Margot Tierney, Associate Member, University of Cincinnati Law Review
“Get vaccinated and wear your mask – not just to protect yourself but to protect others as well!” Everyone has heard a variation of this quote, especially within the past year of the COVID-19 pandemic. While many eligible individuals in the United States have done their part to end the pandemic by getting vaccinated, the vaccine alone does not best protect against the new, stronger strains of the COVID-19 virus. Thus, mask wearing in tandem with vaccinations should be promoted to “protect others as well” – especially those who are at risk due to compromised immune systems.
Stemming from this logic, students in a Pennsylvania school district argued that lifting the district’s mask mandate would create a “disparate impact” against those with compromised immune systems and, ultimately, would violate both the Americans with Disabilities Act (ADA) and the Rehabilitation Act. While the school district encouraged the United States District Court for the Eastern District of Pennsylvania to follow the newly established Sixth Circuit precedent, which held that disparate impact cases cannot be brought under the ADA or the Rehabilitation Act, the district court instead relied on the holding of a previous Third Circuit case to find that disparate impact cases can be brought under these laws. This decision by the district court created a precedential split among federal courts, with both sides making compelling legal arguments for their respective interpretation of applicable statutes. Since the two sides of the circuit split have relied on different modes of valid statutory interpretation in forming their holdings, Congress should resolve any ambiguity by amending the language in the statutes to reconcile these different conclusions. Specifically, Congress should include express language allowing for disparate impact claims to be brought under the ADA and/or the Rehabilitation Act.
A. The Americans with Disabilities Act (ADA) and the Rehabilitation Act
The Rehabilitation Act of 1973 was one of the earliest attempts by the legislature to protect the rights of disabled employees. The Rehabilitation Act prohibits discrimination based on disability in programs that either (1) receive federal financial assistance, (2) are conducted by federal agencies, (3) are deemed “federal employment, and (4) are employment practices of federal contractors.
However, the most well-known legislation protecting the rights of disabled individuals is the Americans with Disabilities Act. The ADA, passed in 1990, is a civil rights act that aims to proscribe discrimination of an individual based on their disability or disabilities and covers a broad range of disabilities from physical to mental as well as permanent and temporary or short-term disabilities. The essential aim of the ADA is to allow people with disabilities to be fully participating members of society by allowing these individuals equal opportunities as those without ADA qualified disabilities. One of the manners through which an organization can achieve this essential aim of the ADA is through the use of reasonable accommodations. Reasonable accommodations, typically made in the employment setting, are modifications made to the tasks or jobs of those with ADA disabilities which allow the disabled individual to perform successfully in workplace. These accommodations are not “special treatment” and can often benefit an entire organization. Many individuals who fall within the ADA’s protection have sought reasonable accommodations with the COVID-19 requirements and mandates. Because the ADA covers a wide breadth of disabilities, the various “reasonable accommodations” work in different ways to best protect the interests of the disabled individual.
B. Disparate Impact
As a result of discrimination, some individuals may experience what is known as a “disparate impact.” Disparate impact refers to practices where the employer implements seemingly neutral rules and practices which ultimately negatively affect a particular class of people who possess a protected characteristic, such as race, sex, and disability. These practices are deemed “facially neutral” but disproportionately affect those in a protected class, regardless of the initial intent of practice. Several federal laws have explicit disparate impact provisions, such as the Age Discrimination in Employment Act (ADEA) and Title VII, which allow the discriminated individual to bring suit against the employer without having to show that the employer intentionally discriminated against the employee(s). However, even laws that do not contain explicit disparate impact provisions have served as a basis for such claim.
C. Split: Can Disparate Impact Cases Be Brought Under the ADA?
The question of whether disabled individuals can bring a disparate impact claim under the ADA is one that has only recently been litigated in federal court, and, thus, the Supreme Court has yet to address it. Because the Supreme Court has not yet ruled on the matter, federal courts are left to work through it on their own, reaching different conclusions on the same issue. The Sixth Circuit ruled in 2019 that one cannot bring a disparate impact case under the ADA or the Rehabilitation Act. However, a federal district court in Pennsylvania in 2022 opted to not follow the 2019 precedent set by the Sixth Circuit and instead to follow the Third Circuit’s logic that the can be read in conjunction with the purpose behind the laws in order to allow these claims to be brought under the ADA or the Rehabilitation Act.
i. Sixth Circuit: Individuals Cannot Bring a Disparate Impact Claim Under the ADA and the Rehabilitation Act
The Sixth Circuit in 2019 held that a disabled individual could not bring his disparate impact case under the ADA. An anonymous individual, John Doe, brought a case against his health insurance provider, BlueCross BlueShield, after his insurance no longer reasonably allowed him to receive his HIV medication from his usual community pharmacy. Instead, he was required to receive his medication from a specialty pharmacy or through the mail. Doe not only worried that receiving the medication via mail could potentially lead to heat damage, resulting in ineffectiveness of the medication but also believed that receiving the medication through his mail would compromise his privacy. Thus, he asked BlueCross BlueShield for an accommodation which would allow him to receive his medication from his usual pharmacy; however, this request was denied. As a result, Doe brought suit against the insurance company under the ADA and Rehabilitation Act claiming a disparate impact.
The court, however, found that he could not successfully bring these claims against his insurance company. While Doe alleged that denying him this access violated section 504 of the Rehabilitation Act, the court found that the insurance company did not violate this section because Doe was still able to participate in his insurance plan and the change did not deny him benefits. Additionally, the Sixth Circuit held that BlueCross BlueShield did not violate the ADA either because the ADA prohibits discrimination based on disability in the use of public facilities “by any person who owns, leases, or operates a place of public accommodation,” and since BlueCross BlueShield did not have this kind control over the pharmacy, Doe’s claims failed under the ADA. Further, Doe argued that although the change in his insurance ultimately was not motivated by discrimination, individuals with HIV were disproportionately affected. Nonetheless, the court rejected these disparate impact claims and read the language of the ADA and the Rehabilitation Act as to require showing of a discriminatory purpose. Therefore, the Sixth Circuit held that Doe could prove a disparate impact under neither the ADA nor the Rehabilitation Act.
ii. Third Circuit: Individuals Can Bring Disparate Impact Claims Under ADA and Rehabilitation Act
In early 2022, a federal district court rejected the Sixth Circuit’s reading of the ADA and Rehabilitation Act and opted for a broader interpretation of the statutes by relying on Third Circuit precedent. In this case, disabled students and their parents brought suit under the ADA and Rehabilitation Act against a Pennsylvania school district that had relaxed its mask mandate. These students had disabilities that made them extremely susceptible to the COVID-19 virus, and if they ultimately contracted the virus, they would likely have severe medical complications. Mask wearing by these students as well as their peers would diminish the likelihood of the disabled students contracting the virus. Thus, students and parents argued that the new “mask optional” policy created a disparate impact on the children by ultimately denying them proper access to public education without disproportionate risk to their health and wellbeing.
Unlike the Sixth Circuit, the District Court for the Eastern District of Pennsylvania found that the students and their parents could successfully bring a disparate impact claim under the ADA and the Rehabilitation Act. The court relied on the logic of a Third Circuit case, which reasoned that the ADA and the Rehabilitation Act were passed in order to resolve benign neglect of disabled individuals by public entities. The Third Circuit then extended that logic to conclude that individuals should be able to bring disparate impact claims under these acts in order to fight unintentional but discriminatory effects. Thus, the District Court for the Eastern District of Pennsylvania extended the Third Circuit’s logic and allowed the plaintiffs to bring their disparate impact claims under the ADA and Rehabilitation Act.
When interpreting a statute, courts can look to various methods of interpretation to determine the meaning and the purpose of the law. The courts in these two cases placed emphasis on different aspects of statutory interpretation and ultimately reached different conclusions as a result. The Sixth Circuit relied on the plain meaning of the statutes’ text to reach its conclusion, while the District Court for the Eastern District of Pennsylvania focused on the legislative intent of the statutes. Since both of these canons of interpretation are valid, Congress should amend the language in these statutes to make clear to the courts which vein of interpretation is correct and resolve any further discrepancies. In resolving these differences, Congress should opt to employ language which allows for plaintiffs to bring disparate impact claims under the ADA and the Rehabilitation Act.
A. Sixth Circuit: Plain Meaning
The Sixth Circuit heavily emphasizes the plain meaning of the statute in determining whether a disparate impact claim can be brought under the ADA and the Rehabilitation Act. In reading the “plain meaning,” the interpreter significantly relies on the written text provided, similar to a textualist approach to reading the Constitution. This approach often calls for examining the dictionary definition of words provided in the law. The Sixth Circuit takes this approach and examines the ordinary meaning of the words, calling upon common definitions, such as for the word “operate,” to determine that the plain meaning of the laws do not cover disparate impact claims. The language of the text bars discrimination “based ‘solely on her or his disability.’” Thus, the court reads the text to mean that the discrimination must be motivated by a desire to discriminate, and does not read it to include neutral actions which may have the effect of discrimination. The court reasoned that if the text were to include slightly different phrasing, such as “otherwise adversely affect,” that it would be more inclined to read the language as allowing disparate impact claims; however, this is not the language Congress used. Therefore, by relying on the plain meaning, the Sixth Circuit read the ADA and the Rehabilitation Act to require intent and thus not to cover disparate impact claims.
B. Third Circuit: Legislative Intent
The District Court for the Eastern District of Pennsylvania, relying on the Third Circuit, interpreted the same laws in a different manner by relying on legislative intent. This canon of interpretation looks not only to the text of the statutes and laws but also to the circumstances and purpose surrounding the passage of a particular statute. The district court found that when Congress passed the ADA and the Rehabilitation Act, its goal was to take action to protect disabled persons from being made “invisible” and passed over within society. It reasoned that the protections of the ADA and the Rehabilitation Act were meant to go beyond acts of deliberate or overt discrimination and were meant to protect the disabled from any actions which may neglect or discriminate against them. Thus, the district court found that under the legislative intent of these acts, disabled individuals could bring disparate impact claims.
C. Amendments Need to Be Made by Congress
Splits among federal courts in interpreting laws often are an indication to Congress that the text of given laws should be revisited and possibly revised. Revisiting and revising the text is the best way to preserve the aims of those laws, rather than having the Supreme Court “legislate from the bench.” Here, federal courts have employed different canons and tools of statutory interpretation to reach different results. These issues must be resolved, preferably by Congress, so that the laws can be applied uniformly, and, more importantly, so that individuals’ rights are preserved across all judicial forums. Especially given the unique situation in which the COVID-19 pandemic has left the world, Congress should reevaluate the ADA and Rehabilitation Act and determine how it can better serve those who face new or worsened disabilities due to the COVID-19 virus. Thus, allowing individuals to bring disparate impact claims under these acts would ensure that individuals who face disparate effects regarding their medical treatment are able to seek and achieve justice.
The ongoing pandemic has led to a new approach to almost all aspects of life, even in the legal field. In refusing to follow the Sixth Circuit’s, pre-pandemic approach to interpreting the ADA’s and Rehabilitation Act’s language, the District Court for the Eastern District of Pennsylvania may have chosen a different route of interpretation to better address new threats COVID-19 posed to different groups of individuals and sought to offer these groups better protection. Regardless, laws such as the ADA and Rehabilitation Act should be reevaluated and modified to address the long-term effects of the COVID-19 pandemic so that the country can navigate the new and ever-shifting environment.
 As of March 22, 2022, 217 million Americans have been fully vaccinated against the COVID-19 virus. U.S. COVID-19 Vaccine Tracker, The Mayo Clinic, https://www.mayoclinic.org/coronavirus-covid-19/vaccine-tracker (last visited Mar. 22, 2022).
 Community Use of Masks to Control the Spread of SARS-CoV-3, Center for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/masking-science-sars-cov2.html (last visited Mar. 22, 2022).
 Doe v. Perkiomen Valley Sch. Dist. [Perkiomen], No. 22-cv-287, 2022 U.S. Dist. LEXIS 21079, at *38 (E.D. Pa. Feb. 7, 2022).
 Doe v. BlueCross BlueShield of Tenn. [BlueCross], Inc., 926 F.3d 235, 244 (6th Cir. 2019).
 Perkiomen Valley Sch. Dist., supra note 3.
 Rehabilitation Act, 29 U.S.C. §701.
 The Americans with Disabilities Act, 42 U.S.C. § 12101.
 Dep’t of Lab., Accommodations, https://www.dol.gov/agencies/odep/program-areas/employers/accommodations (last visited Mar. 22, 2022).
 Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971).
 Age Discrimination in Employment Act, 28 U.S.C. §§ 621-634; Title VII, 42 U.S.C. §2000-e(2).
 See Alexander v. Sandoval, 532 U.S. 275 (2001).
 BlueCross, 926 F.3d at 244.
 Perkiomen, No. 22-cv-287 at 38.
 BlueCross, 926 F.3d at 244.
 Id. at 237-38 (his insurance would still allow him to receive his medication from this pharmacy; however, it would cost him thousands as opposed to $120 it would cost to pick it up from the specialty pharmacy).
 Id. at 238.
 Id. at 244.
 “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 federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.” 29 U.S.C. §701.
 BlueCross, 926 F.3d at 244.
 42 U.S.C. §12182(a)
 BlueCross BlueShield did not own, lease, or operate Doe’s preferred pharmacy. BlueCross, 926 F.3d at 243.
 Id. at 242.
 Id. at 244.
 Perkiomen, No. 22-cv-287 at 38.
 Id. at 15.
 Id. at 33-34.
 Helen L. v. DiDario, 46 F.3d 325 (3rd Cir. 1995).
 Perkiomen, No. 22-cv-287 at 33.
 Id. at 35.
 BlueCross, 926 F.3d at 244.
 Perkiomen, No. 22-cv-287 at 33-34.
 Georgetown University Law Center, A Guide to Reading, Interpreting, and Applying Statutes, https://www.law.georgetown.edu/wp-content/uploads/2018/12/A-Guide-to-Reading-Interpreting-and-Applying-Statutes-1.pdf (last visited Mar. 22, 2022).
 Id. at 240.
 Id. at 244.
 Georgetown University Law Center, supra note 44.
 Perkiomen, No. 22-cv-287 at 34.
 Catherine Cook, Legislating from the Bench, Harvard Political Review (March 3, 2009), https://harvardpolitics.com/legislating-from-the-bench/.