The statute of limitations for nonemployment ADA claims is:
A. The state’s personal injury statute of limitations.
B. The state’s disability discrimination statute of limitations.
C. The federal four-year statute of limitations.
D. A, B or C.
The correct answer is D.
Readers of my blog, Understanding the ADA (http://www.williamgoren.com/blog), know that I have discussed the issue on two different occasions: http://www.williamgoren.com/blog/2015/07/20/applicable-statute-of-limitations-for-ada-claims-dickinson-v-university-of-north-carolina and http://www.williamgoren.com/blog/2013/04/15/ada-applicable-statute-of-limitations. Breaking it down works this way:
- What is the most appropriate statute of limitations for the claim?
Answer: In most situations, it is going to be the state’s personal injury statute of limitations. However, some states have disability discrimination statutes, and in those situations, the disability discrimination statute of limitations may be the most appropriate. In general, the personal injury statute of limitations will be the go-to in most states. With respect to retaliation claims, the statute of limitations is going to relate to whatever title of the ADA is involved (e.g., Title I, Title II or Title III). Title I requires administrative exhaustion with the Equal Employment Opportunity Commission or an equivalent state agency within a certain period of time (180 days for the EEOC or 300 days if an equivalent state agency is used for the filing) before bringing suit, but the other two titles do not require any administrative exhaustion.
- Why is there even a debate over whether the federal statute of limitations of four years applies to the ADA?
Answer: The ADA was signed in July 1990. In December 1990, the federal four-year statute of limitations went into effect, but that law applies only to federal causes of action arising under federal statutes with no statute of limitations after December 1990 and was not retroactive. That is, since the ADA was signed in July 1990, ADA claims were not subject to the federal four-year statute of limitations. However, the ADA Amendments Act was signed by President George W. Bush in 2008, many years after the federal four-year statute of limitations went into effect.
- How do you decide when the four-year federal statute of limitations applies to ADA claims?
Answer: You will have to check the case law in your jurisdiction. Currently, there are two possible approaches because you can have different interpretations of the U.S. Supreme Court decision in Jones v. R.R. Donnelley And Sons Company, 541 U.S. 369 (2004). The terms used by the court in deciding when the federal four-year catchall statute of limitations applied included: “creation of new rights of action and corresponding liabilities,” whether “the plaintiff’s claim against the defendant was made possible by a post-1990 enactment,” and “whenever a post-1990 enactment creates a new right.” The thing of it is, you get to different places depending upon whether a court seizes on the rights language or whether it seizes upon whether the plaintiff’s claim against the defendant was made possible by a post-1990 enactment.
- Why do you get to different places depending upon whether a court seizes upon the rights language or on the made possible language used in Jones?
A. Case Law
Answer: The answer is Civics 101. In the United States, it is often said that the legislature makes the law, the executive branch enforces or carries out the law, and the judicial branch interprets the law. Many definitional terms in the original ADA were not defined, and so it was left to the U.S. Supreme Court to define those terms. For example, the original ADA did not have a definition of “substantial limitation” or “major life activities.” (The ADA defines a person with a disability as an individual with a physical or mental impairment that substantially limits one or more of life’s major activities.) Also, the original ADA did not discuss how a person with a disability would be evaluated if he used mitigating measures, such as hearing aids, etc. Accordingly, the Supreme Court stepped in and answered all of these questions, the effect of which was to severely narrow the scope of the ADA because:
- Substantial limitation was defined in terms of a person being severely restricted or prevented from performing a manual task (Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002)), which courts then extended across all disabilities.
- From Sutton v. United Airlines, 527 U.S. 471 (1999):
- a. Mitigating measures must be factored into the analysis when deciding whether a person has a disability.
- b. if a person is alleging that he was regarded as having a disability (the third possible way a person could have a disability under the ADA), he had to show that the employer regarded the individual as having a physical or mental impairment and regarded the individual as being substantially limited in a major life activity (a very difficult standard to meet).
The combination of Sutton and Toyota meant that it was extremely difficult for a person with a disability to be covered by the ADA. Further, the combination of the two decisions had the perverse effect of discouraging people with disabilities from using mitigating measures to compensate for the disability because any mitigating measures used were counted against them.
Answer: In 2008, George W. Bush signed the ADA Amendments Act. That law did several things, including but not limited to the following. First, it explicitly overruled Toyota Motor and Sutton with respect to what it means to be substantially limited and with respect to the use of mitigating measures, fully correctable eyeglasses excepted. Second, it specifically says disabilities that are episodic are to be considered disabilities if they would be a disability when active. Third, major life activities were specifically defined. Finally, it says that with respect to regarded-as claims, a plaintiff need only show that he was regarded as having a physical or mental impairment and does not need to show he was regarded as being substantially limited in a major life activity.
Did the ADAAA create new rights?
Answer: With respect to those alleging they were regarded as having a disability, alleging they have a disability even though they use mitigating measures, or alleging they have a disability that is episodic, the explicit references in the ADAAA on these points would most certainly argue for new rights being created. Since rights were being created post-1990, the four-year federal statute of limitations most probably applies to these claims.
Is the ADAAA interpretive?
Answer: Yes. For example, the ADAAA explicitly says that “substantial limitation” as defined in Toyota Motor needs to be much broader than how the U.S. Supreme Court and the EEOC had previously defined it.
So how does it all play out?
A. Rights Jurisdiction (Cordova v. University of Notre Dame Du Lac, 936 F. Supp. 2d 1003 (N.D. Ind. March 29, 2013))
Answer: In this case, the court adopted a rights-based approach and therefore held that the plaintiff was subject to the state’s personal injury statute of limitations, which had expired prior to bringing the claim. It is also worth noting that the court also held that proceeding with a claim through the university’s internal procedures did not toll the statute of limitations (i.e., stop the statute of limitations from running while the university’s procedures were completed).
Made Possible Approach (Dickinson v. University of North Carolina, 2015 U.S. Dist. LEXIS 31721 (M.D. NC March 16, 2015))
Answer: In this case, the court seized upon “the claims were made possible” language of Jones and attacked the problem in terms of whether the person as the ADA was interpreted prior to the ADAAA would be able to get to first base. In this particular case, they said prior to the ADAAA, this particular person would not have gotten to first base, but would under the ADAAA. Accordingly, this person was able to use the four-year statute of limitations. In this kind of jurisdiction, you wind up with a trial within a trial. That is, in order to prevent use of the four-year statute of limitations, the defense, since the statute of limitations is an affirmative defense, would have to show that a person would have had a disability under the ADA prior to the amendment to the ADA. If that showing can be made, then the applicable state statute of limitations will apply. Absent such a showing, the four-year statute of limitations applies. Finally, keep in mind that while the statute of limitations is an affirmative defense, which would mean normally it would be up to the defense to make the requisite showing, it can be raised in a motion to dismiss where failure to comply with the statute of limitations is apparent from the face of the pleadings. In that situation, the burden would be on the plaintiff to establish she would not have been a person with a disability prior to the amendment to the ADA but is one after the amendments. So, assuming a “claims were made possible” jurisdiction, the ability to use the four-year statute of limitations is very much in play after a trial within a trial (expensive).
So what should you do?
Answer: A college or university needs to recognize that it is entirely possible the statute of limitations for nonemployment ADA claims is four years. Accordingly, it certainly doesn’t pay to go into a reactive mode. Litigation is extraordinarily expensive. Your best approach is going to be preventive law. Therefore, colleges and universities should engage in an ADA compliance audit, which I discussed at http://www.williamgoren.com/blog/2013/07/29/ada-compliance-auditing-higher-education, and put preventive systems in place so as to deter future litigation.