IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 83,264
RICHARD J. SCHALL,
Appellant,
v.
WICHITA STATE UNIVERSITY,
Appellee.
SYLLABUS BY THE COURT
1. Immunity from suit is a fundamental aspect of the sovereignty which the states enjoy except as altered by certain constitutional amendments.
2. The powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting states to private suits for damages in state courts.
3. A state's immunity may still be waived or abrogated by Congress when legislation is passed pursuant to its power under § 5 of the Fourteenth Amendment of the United States Constitution.
4. Courts have set forth three ways that state immunity may be relinquished: (1) where the state has consented to suit; (2) where the application of Ex parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908), and its progeny is appropriate; or (3) where Congress has abrogated the state's immunity.
5. The United States Supreme Court set forth a two-part test to determine whether Congress has abrogated a state's immunity when enacting legislation. First, Congress must unequivocally express its intent to abrogate the immunity, and, second, Congress must act pursuant to a valid exercise of its power in abrogating the immunity.
6. The United States Supreme Court has developed a test for determining whether legislation was properly enacted pursuant to Congress' power under § 5 of the Fourteenth Amendment to the United States Constitution: (1) whether the statute may be regarded as an enactment to enforce the Equal Protection Clause; (2) whether it is plainly adapted to that end; and (3) whether it is not prohibited by, but is consistent with, the letter and spirit of the Constitution.
7. The remedial purposes of the Americans with Disabilities Act (ADA) are tailored to remedy and prevent discriminatory conduct, and are thus congruent and proportional to the injury to be prevented or remedied. The Act only prohibits discrimination against "qualified individuals," and it requires only "reasonable accommodations" that do not impose "an undue burden" on the employer.
8. To establish a prima facie case of employment discrimination under the ADA, a plaintiff must demonstrate: (1) that he or she is a disabled person within the meaning of the ADA, (2) that he or she is qualified, that is, able to perform the essential functions of the job, with or without reasonable accommodations; and (3) that the employer terminated the plaintiff under circumstances which give rise to an inference that the termination was based on his or her disability. The worker has the burden to prove that he or she has a disability and that he or she is a qualified individual under the Act.
9. The federal courts have adopted a two-step inquiry to analyze whether a plaintiff in an employment discrimination case is "qualified" under the ADA: First, the court must determine whether the individual could perform the essential functions of the job, i.e., functions that bear more than a marginal relationship to the job at issue. Second, if (but only if) the court concludes that the individual is not able to perform the essential functions of the job, it must determine whether any reasonable accommodation by the employer would enable the individual to perform those functions.
10. A job function may be considered essential for any of several reasons, including but not limited to the following: (1) The function may be essential because the reason the position exists is to perform that function; (2) the function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or (3) the function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.
11. A worker bears the burden to prove that he or she could perform the essential functions of the job with reasonable accommodation in order to establish a case under the ADA.
12. In consideration of a case under the ADA, employers do not have to give an employee a "reasonable accommodation" that would cause an "undue hardship on the employer." The employer bears the burden of persuasion on whether a proposed accommodation would impose an undue hardship. The factors to be considered in determining whether an accommodation would cause an employer undue hardship are, among others: the nature and cost of the accommodation; the number of persons employed by the company; the financial resources of the company; and the impact of the accommodation upon the operation of the company.
13. The ADA does not require an employer to create a new position or even modify an essential function of an existing position in order to accommodate a disabled worker. An employer is not required to reallocate job duties to change the essential functions of a job. An accommodation which results in other employees having to work longer hours or to work harder in the same time is not required.
14. The Eleventh Amendment bars Family Medical Leave Act (FMLA) claims against the states in federal courts, because the means employed in FMLA are not congruous or proportional to the goals of achieving equal treatment in the workplace and therefore Congress failed to abrogate states' immunity in enacting FMLA. The same reasoning applies to FMLA actions brought in state courts.
15. The Kansas Judicial Review and Civil Enforcement of Agency Actions Act (KJRA) applies to all agencies and all proceedings for judicial review and civil enforcement of agency actions not specifically exempted by statute from the provisions of this Act. K.S.A. 77-603(a). In accordance with K.S.A. 77-603, the KJRA establishes the exclusive means of judicial review of agency action. The KJRA allows the district court to award monetary damages to the extent expressly allowed by law as well as any other appropriate relief, whether mandatory, injunctive, or declaratory; preliminary or final; temporary or permanent; equitable or legal. K.S.A. 77-622.
Appeal from Sedgwick district court; KARL W. FRIEDEL, judge. Opinion filed June 9, 2000. Affirmed.
Sean M. Dwyer, of Law Office of Sean M. Dwyer, of Wichita, argued the cause and was on the brief for appellant.
Wm. Scott Hesse, assistant attorney general, argued the cause, and Carla J. Stovall, attorney general, was with him on the brief for appellee.
The opinion of the court was delivered by
ABBOTT, J.: The trial court granted summary judgment to the defendant, Wichita State University (WSU), and against the plaintiff, Richard J. Schall, in an action against WSU, alleging breach of contract as well as claims made pursuant to the Family Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). Schall served as the clinical supervisor/coordinator for the Physicians Assistant Department (PAD) at WSU from August 1993, until he was terminated in February 1997, as a result of chronic pain secondary to cervical disc disease. Plaintiff's appeal was transferred to this court pursuant to K.S.A. 20-3018(c).
Schall was hired as a full-time salaried, exempt, clinical supervisor/coordinator for the PAD at WSU in August 1993. Marvis Lary, Ph.D., was Schall's direct supervisor during the entire time he was employed by WSU. Schall was the only clinical supervisor for the PAD at WSU. Schall's job duties required that he
" IDENTIFY CLINICAL ROTATION SITES IN AREAS OF NEED
SERVE AS DEPARTMENT LIAISON TO CLINICAL PRECEPTORS
IMPLEMENT ALL CORRESPONDENCE TO PRECEPTORS
SCHEDULING
CONFIRMATION LETTERS
STUDENT EVALUATION FORMS
LEARNING OBJECTIVES
PLAN ROTATION SCHEDULE FOR STUDENTS
MAKE CLINICAL SITE VISITS
PROCTOR SENIOR CASE PRESENTATIONS
SERVE AS ADVISOR ON SENIOR RESEARCH PAPERS
PLAN AND IMPLEMENT ANNUAL JOB FAIR
IMPLEMENT SENIOR REVIEW WEEKS I & II
MAINTAIN CURRENT AFFILIATION AGREEMENTS ON ALL PRECEPTOR PHYSICIANS AND MEDICAL FACILITIES
OVERSEE FIELD COORDINATOR PROJECT
[GIVE] STUDENT EVALUATIONS & GRADES
[SERVE AS] EDITOR OF DEPARTMENT JOB LISTINGS"
There is no other position like the clinical supervisor/coordinator for the PAD in Kansas. The supervisory position is dissimilar from regular faculty positions as it required significant travel to various sites around Kansas, especially to rural areas. Schall's employment was governed by WSU's unclassified professional personnel policy and procedures.
Schall visited with his physician, Dr. Robert Sweet, on April 12, 1996, after he began experiencing pain in his back, neck, shoulder, and arm. On June 20, 1996, Schall had a diskectomy of the C5-C6, C6-C7, and fusion at that level. Schall was off work for 3 weeks following the surgery. Although Schall continued to have pain, he continued to work after the surgery. Schall had difficulty typing and took Percocet to alleviate the pain.
On September 12, 1996, Schall consulted Dr. Eustaquio O. Abay about his severe pain. After the September 12 consultation, Schall worked sporadically but did not work full-time. Schall was unable to drive for more than 30 minutes outside Wichita to make site visits with senior students as required by his job. Schall continued to have difficulty typing long documents because of the pain.
On October 16, 1996, Dr. Abay performed a decompressive laminectomy, C6-C7, with a foraminotomy of the C7 roots bilaterally, "sitting position" surgery on Schall. Schall's hospital stay was 7 or 8 days. Other faculty attempted to fill in for Schall while he was recovering from surgery. Schall worked on November 18, 19, and December 10, 1996. Schall never worked again, other than those days after his October 16 surgery. On November 26, 1996, Dr. Abay released Schall to return to work. Schall never gave the work release to Lary.
On December 5, 1996, Dr. Sweet wrote a letter to Frankie M. Brown, Assistant Director of Human Resources at WSU, requesting that Schall be granted a medical leave of absence, which was granted.
On January 9, 1997, Lary wrote Schall and requested that he return to work full time on or before February 3, 1997. Schall did not return to work on February 3. On February 3, 1997, Lary wrote Schall another letter and gave Schall a deadline to return to work full time on February 10, 1997. Schall instead requested that he be allowed to return to work on a part-time basis, working approximately 20 to 30 hours per week for 6 to 8 weeks and then full time thereafter. Lary informed the PAD of Schall's proposal to work on a part-time basis. On February 11, 1997, the four other PAD faculty members wrote Lary a letter expressing their concern about Schall's request to work part time. The members described the PAD as "dysfunctional" as a result of Schall's failure to perform his job duties. The members told Lary that they were unable to keep up with their own workload as they had to assume some of the job responsibilities that Schall had not been able to complete. The members further expressed an opinion that Schall would not be able to adequately satisfy the requirements of his job if he were to work part time.
On February 12, 1997, Lary sent Schall a letter immediately terminating his employment. Lary was concerned that Schall would no longer be able to provide the attention necessary to adequately supervise the PAD and that the quality of the education of the senior students was at risk as was the next year's class placements.
Schall filed an internal grievance following his termination. After hearing from Schall and Lary, the grievance committee recommended that "Schall should be paid part-time wages from February 14, 1997 through June 30, 1997," which is the end of the contract period at WSU. Schall appealed to the Senate Grievance Review Committee, which recommended that "Schall receive a maximum amount of one month's salary, computed at his most recent pay level, plus a dollar amount equal to 6 months of his personal health insurance premium." WSU President Eugene Hughes adopted the recommendation of the Senate Grievance Review Committee's decision. In his written decision, President Hughes did not state which agency officer was to receive service of a petition for judicial review on behalf of the agency. Schall has never received any money from WSU.
I. IMMUNITY
Because WSU is an arm of the State, WSU argues that the Eleventh Amendment to the United States Constitution provides immunity on both the ADA and FMLA claims. The Eleventh Amendment reads: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the Unites States by citizens of another State, or by Citizens or Subjects of any Foreign State."
Historically, courts have held that the Eleventh Amendment does not apply to suits brought in state courts. The United States Supreme Court in Hilton v. South Carolina Public Railways Commission, 502 U.S. 197, 116 L. Ed. 2d 560, 112 S. Ct. 560 (1991), considered this issue after a plaintiff had brought a Federal Employers Liability Act (FELA) claim in state court against the defendant after being injured as a result of the defendant's negligence. In reversing the South Carolina Supreme Court, the Hilton Court noted that the Supreme Court has stated "on many occasions" that the Eleventh Amendment does not apply to actions brought in state courts. 502 U.S. at 204-05.
This court, in Americare Properties, Inc. v. Whiteman, 257 Kan. 30, 891 P.2d 336 (1995), also addressed the issue of Eleventh Amendment immunity in state courts when we considered a 42 U.S.C. § 1983 claim brought by the plaintiff. We held that the Eleventh Amendment prohibits suits against sovereign states in federal court but that it had no application to suits brought in state court. 257 Kan. at 51. See also Gumbhir v. Kansas State Board of Pharmacy, 231 Kan. 507, 513, 646 P.2d 1078 (1982) (the Eleventh Amendment does not apply to suits brought in state courts).
Other courts have similarly held. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 63-64, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989) (holding that the Eleventh Amendment does not apply to state courts); Maine v. Thiboutot, 448 U.S. 1, 9 n. 7, 65 L. Ed. 2d 555, 100 S. Ct. 2502 (1980) (actions brought in state courts do not present an Eleventh Amendment problem as the Amendment only applies to federal courts); McGregor v. Goord, 180 Misc. 2d 945, 947, 691 N.Y. S. 2d 875 (1999) (holding that the Eleventh Amendment does not provide immunity for a state when an action is brought in state court, thereby allowing the court to consider the plaintiff's FMLA claim); Ahern v. State of New York, 244 App. Div. 2d 7, 11, 676 N.Y.S. 2d 232 (1998) (quoting Hilton and holding that the Eleventh Amendment does not apply to actions in state courts); Whittington v. State Dept. of Public Safety, 126 N.M. 21, 23, 966 P.2d 188 (1998) (quoting Hilton and holding that the Eleventh Amendment did not give the Department of Public Safety immunity from suit in state court); Bunch v. Robinson, 122 Md. App. 437, 456, 712 A.2d 585 (1998) (referencing Will and holding that the trial court erred when it applied the Eleventh Amendment to the case as the action was brought in state court and not federal court); and Jacoby v. Arkansas Dep't of Education, 331 Ark. 508, 513, 962 S.W.2d 773 (1998) (holding that the Eleventh Amendment does not apply to actions brought in state courts as the Hilton Court "makes abundantly clear").
The United State Supreme Court in Alden v. Maine, 527 U.S. 706, 144 L. Ed. 2d 636, 119 S. Ct. 2240 (1999), however, recently allowed the State of Maine to assert immunity even though the action was brought in state court. In Alden, the plaintiffs, a group of probation officers, filed suit against the State of Maine, alleging that the State had violated the overtime provisions of the Fair Labor Standards Act (FLSA). The suit was originally brought in federal court, but when it was dismissed, it was re-filed in state court in Maine.
The suit was dismissed in state district court on the basis of sovereign immunity, which the Maine Supreme Judicial Court affirmed. Noting that the "Eleventh Amendment does not explicitly protect the states from suit in their own courts," the Maine Supreme Court concluded that the State was immune from suits of this nature as a result of its inherent sovereignty. Alden v. State, 715 A.2d 172, 174-75 (Me. 1998). Sovereignty, the court held, is reflected in the Eleventh Amendment but not controlled by it. 715 A.2d at 173-74.
The United States Supreme Court, writing through Justice Kennedy, noted that although the Eleventh Amendment provides immunity to the states when an action is brought in federal court, the immunity is not derived from the language of the Amendment but that the Amendment is a realization of a state's sovereignty that existed prior to the ratification of the Constitution. 527 U.S. at 713. The Alden Court stated:
"We have, as a result, sometimes referred to the States' immunity from suit as 'Eleventh Amendment immunity.' The phrase is convenient shorthand but something of a misnomer, for the sovereign immunity of the States neither derives from, nor is limited by, the terms of the Eleventh Amendment. Rather, as the Constitution's structure, its history, and the authoritative interpretations by this Court make clear, the States' immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today (either literally or by virtue of their admission into the Union upon an equal footing with the other States) except as altered by the plan of the Convention or certain constitutional Amendments." 527 U.S. at 713.
The Alden Court further noted that the Eleventh Amendment was a reaction to the decision in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 1 L. Ed. 440 (1793), and its purpose was not to define the states' immunity but to "restore the original constitutional design." 527 U.S. at 722. The Court then examined several cases that had been before it over the last two centuries and concluded:
"These holdings reflect a settled doctrinal understanding, consistent with the views of the leading advocates of the Constitution's ratification, that sovereign immunity derives not from the Eleventh Amendment but from the structure of the original Constitution itself. [Citations omitted.] The Eleventh Amendment confirmed, rather than established, sovereign immunity as a constitutional principle; it follows that the scope of the States' immunity from suit is demarcated not by the text of the [Eleventh] Amendment alone but by fundamental postulates implicit in the constitutional design." 527 U.S. at 728-29.
The Alden Court noted that in previous cases, such as Hilton and Will, it had suggested that the Eleventh Amendment did not apply in state courts because of the language of the Amendment, but distinguished those cases by stating that "the bare text of the Amendment is not an exhaustive description of the States' constitutional immunity from suit." 527 U.S. at 736.
In concluding, the Alden Court stated:
"In light of the language of the Constitution and the historical context, it is quite apparent why neither the ratification debates nor the language of the Eleventh Amendment addressed the States' immunity from suit in their own courts. The concerns voiced at the ratifying conventions, the furor raised by Chisholm, and the speed and unanimity with which the Amendment was adopted, moreover, underscore the jealous care with which the founding generation sought to preserve the sovereign immunity of the States. To read this history as permitting the inference that the Constitution stripped the States of immunity in their own courts and allowed Congress to subject them to suit there would turn on its head the concern of the founding generation--that Article III might be used to circumvent state-court immunity. In light of the historical record it is difficult to conceive that the Constitution would have been adopted if it had been understood to strip the States of immunity from suit in their own courts and cede to the Federal Government a power to subject nonconsenting States to private suits in these fora." 527 U.S. at 743.
The Alden Court therefore held that "the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting States to private suits for damages in state courts." 527 U.S. at 712.
Several state courts have addressed the issue of state immunity since Alden and held that a state has immunity from suit even when the action is brought in state court. See Bachmeier v. Hoffman, (2000 WL 313585) (Wyo. 2000) (noting that Alden reaffirmed that states have sovereign immunity in an action brought in state courts); Erickson v. Board of Governors for N.E. Ill. Univ., 207 F.3d 945, 952 (7th Cir. 2000) (noting that after Alden, states may "implement a blanket rule of sovereign immunity"); Commonwealth v. Luzik, 259 Va. 198, 208, 524 S.E.2d 871 (2000) (applying Alden and holding that the state has sovereign immunity from FLSA claims even when the claim is brought in state court); Lawson v. University of Tennessee, 2000 WL 116312 (Tenn. Ct. App. 2000) (holding that the state cannot be sued in an action pursuant to the FLSA even when the suit is brought in state court following the decision in Alden); Boise Cascade Corp. v. Board of Forestry, 164 Or. App. 114, 118-19, 991 P.2d 563 (1999) (referring to Alden and considering the defendant's immunity claims under the Eleventh Amendment); Whittington v. State, 128 N.M. 338, 992 P.2d 889 (1999) (vacating the earlier Whittington decision in light of Alden and holding that states enjoy immunity from FLSA lawsuits even when the suit is brought in state court); Jacoby v. Arkansas Dep't of Education, 338 Ark. 505, 506, 995 S.W.2d 353 (1999) (ordering a rebriefing on the issue of immunity following the decision in Alden); and Allen v. Fauver, 327 N.J. Super. 14, 18, 742 A.2d 594 (1999) (quoting Alden and holding that a state's immunity "flowed from the fundamental aspects of sovereignty enjoyed by the states before ratification of the United States Constitution").
Even though the Alden Court held that a state may assert its sovereign immunity when claims are brought against it in its own courts, the Alden Court emphasized that the state's immunity may still be waived or be abrogated by Congress when legislation is passed pursuant to its power under § 5 of the Fourteenth Amendment. The Alden Court stated:
"We have held also that in adopting the Fourteenth Amendment, the people required the States to surrender a portion of the sovereignty that had been preserved to them by the original Constitution, so that Congress may authorize private suits against nonconsenting States pursuant to its § 5 enforcement power. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). By imposing explicit limits on the powers of the States and granting Congress the power to enforce them, the Amendment 'fundamentally altered the balance of state and federal power struck by the Constitution.' Seminole Tribe, 517 U.S. at 59. When Congress enacts appropriate legislation to enforce this Amendment, see City of Boerne v. Flores, 521 U.S. 507 (1997), federal interests are paramount, and Congress may assert an authority over the States which would be otherwise unauthorized by the Constitution." 527 U.S. at 756.
Kansas has sovereign immunity from claims by individuals based on federal law even when they are brought in state court. Kansas' sovereign immunity may still be waived or be abrogated by Congress, however.
II. ADA CLAIM
Courts have set forth three ways that state immunity may be relinquished: (1) where the state has consented to suit; (2) where the application of Ex parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908), and its progeny is appropriate; or (3) where Congress has abrogated the state's immunity. Nelson v. Miller, 170 F.3d 641, 646 (6th Cir. 1999). Kansas has not consented to be sued on either the ADA or FMLA claims in this matter and Ex parte Young is not applicable.
The United States Supreme Court in Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 134 L. Ed. 2d 252, 116 S. Ct. 1114 (1996), set forth a two-part test to determine whether Congress has abrogated a state's immunity when enacting legislation. First, Congress must unequivocally express its intent to abrogate the immunity, and second, Congress must act pursuant to a valid exercise of its power in abrogating the immunity. 517 U.S. at 55.
Congress has unequivocally expressed its intent to abrogate the State's immunity under the ADA. 42 U.S.C. § 12202 (1994) of the ADA states: "A State shall not be immune under the eleventh amendment." The first prong of the Seminole Tribe test is, therefore, satisfied.
Congress acts pursuant to a valid exercise of power in abrogating the states' immunity if Congress enacts legislation pursuant to the enforcement clause of the Fourteenth Amendment. Seminole Tribe, 517 U.S. at 55. Congress' power to pass legislation pursuant to the Fourteenth Amendment is very broad. Katzenbach v. Morgan, 384 U.S. 641, 651, 16 L. Ed. 2d 828, 86 S. Ct. 1717 (1966). Congressional power under the Fourteenth Amendment is not unlimited, however. The Supreme Court retains the power to decree the substance of the Fourteenth Amendment's restrictions on the states, and Congress may not enlarge those rights. City of Boerne v. Flores, 521 U.S. 507, 524-25, 138 L. Ed. 2d 624, 117 S. Ct. 2157 (1997).
The question, therefore, becomes whether the ADA is a valid exercise of Congress' power under § 5 of the Fourteenth Amendment, thereby abrogating Kansas' sovereign immunity even in suits brought in its own courts.
The United States Supreme Court has developed a test for determining whether legislation was properly enacted pursuant to Congress' power under § 5 of the Fourteenth Amendment: (1) whether the statute may be regarded as an enactment to enforce the Equal Protection Clause; (2) whether it is plainly adapted to that end; and (3) whether it is not prohibited by, but is consistent with, the letter and spirit of the Constitution. Katzenbach, 384 U.S. at 651.
The ADA was enacted to enforce the Equal Protection Clause. 42 U.S.C. 12101(b)(4) (1994) sets forth that the purpose of the ADA was "to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment . . . in order to address the major areas of discrimination faced day-to-day by people with disabilities." The first prong of the Katzenbach test is satisfied by the ADA.
The ADA was also plainly adapted to enforce the Equal Protection Clause. Enforcement legislation must evidence a "congruence and proportionality" between the injury to be prevented or remedied and the means adapted to that end. City of Boerne, 521 U.S. at 520. The Fourteenth Amendment provides Congress authority to enact legislation if the court can perceive a basis upon which Congress might predicate a judgment that the state action "constituted an invidious discrimination in violation of the Equal Protection Clause." Katzenbach, 384 U.S. at 656. The disabled are protected against discrimination by the Equal Protection Clause. Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 450, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985). Congress has found that persons with disabilities suffer at the hands of discrimination. 42 U.S.C. § 12101(a). Congress set forth that
"(1) some 43,000,000 Americans have one or more physical or mental disabilities, and this number is increasing as the population as a whole is growing older;
"(2) historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem;
"(3) discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services;
"(4) unlike individuals who have experienced discrimination on the basis of race, color, sex, national origin, religion, or age, individuals who have experienced discrimination on the basis of disability have often had no legal recourse to redress such discrimination;
"(5) individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities;
"(6) census data, national polls, and other studies have documented that people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally;
"(7) individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on the characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society." 42 U.S.C. § 12101(a).
The provisions of the ADA are proportional to their remedi