A claim founded on disability discrimination may be pursued as a denial of equal protection of the law and pleaded under 42 U.S.C. § 1983 the Sixth Circuit ruled recently in Bullington v. Bedford County, Tennessee.
Kaleena Bullington worked for the county sheriff's department as a dispatcher for over 8 years but fell ill with Hodgkin's Lymphoma and the necessary chemotherapy had some debilitating side effects. She claimed that the county discriminated against her based on the disabilities caused by the cancer and related treatment.
Bullington pleaded a claim of disability discrimination under the Americans With Disabilities Act (ADA); she also pleaded that disability discrimination denied her equal protection of the laws guaranteed by the Fourteenth Amendment and made this claim under 42 U.S.C. § 1983.
The Sixth Circuit held that Bullington "may assert an Equal Protection claim for disability discrimination under § 1983."
Judge Moore authored the Sixth Circuit's opinion and was joined by Judge Clay. Judge Kethledge, a recent contender for a Supreme Court appointment, concurred stating that "nothing in the text or structure of the ADA supports preclusion of a parallel constitutional claim. ... reason enough to hold that such a claim is not precluded."
Understand that Bullington's Equal Protection claim for disability discrimination is an alternative to one made under the ADA but is not a good alternative for at least two reasons: (1) she would have to show that "there was no rational basis for the state action that treated her differently because of her disability," a proof requirement akin to showing that disability discrimination was the sole factor in the differential treatment as opposed to a substantial factor; and, (2) the state's duty to accommodate a disability under the Equal Protection clause is likely lesser than under the ADA.
Robert L. Abell
www.RobertAbellLaw.com
