.[73] After implementation of the plan’s requirements, Doe would be required to pay “thousands of dollars per batch” if he did not go to a specialty pharmacy.[74] This situation bothered Doe because he had grown accustom to talking to his regular pharmacists who were aware of his specific needs and medical history.[75] Doe was also highly concerned about his privacy.[76] Doe then sued BlueCross BlueShield in violation of the ADA and the Affordable Care Act (ACA).[77]
The Americans with Disabilities Act claim did not survive because the Court held that BlueCross BlueShield is an insurance company, and not a pharmacy, and therefore they were not an entity to be considered a public accommodation under the ADA.[78] However, the disparate impact claim did not stop there. The Rehabilitation Act applies to claims under the Affordable Care Act because it is a federally financed health program.[79] The Sixth Circuit cited Sandoval and stated the Title VII of the Civil Rights Act allows for actions which may have a discriminatory disparate impact.[80] The Court relies upon the language of a single act, the Age Discrimination in Employment Act of 1967, to hold that disparate impact discrimination is valid under the Rehabilitation Act.[81] More specifically, because the Rehabilitation Act does not specifically prohibit activities/actions that “otherwise adversely affects” disabled individuals, there can be no disparate impact claim and cites, among other cases, Griggs v. Duke Power Co. and Sandoval to lend support.[82]
The Court’s reasoning for its decision lies in administrative and financial burdens that will be imposed as a result of deeming disparate impact claims cognizable under the ADA and Rehabilitation Act.[83] It is reasoned that many policies which are facially neutral have negative impacts on those with disabilities, but because an “unwieldy administrative and adjudicative burden” would be imposed, the claims should not be recognized.[84] The Court goes on to reason that because the Supreme Court in Choate made an assumption, rather than a decision, the Sixth Circuit was free to decide however it wanted in the case at hand.[85]
ii. Third Circuit
While Helen L. v. DiDario does not explicitly discuss disparate impact, its analysis of Section 504 of the Rehabilitation Act and Americans with Disabilities Act served as grounds for the decision in a later case involving disparate impact claims under the ADA.[86] The plaintiff in DiDario suffered from meningitis which resulted in her being partially paralyzed years.[87] The Department of Public Welfare, through Medicaid, provides an attendant care program which provides for basic needs of disabled individuals in the home of the individual rather than in a nursing home.[88] The plaintiff, although eligible for attendant care, was placed in a nursing home because she was on a waitlist, which was much more expensive for the Commonwealth.[89] The plaintiff, due to her lack of contact with persons other than the staff and her two children who visit the home, alleged that she was discriminated against in violation of Title II of the ADA.[90]
The Court then went on to delve deep into the Congressional intent of both Section 504 of the Rehabilitation Act and the Americans with Disabilities Act.[91] The Court highlighted the purpose of responding to societal neglect of handicapped individuals in which Section 504 of the Rehabilitation Act intended to serve by rectifying oversights of such neglect.[92] The ADA was created to address the shortcomings of Section 504 of the Rehabilitation Act.[93] The Third Circuit stated that “Congress did not intend to condition the protection of the ADA upon a finding of ‘discrimination.’”[94] The Court further explained it is not possible that Congress intended to limit the protections of the ADA only to situations with intentional discrimination.[95]
This decision stood as the grounds for the Pennsylvania Eastern District Court to hold that disparate impact claims under Title II of the ADA are cognizable.[96] In Doe v. Perkiomen Valley School District, a group of children with disabilities, along with their parents, brought a class action against the Perkiomen Valley School District due to the Board’s decision to make wearing a mask during the COVID-19 pandemic in the schools optional.[97] Before the district made this decision, they developed a health plan for schools to return to in-person courses.[98] The argument by the plaintiffs was that the change in the rule discriminated against disabled children because it excluded them from a public institution, or denied them from participation in school district services.[99] This denial is rooted in the argument that optional masking increases COVID-19 transmission rates, and in turn, increase the likelihood that disabled children would become infected.[100] The children and parents alleged that this discrimination was in violation of the ADA and Section 504 of the Rehabilitation Act.[101]
In bringing their claim, the plaintiffs focused on a disparate impact argument.[102] The Pennsylvania Eastern District Court recognized the plaintiff’s disparate impact claim.[103] The Court reasoned that the Supreme Court in Choate opened the door to recognizing disparate impact claims as prima facie evidence by referencing to the need to fulfill the purpose of the Rehabilitation Act by doing so.[104] Then, the Third Circuit led the way towards such a finding in DiDario, which allowed for the decision to be made in Perkiomen Valley School District.[105]
iii. Ninth Circuit
The Ninth Circuit addressed a case involving the Los Angeles Community College District (“LACCD”), which operates community colleges in California, and two blind students, Roy Payan and Portia Mason, who were enrolled in class in the LACCD.[106] Mason and Payan were granted accommodations.[107] Although the students were given accommodations, they faced accessibility issues at LACCD, which they categorized as inaccessibility to in-class materials, educational technology, research databases, computer applications and websites, and textbooks.[108] The students filed suit alleging that these failures to accommodate for students with disabilities by LACCD was in violation of “Section 504 of the Rehabilitation Act and Title II of the [Americans with Disabilities Act].”[109]
The Ninth Circuit first found that a “private right of action” existed, which would allow for the Plaintiffs to bring the suit and for the court to enforce the Title II Americans with Disabilities Act and Section 504.[110] Then, the Payan court concluded that disparate impact claims are cognizable under Section 504 and the Americans with Disabilities Act.[111] The Ninth Circuit based its decision that disparate impact claims are cognizable upon two cases: Alexander v. Choate[112] and Crowder v. Kitagawa.[113],[114] The court in Payan recited the popular line in Choate which stated that Section 504 can govern conduct which has a disparate impact on disabled individuals.[115] In Crowder, the Ninth Circuit held that disparate impact claims are cognizable under the Americans with Disabilities Act when a state’s practices discriminate against disabled persons.[116]
Part III. Disparate Impact Claims Should be Cognizable
A. Legislative History
The legislative history of Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act provide strong support for the Third and Ninth Circuit’s approach.
For decades, the Rehabilitation Act and its progeny, the Americans with Disabilities Act, have served as twin pillars of federal disability discrimination law. Both statutes secure the rights of individuals with disabilities to independence and full inclusion in American society and, unsurprisingly, have been constant companions in our case law as it has developed to effect those rights.[117]
After all, Section 504 is known as “the cornerstone of the civil rights movement of the mobility-impaired.”[118]
The Congressional intent to prohibit discrimination in the Rehabilitation Act would “ring hollow if the resulting legislation could not rectify the harms resulting from action that discriminated by effect as well as design.”[119] It is clear that this intent calls for protections of disabled individuals where the discriminatory impact is both intentional, or unintentional, as in disparate impact claims. The crucial thrust of the Rehabilitation Act is to “eliminate the creaming and shift the focus to harder cases in order to serve individuals” with disabilities.[120] Further, the Rehabilitation Act was intended to provide additional services for disabled individuals, and to provide them with more attention “to focus . . . on making employment and participation in society more accessible.”[121]
When the Rehabilitation Act was drafted, there were certain expectations in mind whenever it came to how disabled individuals should benefit from it. One of which was to serve individuals with disabilities through the provision of a reasonable expectation that said disabled individuals could benefit from the fruit of the act and that they would be “fit to engage” in societal and employment activities.[122] Senator Cranston, being an original sponsor of the legislation, was a staunch advocate for change to support Americans suffering from disabilities.[123] Cranston argued that “[f]or those millions of handicapped individuals who pay taxes and have the right to expect that their tax will go toward making their environment more accessible” and that these individuals had a right for their lives to be easier.[124] Cranston emphasized it is the right of disabled individuals to have “employment which complements their abilities represent overdue avenues of restitution for previous societal neglect.”[125] Senator Humphrey, known for his previous attempts to pass legislation to protect disabled individuals, famously said, “the time has come to firmly establish the right of disabled Americans to dignity and self-respect as equal and contributing members of society and to end the virtual isolation[.]”[126]
The legislative intent that brought the Americans with Disabilities Act to light supports the proposition that there is no Congressional intent to strictly limit claims against parties in violation of either Act to situations where discriminatory intent exists. One of the fundamental conclusions reached by Congress was that current laws prior to the enactment of the Americans with Disabilities Act were inadequate to confront and address discrimination against disabled people.[127] Given that the Rehabilitation Act was already enacted by this time, it is evident that Congress intended for the protections provided by the ADA would be intended to govern all issues involved discrimination regardless of intent. Additionally, the report from the Committee reached the fundamental conclusion that “discrimination denies people with disabilities the opportunity to compete on an equal basis and costs the United States…and the private sector billions of dollars in unnecessary expenses” as a result.[128]
Most importantly, the report states that discrimination that discriminates “by effect as well as by intent or design” is the discrimination in which the ADA intends to address.[129] “Discrimination also includes harms resulting from . . . the adoption or application of standards and criteria and practices and procedures based on thoughtlessness or indifference––of benign neglect.”[130] These statements make it clear that there is no doubt that the ADA was passed with the intentions of preventing discrimination implemented by any manner. The report goes as far to recognize the issues of enforcement of the Rehabilitation Act in that the disparate impact claims were difficult to bring based upon the language of the statute.[131] “The Committee recognizes that . . . this legislation differs from section 504 by virtue of the fact that the phrase ‘solely by reason of his or her handicap’ has been deleted.”[132] Congress learned from its previous mistakes and stated the reliance on the language of Section 504 led to absurd results in attempts to enforce the protections of the Rehabilitation Act.[133] By adopting differing language, Congress intended to reject such absurd results.[134] This Congressional intent has been recognized as a key component in repairing any damages done by the lack of enforcement of provisions protecting disabled classes in previous years.[135]
The combined intent of Congress in passing both the Rehabilitation Act of 1973 and the ADA presents strong opposition to the holding of the Sixth Circuit in Doe v. BlueCross BlueShield of Tenn., Inc.[136] The Supreme Court in Sandoval reasoned that it was beyond dispute that Title VI of the Civil Rights Act “prohibits only intentional discrimination.”[137] The Supreme Court, however, did not rely on the statutory text of the Civil Rights Act but instead relied upon two Supreme Court cases to form their decision.[138] The Ninth Circuit pointed out this flaw. The Payan court stated that “[b]ecause this limitation is not based on the statutory text of the Civil Rights Act, the similar statutory language in Section 504 and the ADA does not create an analogous limitation on disparate impact disability discrimination claims.”[139] The Ninth Circuit went on: “Sandoval, therefore, does not upset the historical understanding that Section 504 and the ADA were specifically intended to address both intentional discrimination and discrimination caused by ‘thoughtless indifference’ or ‘benign neglect.’”[140]
Conclusion
Congressional intent has played a significant role in determining whether disparate impact claims in civil rights cases are cognizable. The United States Supreme Court in Griggs relied heavily Congressional intent in making its landmark decision to ensure that the civil rights of citizens were protected.[141] The Supreme Court, when presented with the issue again of whether disparate impact claims are cognizable under Section 504 of the Rehabilitation Act of 1973 and the ADA, should follow the reasoning of the Third and Ninth Circuits. In particular, the Supreme Court should give significant weight to the legislative history of both the Rehabilitation Act and the ADA and hold, in accordance with the intent of Congress, that disparate impact claims are cognizable under both Acts.
[I] J.D. 2024, University of Kentucky J. David Rosenberg College of Law; BA Political Science & History 2021, University of Kentucky.
[2] First Amended Class Action Complaint at 1, Doe One v. CVS Pharmacy, Inc., 348 F. Supp. 3d 967 (N.D. Cal. 2018) (No. 3:18-cv-01031-EMC) 2018 U.S. Dist. Ct. Pleadings LEXIS 20162 at *1.
[3] Id.
[4] Id. at 1–2.
[5] Id. at 2–3.
[6] Id. at 2.
[7] Doe One v. CVS Pharmacy, Inc., 348 F. Supp. 3d 967, 978 (N.D. Cal. 2018).
[8] Id.
[9] Id.
[10] Id. at 977.
[11] Id. at 978.
[12] Id.
[13] Id.
[14] Id. at 977, 980.
[15] CVS Pharmacy, Inc., 348 F. Supp. 3d at 981–86.
[16] Doe v. CVS Pharmacy, Inc., 982 F.3d 1204, 1210–12 (9th Cir. 2020).
[17] CVS Pharmacy, Inc. v. Doe, 142 S. Ct. 480 (2021).
[18] 982 F.3d 1204 (9th Cir. 2020).
[19] See Wright v. Giuliani, 230 F.3d 543, 546 (2d Cir. 2000).
[20] S. Rep. No. 93-1297, at 39 (1974).
[21] Paralyzed Veterans of Am. v. Civ. Aeronautics Bd., 752 F.2d 694, 706 (D.C. Cir. 1985).
[22] 29 U.S.C. § 794(a).
[23] S. Rep. No. 93-1297, at 38 (1974).
[24] 29 U.S.C. § 794(a).
[25] Lauren R.S. Mendonsa, Dualing Causation and the Rights of Employees With HIV Under § 504 of The Rehabilitation Act, 13 Scholar: St. Mary’s L. Rev. on Race and Soc. Just. 273, 285 (2010).
[26] See Ruth Colker, The Death of Section 504, 35 U. Mich. J.L. Reform 219, 219 (2002).
[27] Id.
[28] 42 U.S.C. § 12112(a).
[29] Id. § 12132.
[30] Id. § 12182(a).
[31] See id. § 12181(7).
[32] Id. § 12181(7)(F).
[33] Colker, supra note 26, at 219.
[34] See, e.g., Doe v. BlueCross BlueShield of Tenn., Inc., 926 F.3d 235, 241–44 (6th Cir. 2019); Doe 1 v. Perkiomen Valley Sch. Dist., 585 F. Supp. 3d 668, 673 (E.D. Pa. 2022); Helen L. v. DiDario, 46 F.3d 325, 329–32 (3d Cir. 1995).
[35] Berardelli v. Allied Servs. Inst. of Rehab. Med., 900 F.3d 104, 109 (3rd Cir. 2018).
[36] Id. at 110.
[37] See Legal Update on ADA Claims of Disparate Impact vs. Disparate Treatment, Great Lakes ADA Ctr. (Mar. 16, 2022) https://www.accessibilityonline.org/ada-legal/archives/110998. [https://perma.cc/8M6F-9ZXA]
[38] Michael Ashley Stein & Michael E. Waterstone, Disability, Disparate Impact, and Class Actions, 56 Duke L. J. 861, 868 (2006).
[39] See Great Lakes ADA Ctr, supra note 37.
[40] 431 U.S. 324 (1977).
[41] Id. at 328.
[42] Id. at 334–37.
[43] See Griggs v. Duke Power Co., 401 U.S. 424, 430–31 (1971).
[44] Id.
[45] Id. at 425–28.
[46] Id. at 430.
[47] See id.
[48] 469 U.S. 287 (1985).
[49] 532 U.S. 275 (2001).
[50] Choate, 469 U.S. 287 at 289 (1985) (The change was “a reduction from 20 to 14 in the number of inpatient hospital days per fiscal year” that Medicaid would cover).
[51]Id. at 289–90 (“Statistical evidence…indicated that…27.4% of all handicapped users of hospital services who received Medicaid required more than 14 days of care, while only 7.8% of nonhandicapped users required more than 14 days of care.”). See also 42 U.S.C. §12112.
[52] Choate, 469 U.S. at 291–92 (“Because both the 14-day rule and any annual limitation on inpatient coverage disparately affected the handicapped, the panel found that a prima facie case had been made out…”).
[53] Id. at 295.
[54] Id.at 296.
[55] Id.at 296–97.
[56] Id. at 309.
[57] Id. at 299.
[58] Id. at 308.
[59] Id.
[60] See id. at 298–99 (“Had Congress intended § 504 to be a National Environmental Policy Act for the handicapped, requiring the preparation of ‘Handicapped Impact Statements’ before any action was taken… we would expect some indication of that purpose in the statute or its legislative history.”). see also U.S. Env’t Prot. Agency, National Environmental Policy Act Review Process (Oct. 5, 2022) https://www.epa.gov/nepa/national-environmental-policy-act-review-process. [https://perma.cc/A8HD-3VSW]
[61] Choate, 469 U.S. at 301.
[62] Id. at 302.
[63] Id. at 297.
[64] See Sandoval, 532 U.S. at 278.
[65] Id.
[66] Id.
[67] Id.at 279.
[68] Id. at 280–81.
[69] Id. at 281 (“[R]egulations promulgated under § 602 of Title VI may validly proscribe activities that have a disparate impact on racial groups, even though such activities are permissible under § 601.”).
[70] Id. at 282.
[71] See supra text accompanying note 19–20. See also Colker, supra note 26.
[72] 926 F.3d 235, 237 (6th Cir. 2019).
[73] Id.
[74] Id. at 238.
[75] See id.
[76] Id.
[77] Id.
[78] Id. at 243–44.
[79] Id. at 239.
[80] Id at 240.
[81] Id.
[82] Id. at 240–41. (“The Age Discrimination in Employment Act of 1967, it is true, prohibits disparate-impact discrimination… [b]ut unlike that statute, the 1975 Age Act does not bar practices that ‘otherwise adversely affect’ people because of their age..”).
[83] See id. at 242.
[84] Id.
[85] Id. (“The key word is ‘assume.’ Because Choate did not decide the issue either way, and in fact expressed reservations about the effects of disparate-impact liability in this area, we remain free to hold that § 504 does not cover disparate-impact claims.”).
[86] 46 F.3d 325 (3rd Cir. 1995).
[87] Id. at 328.
[88] Id. at 329.
[89] Id.
[90] Id.
[91] See id. at 331–35.
[92] See DiDario, 46 F.3d at 330.
[93] See id. at 331. See also S. Rep. No. 101–116, at 18 (1989) (“State laws are inadequate to address the pervasive problems of discrimination that people with disabilities are facing.”).
[94] DiDario, 46 F.3d at 334.
[95] See id. at 335.
[96] Doe v. Perkiomen Valley Sch. Dist., 585 F. Supp. 3d 668, 688 (E.D. Pa. 2022).
[97] Id. at 673.
[98] Id at 674-75.
[99] Id. at 679.
[100] Id. at 680.
[101] Id. at 679.
[102] Id. at 687.
[103] Id.
[104] See id.; see supra text accompanying notes 52–55.
[105] See Perkiomen Valley Sch. Dist., 926 F.3d at 687–88.
[106] Payan v. L.A. Cmty. Coll. Dist., 11 F.4th 729, 731 (9th Cir. 2021).
[107] Id. at 732.
[108] Id.
[109] Id. at 733.
[110] Id at 734.
[111] Id. at 737.
[112] 469 U.S. 287 (1985).
[113] 81 F.3d 1480 (9th Cir. 1996).
[114] Payan, 11 F.4th at 734–35.
[115] See id.; see supra text accompanying note 55.
[116] Crowder, 81 F.3d at 1485.
[117] Berardelli v. Allied Servs. Inst. Of Rehab. Med., 900 F.3d 104, 109–10 (3d Cir. 2018).
[118] Helen L. v. DiDario, 46 F.3d 325, 331 (3d Cir. 1995) (citing ADAPT v. Skinner, 881 F.2d 1184, 1205 (3d Cir. 1989)).
[119] Alexander v. Choate, 469 U.S. 287, 297 (1985).
[120] 119 Cong. Rec. 5861 (1973).
[121] Id. at 5863.
[122] Id.
[123] See Kitty Cone, Short History of the 504 Sit-in, Disability Rights Education & Defense Fund, https://dredf.org/504-sit-in-20th-anniversary/short-history-of-the-504-sit-in/.
[124] See 119 Cong. Rec. 5882–83 (1973).
[125] Id. at 5883.
[126] Kitty Cone, Short History of the 504 Sit-in, Disability Rights Education & Defense Fund, https://dredf.org/504-sit-in-20th-anniversary/short-history-of-the-504-sit-in/.
[127] S. Rep. No. 101–116, at 6 (1989).
[128] Id.
[129] Id.
[130] Id.
[131] Id. at 44.
[132] Id.
[133] Id.
[134] Id. at 45.
[135] See Helen L. v. DiDario, 46 F.3d 325, 335 (3d. Cir. 1995).
[136] 926 F.3d 235 (6th Cir. 2019).
[137] Alexander v. Sandoval, 532 U.S. 275, 280 (2001).
[138] Id. at 280–282. See also Payan v. L.A. Cmty. College Dist., 11 F.4th 729, 736–737 (9th Cir. 2021) (stating that Sandoval supported its proposition with the use of two Supreme Court cases).
[139] Payan, 11 F.4th at 736.
[140] Id.at 736-37.
[141] See Griggs v. Duke Power Co., 401 U.S. 424, 433–36 (1971).