73The reasonable accommodation requirement is largelyincongruent with Title II but is nonetheless a valid theory in itself.74When aplaintiff can show failure to accommodate, he or she has already shown thestandard prima facie case.75Finally, damages are available under the ADA,though only when a party can show discriminatory intent or deliberateindifference,76which can be shown in a number of ways such as by showingthat the law or regulation being challenged was facially discriminatory.77Title II directs the Attorney General to issue regulations implementingthe law.78The Attorney General has done so.79In these regulations are ahost of requirements and prohibitions on discrimination.80Among the mostpopular regulations in litigation are (1) the methods of administrationon the Origins of the ADA Restoration Act of 2008, H.R. 3195, at 5).” Dottin v. Texas Dept. of crim. Justice, 2014 WL 11498078, *8 (E.D. Tex. Nov. 25, 2014)7142 U.S.C. §12102 (2)72Salinas v. City of New Braunfels, 557 F.Supp 2d 777, 781 (W.D. Tex. 2008)(Stating, “Courts have broadly construed the “services, programs, or activities” language in the ADAand the Rehabilitation Act to encompass “anything a public entity does.”)73Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206 (1998)74Supranote 6975Supranote 6976D.E. v. Central Dauphin School Dist. 765 F.3d 260, 268 (3rdCir. 2014) (Stating, “To establish claims under § 504 of the RA and the ADA, a plaintiff must demonstrate that: (1) he has a disability, or was regarded as having a disability; (2) he was “otherwise qualified” to participate in school activities; and (3) he was “denied the benefits of the program or was otherwise subject to discrimination because of [his] disability.” Where, as in the instantcase, a plaintiff seeks compensatory damages as a remedy for violations of the RA and the ADA, it is not enough to demonstrate only that the plaintiff has made out the prima facie case outlined above. He or she must also demonstrate that the aforementioned discrimination was intentional. A showing of deliberate indifference satisfies that standard.”) (Internal citations omitted); Phipps v. Sheriff of Cook County, 681 F.Supp. 2d 899, 917 (N.D. Ill. 2009) (Stating, “Rather, they contend, they need only show that, but for their disabilities, they would not have been discriminated against. The plaintiffs are incorrect. It is true that not all ADA claims require a showing of intentional discrimination…However, it is necessary to show intentional discrimination in order to recover compensatory damages (as opposed, say, to injunctive relief).”)77Lovell v. Chandler, 303 F.3d 1039, 1057 (9thCir. 2002) (Stating, “this case involves facialdiscrimination, in the form of a categorical exclusion of disabled persons form a public program. In such a case, the public entity is, at the very least, “deliberately indifferent;” by its very terms, facial discriminating is intentional.”) (Italics in original)7842 U.S.C. §121347928 C.F.R part 35 80Id.
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- Fall '19
- Americans with Disabilities Act of 1990