The ADA Under Attorney General Sessions

By Shelby S. Skeabeck - Shawe Rosenthal LLP

January 11, 2018

Just before the holidays, Attorney General Jeff Sessions announced that the Department of Justice was rescinding 25 documents that the agency considered to be unnecessary, inconsistent with existing law, or otherwise improper. The DOJ’s press release, which includes quotes from Sessions regarding his decision to withdraw the guidance can be accessed here. Of note, he categorized the process agencies have been adopting in the digital age (especially under the Obama Administration) of publishing a letter or posting a webpage to signify a change in agency guidance to be an “abuse” of the regulatory process, as prescribed by Congress.

The rescinded guidance included many documents relating to the Americans with Disabilities Act, including:

• Common ADA Problems at Newly Constructed Lodging Facilities (November 1999).

• Title II Highlights (last updated 2008).

• Title III Highlights (last updated 2008).

• Commonly Asked Questions About Service Animals in Places of Business (July 1996).

• ADA Business Brief: Service Animals (April 2002).

• Common ADA Errors and Omissions in New Construction and Alterations (June 1997).

• Common Questions: Readily Achievable Barrier Removal and Design Details: Van Accessible Parking Spaces (August 1996).

• Americans with Disabilities Act Questions and Answers (May 2002) (co-authored by the EEOC)

• Statement of the Department of Justice on Application of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C. to State and Local Governments’ Employment Service Systems for Individuals with Disabilities (October 31, 2016).

• Myths and Facts About the Americans with Disabilities Act (1995)

Sessions rescinded the documents pursuant to Executive Order 13777 and his own memo issued in November of 2017.  Executive Order 13777, which requires federal agencies to review all existing regulations and make recommendations about the future of the regulation, including repealing or replacing it, was signed by President Trump shortly after he took office.  President Trump signed the EO as a part of his initiative to cut regulatory “red tape” for businesses in an effort to spur economic growth by tasking federal agencies to identify regulations that are job killers, no longer relevant, unnecessary, ineffective, or have costs that outweigh their benefits.

Although many of the guidance documents were withdrawn because the ADA and its implementing regulations have been revised since their issuance, we note that one of the documents was issued as recently as 2016 – the “Statement of the Department of Justice on Application of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C. to State and Local Governments’ Employment Service Systems for Individuals with Disabilities.” FYI, the Title II regulations require public entities to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” In Olmstead v. L.C., the Supreme Court held that Title II prohibits the unjustified segregation of individuals with disabilities. As reflected in the Statement, the Obama DOJ considered the enforcement of Olmstead to be a top priority, and the Statement was intended to affirm the DOJ’s commitment to this priority.

In a separate explanation, the current DOJ states that, “This action was taken to afford further discussion with relevant stakeholders, including public entities and the disability community, as to how best to provide technical assistance in this area.” But in the context of other actions taken by Attorney General Sessions – such as the DOJ’s change in position with regard to whether sexual orientation and gender identity are subject to the protections against sex discrimination under Title VII (the Trump DOJ now says they’re not, contrary to the Obama DOJ) – we wonder if this is a continuation of the retreat from some of the more aggressive discrimination protections that had been previously asserted by the Obama DOJ.

On its webpage, the DOJ states that will continue its review of technical assistance and guidance documents and will update the site with additional information, including what other documents it will withdraw.

We are fascinated by the head-spinning changes in direction in formal agency guidance documents that are being exhibited by some, but not all, of the federal agencies that regulate the workplace. For example, in December, the new NLRB General Counsel Peter Robb rescinded a number of General Counsel memos that were issued under the Obama Administration, including former General Counsel Richard Griffin’s General Counsel Memorandum on handbook rules. But as of now, the EEOC has not withdrawn any of its guidance, including those related to the ADA. It is likely that in the future, pursuant to EO13777, other agencies (which could include the EEOC) will announce the rescission of additional guidance documents, which could chart a new direction of enforcement priorities for those agencies.