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The section of the Americans with Disabilities Act that forbids discrimination by a public entity can be the basis for a claim of employment discrimination, a Southern District judge has ruled. Judge Shira Scheindlin found that Title II of the ADA should be read expansively enough to include employment claims in the case of Transport Workers Union of America v. New York City Transit Authority, 02 Civ. 7659. Scheindlin also ruled that a labor union has standing to assert claims of employment discrimination on behalf of its members under both Title I and Title II of the act. The issues arose when three labor unions representing employees at mass transportation depots in Manhattan, Brooklyn and the Bronx filed suit claiming it was discriminatory for the Transit Authority to require employees seeking sick leave to produce documents showing a diagnosis and treatment plan — and possibly submit to medical examinations to justify the leave. The unions filed under the part of Title I that forbids an employer from requiring a medical examination or making inquiries into whether or not a person is disabled “unless such examination or inquiry is shown to be job-related and consistent with business necessity.” A second claim was filed under the Title II prohibition against discrimination by a public entity. The authority moved to dismiss, claiming the unions lacked standing to assert those claims. It also argued that an employment discrimination claim cannot be made under Title II. Scheindlin said that neither Title I nor Title II has a statutory standing requirement, but that the unions met the test for standing to both “sue in their own right” and sue “on behalf of their constituents.” The judge then turned to the issue of employment discrimination under Title II, which she said has yet to be resolved by the 2nd U.S. Circuit Court of Appeals. “Many courts have considered precisely this question,” she said. “The weight of the authority answers that question in the affirmative, although the majority of the most recently decided cases answer it in the negative.” The problem, she said, is that Title II is “susceptible to two plausible readings” and courts must turn to implementing regulations and legislative history to determine its scope. While Title II does not “contain an extensive definition of the term ‘discrimination,’” she said, Congress delegated to the attorney general the authority to issue regulations and “the Attorney General, in turn, has explicitly determined that Title II applies to employment discrimination.” The legislative history also shows that Congress intended Title II to “work in the same manner” as � 504 of the Rehabilitation Act, which she said is “unquestionably an employment discrimination provision.” The judge found that the unions had “stated viable claims for employment discrimination under both Titles,” and denied the authority’s motion to dismiss. Walter M. Meginniss Jr. and Margaret A. Malloy of Gladstein, Reif & Meginniss and David B. Rosen represented the plaintiffs. Richard Schoolman and Michele Sheridan represented the Transit Authority.

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