Title I of the Americans With Disabilities Act requires that a person seeking to file a claim for employment discrimination must first file a claim with the EEOC or a substantially equivalent state agency and receive a right to sue letter before proceeding in court. What if you wish to file a claim under title III of the Americans with Disabilities Act, do you first have to exhaust administrative remedies? Title III of the Americans With Disabilities Act does allow for administrative remedies. That is, you could file a claim with the Department of Justice, but the question is do you have to before being able to proceed in court? The answer to this question is as follows. If you are in a jurisdiction governed by the Ninth Circuit, the answer is no. The District Courts in New Jersey and the S.D. Ohio also say no. However, a district court in Colorado in two different opinions written by the same judge (John Kane) 16 years apart from each other say yes (i.e. administrative remedies must be exhausted prior to filing suit under title III of the ADA).
The two opinions from the District Court in Colorado saying administrative remedies must be exhausted first are: Howard v. Cherry Hills Cutters, Inc., 935 F. Supp. 1148 (D. Colo. 1996); and Lillard v. Sunflower Farmers Market, Inc., 2012 WL 5936543 (D. Colo. November 27, 2012). In both cases, Judge Kane held that title III of the ADA requires exhaustion of administrative remedies as a precondition to filing suit where the complaint contains allegations that are also prohibited by state or local law. In the first decision, Judge Kane seems to suggest that the reference to § 2000a-3(a) and 42 U.S.C. § 12188 necessarily includes a reference to 42 U.S.C. § 20000a-3(c). Howard 935 F. Supp. at 1150. In the second decision, he came to the same conclusion by saying that 42 U.S.C. § 12188 related back to 42 U.S.C. section 2000a-3(a), which in turn is limited by an exhaustion requirement in a separate section, 2000a-3(c) because 42 U.S.C. § 12188 refers to “remedies and procedures,” of 42 U.S.C. §2000a-3(a) and 42 U.S.C. § 2000a-3(c) would be a procedure. Lillard 2012 WL 5936543 at *1.
Judge Kane is all by himself out there, again apologies to Eric Carmen, and perhaps Celine Dion as well who covered the song. Prior to the time the Ninth Circuit ruled on this matter, there were decisions from other districts in the Ninth Circuit that agreed with Judge Kane, but those decisions would no longer be controlling in the Ninth Circuit, since we have a decision from the Ninth Circuit on this issue now. The counter argument to Judge Kane, as ably explained by the Ninth Circuit in Botosan v. Paul McNally Realty, 216 F.3d 827 (9th Cir. 2000), works like this. 42 U.S.C. § 12188 does say that the remedies and procedures set forth in section 42 U.S.C. § 2000a-3(a) are the remedies for violating title III of the ADA, but there is absolutely no mention anywhere of 42 U.S.C. § 2000a-3(c). Therefore, since a principle of statutory construction is what is not mentioned is excluded, it would not be proper to read 42 U.S.C. § 2000a-3(c) into the law. See Id. at 832; see also Moyer v. Showboat Casino Hotel 56 F. Supp. 2d 498, 501-502 (D.N.J. 1999); Love v. Omni Netherland Plaza Hotel, 2001 WL 1842450 (S.D. Ohio, May 10, 2001). Botosan also made mention of legislative history, the Code of Federal Regulations, and the Department of Justice’s technical assistance manual as also supporting the conclusion that title III actions do not require state notification. Botosan at 832.
Strategies: So what does this all mean? If you are representing a place of public accommodation, it might be worth a shot for strategic reasons to argue that a person has not exhausted administrative remedies. I am skeptical as to whether such an argument would succeed as the Ninth Circuit seems to be on solid ground with respect to its reasoning. Nevertheless, since one judge has adopted this position, making such a claim would not be a frivolous one unless, of course, you are in the Ninth Circuit. If you are a person with a disability or are representing one, it might make sense to file a claim with the Department of Justice anyway. After all, Department of Justice is a deep pocket with a lot of resources, and they could bring those resources to bear so as to even obtain damages to an individual, which would not otherwise be able to be obtained under title III typically. Nevertheless, unless Judge Kane’s view becomes widely accepted, the plaintiff is under no obligation to exhaust administrative remedies first. What about the future for this case. I would be surprised if the plaintiff in this case does not appeal since statutory construction and the weight of authority are on their side. It will be very interesting following how this case develops.