Professional Licensing Issues: Title II of the ADA applied to State and Local Professional...

8/8/2019 Professional Licensing Issues: Title II of the ADA applied to State and Local Professional Licensing.

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Professional Licensing Issues: Title II of the ADAapplied to State and Local Professional Licensing

Lauren E. Chanatry

July 2007

Prepared for:

Shelley Kaplan, Director

DBTAC: Southeast Center on the Americans with Disabilities Acthttp://www.sedbtac.org/

Ms. Chanatry is a 2009 Juris Doctor candidate at the Syracuse University (SU) College of Law, working

under the direction of William N. Myhill, M.Ed., J.D., Senior Research Associate at the Burton Blatt

Institute (BBI) and Adjunct Professor of Law at SU; 900 S. Crouse Ave., Crouse-Hinds Hall, Suite 300,

Syracuse, New York 13244; email [email protected]; phone (315) 443-1367. For additional

information on related law and policy issues, see http://bbi.syr.edu.

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http://www.sedbtac.org/mailto:[email protected]:[email protected]://bbi.syr.edu/http://bbi.syr.edu/mailto:[email protected]://bbi.syr.edu/http://www.sedbtac.org/


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I. Introduction

The Americans with Disabilities Act (ADA), signed into law on July 26, 1990

by President George H.W. Bush, is the most comprehensive civil rights statute aimed at

eliminating discrimination against persons with physical or mental impairments.1

TheADA prohibits discrimination on the basis of disability in employment, transportation,

and telecommunications. The Act also prohibits such discrimination by State and Local

governments, and by public accommodations and other commercial facilities.2 Atsigning, President Bush stated that the ADA would signal the end of unjustified

segregation and exclusion of persons with disabilities from the mainstream of American

life.3

Discrimination by state governments regulating entry into and membership in

licensed professions falls under ADA Title II. Title II provides that no qualifiedindividual with a disability shall, by reason of such disability, be excluded from

participation in or be denied the benefits, services, programs, or activities of a publicentity, or be subjected to discrimination by any such entity.4 It further requires state

and local government agencies to operate programs so that they are readily accessibleto and usable by individuals with disabilities.5

II. State Licensing Boards and the ADA

Licensing boards are authorized by state governments to control who may

practice in a particular professional field. Consequently, these entities are charged witha duty to protect the public.6 Common boards are the state bar (law) and state medical

boards (medicine). Other licensing boards regulate teaching, pharmacy, nursing, and

other professions. Courts have concluded that licensing boards are Title II entitiessubject to the ADA because they are empowered by state governments to provide

benefits, services, and programs.7 For instance, inBartlett v. New York State Board ofBar Examiners (2nd Circuit), the board denied an applicants request for testingaccommodations, such as extended time and alternative ways to answer questions.8

Bartlett filed suit after failing the test several times.9 The court concluded that if the

1 42 U.S.C. 12180 (2000); Signing Statement, President Bush on the ADA, July 26, 1990, available at

http://www.presidency.ucsb.edu/ws/print.php?pid=187122 42 U.S.C. 121123 Signing Statement, President Bush on the ADA, supra note 1.4

42 U.S.C. 121325 42 U.S.C. 12148(a)(1).6Seee.g., N.C. GEN. STAT. 87-42 (2006) (electrical contracting); ARK. CODE ANN. 17-103-102 (2007)(social work); COLO. REV. STAT. ANN. 12-36-201(1) (2007) (medicine).7See, e.g., Theriault v. Flynn, 162 F.3d 46 (1st Cir. 1998); Burke v. State Bar of Cal., No. C 06-06950

WHA , 2007 WL 39397 (N.D. Cal., Jan. 4, 2007).8 226 F.3d 69 (2d Cir. 2000). Bartlett sought unlimited or extended time to take the test and permission

to tape record her essays and to circle her multiple choice answers in the test booklet rather than

completing the answer sheet. Id. at 75.9Id.

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http://www.presidency.ucsb.edu/ws/print.php?pid=18712http://www.presidency.ucsb.edu/ws/print.php?pid=18712


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applicant had a disability, she was entitled to the requested accommodations because

the Board was subject to Title II of the ADA.10

On remand, the district court for the Southern District of New York concluded

that the plaintiff [was] substantially limited in the major life activity of readingby

her slow reading rate and by the fatigue caused by her inability to read withautomaticity.11 In the alternative, the court concluded the plaintiff [was] substantially

limited in the major life activity of working because the Boards failure to

accommodate her reading impairment was a substantial factor contributing to herfailure to pass the bar.12 Accordingly, the court found the plaintiff was entitled to

reasonable accommodations when taking the New York State Bar Examination.13

A 1995 Department of Justice settlement granted testing accommodations toqualified individual with disabilities. A plumber with dyslexia filed a complaint against

the Rockland County Board of Plumbing, Heating and Cooling Examiners, alleging

Title II discrimination for refusing to provide accommodations to the written portion of

the countys plumber licensing exam.

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The individual had previously demonstratedforty-two years of competency as a plumber and businessperson.15 The settlement

agreement required the Board to accommodate the plumber by providing a reader or anoral exam, and to adopt a policy of nondiscrimination subject to DOJ approval .16

Other cases against licensing boards alleging Title II discrimination have turned

on the content of application questions. InEllen S. v. Florida Board of Bar Examiners,an applicant for admission to the bar sued the Florida Board claiming that application

questions pertaining to an emotional disorder violated the ADA.17 The district court for

the Southern District of Florida held that a defendant need not have knowledge of theplaintiffs disability in order to violate the ADA.18 The court further held that

questioning the applicant as to whether she had ever sought treatment for a nervous,

mental, or emotional disorder or had been diagnosed as having such a conditionviolated Title II.19

Similarly, in Clark v. Virginia Board of Bar Examiners, a federal district courtheld that a Virginia bar application question, asking whether an applicant had been

treated for mental illness or had obtained counseling in the past five years, violated the

ADA.20 The district court for the Eastern District of Virginia decided that, absent a

10Id. at 86.11 Bartlett v. N.Y. State Bd. of Law Examrs, No. 93 CIV. 4986(SS), 2001 WL 930792, at *3 (S.D.N.Y.,

Aug. 15, 2001).12

Id.13Id.14 Department of Justice, Enforcing the ADA: A Status Report from the Department of Justice (Apr.-Sep.,1995), available athttp://www.usdoj.gov/crt/ada/pubs/sep95.txt15Id.16Id.17 859 F.Supp. 1489 (S.D. Fla., 1994).18Id. at 1491.19Id. at 1494.20 880 F.Supp. 430, 433 (E.D. Va., 1995).

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http://www.usdoj.gov/crt/ada/pubs/sep95.txthttp://www.usdoj.gov/crt/ada/pubs/sep95.txthttp://www.usdoj.gov/crt/ada/pubs/sep95.txthttp://www.usdoj.gov/crt/ada/pubs/sep95.txt


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showing the applicant would pose a direct threat to her clients, her failure to answer the

open-ended mental health inquiry did not prevent her from becoming a member of the

bar.21

Title II, however, has not consistently protected persons with disabilities

seeking membership in board-regulated professions. In Applicants v. Texas State Boardof Law Examiners, the bar application asked the following two-part question:

a) Within the last ten years, have you been diagnosed with or have you beentreated for bi-polar disorder, schizophrenia, paranoia, or any other psychotic

disorder?

b) Have you, since attaining the age of eighteen or within the last ten years,whichever period is shorter, been admitted to a hospital or other facility for the

treatment of bi-polar disorder, schizophrenia, paranoia, or any other psychotic

disorder?22

An affirmative answer to either part of this question required the applicant to provide a

detailed description of the diagnosis or treatment, and to identify and provide theaddress of each individual who had treated the applicant.23 Answering affirmatively also

required an applicant to sign a limited authorization for release of mental health records

to those who had diagnosed or treated the applicant.24

The district court for the Western District of Texas upheld the question stating,

[b]ipolar disorder, schizophrenia, paranoia, and psychotic disorders are serious mental

illnesses that may affect a persons ability to practice law. People suffering from theseillnesses may suffer debilitating symptoms that inhibit their ability to function

normally.25

Some courts have shown reluctance to make a decision on discriminatory

licensing issues. InJohnson v. State of Kansas,26a Kansas bar applicant with chronic

bipolar affective disorder sued the Kansas Supreme Court for violations of the ADAafter it rejected his application. The federal district court for Kansas cited case law to

support the proposition that it lacked jurisdiction to review a denial of membership to

the bar.27 However, Johnsons actual claim was a general challenge to allegedly

discriminatory policies, patterns or established practices in the application of Kansas baradmission rules, rather than his specific rejection. By claiming it lacked jurisdiction, the

court avoided hearing the main issue of discrimination. This decision appears erroneous

because federal courts clearly have jurisdiction over ADA cases.28

21Id. at 446.22 No. A93 CA 740SS, 1994 WL 776693, at *2 (W.D. Tex. Oct. 11, 1994) (quoting question # 11).23Id.24Id.25Id. at *3.26 888 F.Supp. 1073, (D. Kan. 1995).27Id. at 1079.28Kleiber v. Honda of America Mfg., Inc., No. 06-3490 (6th Cir. May 03, 2007).

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State medical boards may have a greater obligation to protect the public from

harm than State Bars. InKirbens v. Wyoming State Board of Medicine, a physiciandiagnosed with bipolar affective disorder, narcissistic personality disorder, and who

claimed his misconduct resulted from his disabilities, sought judicial review of the

revocation of his license by the Board of Medicine after a contested case hearing.29

TheSupreme Court of Wyoming held that a physician who poses a risk to the health or

safety of patients was not a qualified individual with a disability within the meaning

of the ADA. The Board therefore was not required to make an accommodation underthe ADA by either accepting his resignation, or by placing him in a state-sponsored

rehabilitation program (such as those authorized by state law for doctors with an

alcohol or drug dependence issue.)30 In 2003, the Wyoming legislature amended the

powers and duties of its state medical board to remove the requirement to assist doctorsexhibit[ing] disruptive behaviors, substance dependence or physical or mental

impairment return to practice.31

III. Conclusion

Employers generally assume a candidate meets essential qualifications if board-certified. Thus Title II litigation against state boards largely focuses on subjective

decisions boards make when balancing their duty to protect the public with the rights of

individuals seeking membership into the profession. Much of the law regardinglicensing has been settled since the mid-1990s,32 however, district courts continue to

interpret and clarify acceptable application questions. Boards may ask questions

concerning disabilities, although prudential concerns limit the scope of these questions.For example, an impairment actually must limit the applicants ability to perform the

specific job.

Broad questions about mental illness are not allowed. To satisfy judicialscrutiny, questions about mental illness must specifically address presently occurring

illness. A question probes too far into the past when the probative value of the question

to demonstrate current impairments is substantially reduced by the lapse of time.33 Also,boards must be able to justify their questions as a reasonable measure to protect the

public. Successful questions often ask the applicant for a subjective answer to whether

their disability would affect their job.

29 992 P.2d 1056, 1060 (Wyo. 1999).30Id. at 1064.31 Wyo. Stat. Ann. 33-26-202(b)(xii) (1987), amended by 2003 Wyo. Sess. Laws Ch. 190 (Mar. 7,

2003).32 Stanley S. Herr, Questioning the Questionnaires: Bar Admissions and Candidates with Disabilities, 42

VILL. L. REV. 635, 680 (1997).33See Mariam Alikhan, The ADA is Narrowing Mental Health Inquiries on Bar Applications: Looking to

the Medical Profession to Decide Where to go From Here, 14 GEO. J. LEGAL ETHICS 159, 16367 (2000);

Herr, supra note 32, at 64046.

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