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States and their agencies cannot be sued under Title I of the Americans with Disabilities Act because Congress, in passing the law, never properly abrogated the states’ 11th Amendment immunity from suit, a federal appeals court has ruled. The decision by a unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals relies heavily on the U.S. Supreme Court’s decision this year in Kimel v. Florida Board of Regents that employed similar logic in concluding that the states cannot be sued under the Age Discrimination in Employment Act. “In light of Kimel, and based on the terms of the statute and its legislative history, we hold that the ADA is not a valid exercise of Congress’ Section 5 power and accordingly does not abrogate the States’ 11th Amendment immunity from suit,” Senior U.S. Circuit Judge Leonard I. Garth wrote in Lavia v. Commonwealth. Garth, who was joined by U.S. Circuit Judges Morton I. Greenberg and Theodore A. McKee, found that Congress may abrogate the states’ 11th Amendment immunity only by making findings of conduct by the states that violates the 14th Amendment’s substantive provisions. In the case of the ADA, Garth said, Congress focused almost entirely on discussing the widespread discrimination that the disabled suffer in the private sector. Garth emphasized that the history of the ADA shows an “absence of any evidence in the legislative history or in Congress’ findings of pervasive violations of the 14th Amendment by the states with respect to the disabled, to justify a prophylactic remedial enforcement measure that would abrogate the states’ 11th Amendment immunity.” Underscoring the lack of evidence of unconstitutional state discrimination against the disabled, Garth said, was the fact that “virtually every state in the country has enacted its own legislation prohibiting discrimination against the disabled in employment, and some have even enacted statutes advancing the explicit policy of encouraging employment of the disabled in state government positions.” Garth found that while states may at times falter in their efforts to eliminate discrimination against the disabled in employment, “the broad sweep of the ADA is out of proportion to the discrimination to be remedied.” Without more detailed findings of a “nationwide pattern of arbitrary and illegitimate discrimination against the disabled by the states,” Garth said, “the ADA cannot be viewed as a proportional and congruous response to the problem of state-perpetrated discrimination against the disabled.” While the ADA’s goal of eliminating discrimination “may be a laudable aim for federal legislation,” Garth said, “it is not one which serves the purpose of enforcing the protections provided by the 14th Amendment.” The power accorded to Congress in Section 5 of the 14th Amendment, Garth said, is limited to remedying constitutional violations committed by the states themselves, and not private members of society. “Because there is no evidence of state violations, we hold that Congress did not validly abrogate the states’ 11th Amendment immunity in enacting the ADA,” Garth wrote. WESTERN DISTRICT OF PENNSYLVANIA RULING REVERSED The decision reverses a ruling by U.S. District Judge Donald E. Ziegler of the Western District of Pennsylvania that denied the Commonwealth’s motion to dismiss. In the suit, Jeffrey D. Lavia claimed that he began working for the Pennsylvania Department of Corrections in March 1991 and was later transferred to the State Correctional Institute at Greene. In 1995, Lavia was promoted to Corrections Officer II. But the following year, he suffered from a seizure and was diagnosed with CNS vasculitis of the brain. Lavia claims that his condition rendered him disabled or that he was perceived as disabled within the meaning of the ADA. Against the recommendation of his doctor, Lavia returned to work, but he claims that he was then harassed at work because of his disability. He claims that he continues to suffer the effects of his medication that, he claims, cause psychotic reactions. As a result of those side effects, Lavia claims, he engaged in conduct at work that resulted in disciplinary action by the department. In May 1997, Lavia was demoted to Corrections Officer I, and was terminated in August 1997. After he sued under Title I of the ADA, the Commonwealth moved to dismiss, arguing that it was immune under the 11th Amendment. But Judge Ziegler declined to dismiss Lavia’s federal claims, holding that Congress had validly abrogated the states’ 11th Amendment immunity. Ziegler relied on a long line of cases from federal appellate courts around the country. But Garth found that “each of the cases … have now been called into question by the Supreme Court’s decision in Kimel.“ Although two appellate courts have, in the months since Kimel , reaffirmed their prior rulings that states may be sued under the ADA, Garth found that “the most penetrating analysis” came from the 7th Circuit in Erickson v. Board of Governors. Garth said the 7th Circuit “correctly noted that the ADA, like the ADEA … imposes upon the states far greater restrictions and obligations than does the rational basis standard of the 14th Amendment by, for example, targeting an employer’s `rational consideration of disabilities.’ “ The 7th Circuit, he noted, “went so far as to declare that ‘because the ADA requires accommodation, forbids practices with disparate impact, and disregards the employer’s intent, it is harder than the ADEA to characterize as a remedial measure’ which is not as broad in its prohibitions.” Garth noted that “neither Lavia nor the Commonwealth cited or discussed the Erickson opinion — even though it had been filed prior to the date the parties submitted their supplemental briefs to this court.” ‘ The Commonwealth was represented in the appeal by Chief Deputy Attorney General John G. Knorr III. Lavia was represented by attorney John A. Adamczyk of Pittsburgh.

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