Professional Licensing Issues: Title II of the ADA

applied to State and Local Professional Licensing

∗
Lauren E. Chanatry

July 2007

Prepared for:

Shelley Kaplan, Director

DBTAC: Southeast Center on the Americans with Disabilities Act
http://www.sedbtac.org/


Ms. Chanatry is a 2009 Juris Doctor candidate at the Syracuse University (SU) College of Law, working
under the direction of William N. Myhill, M.Ed., J.D., Senior Research Associate at the Burton Blatt
Institute (BBI) and Adjunct Professor of Law at SU; 900 S. Crouse Ave., Crouse-Hinds Hall, Suite 300,
Syracuse, New York 13244; email – wmyhill@syr.edu; phone – (315) 443-1367. For additional
information on related law and policy issues, see http://bbi.syr.edu.

1
 I. Introduction

The Americans with Disabilities Act (ADA), signed into law on July 26, 1990
by President George H.W. Bush, is the most comprehensive civil rights statute aimed at
eliminating discrimination against persons with physical or mental impairments.1 The
ADA prohibits discrimination on the basis of disability in employment, transportation,
and telecommunications. The Act also prohibits such discrimination by State and Local
governments, and by public accommodations and other commercial facilities.2 At
signing, President Bush stated that the ADA would signal the end of unjustified
segregation and exclusion of persons with disabilities from the mainstream of American
life.3

Discrimination by state governments regulating entry into and membership in

licensed professions falls under ADA Title II. Title II provides that “no qualified
individual with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits, services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity.”4 It further requires state
and local government agencies to operate programs so that they are “readily accessible
to and usable by individuals with disabilities.”5

II. State Licensing Boards and the ADA

Licensing boards are authorized by state governments to control who may

practice in a particular professional field. Consequently, these entities are charged with
a duty to protect the public.6 Common boards are the state bar (law) and state medical
boards (medicine). Other licensing boards regulate teaching, pharmacy, nursing, and
other professions. Courts have concluded that licensing boards are Title II entities
subject to the ADA because they are empowered by state governments to provide
benefits, services, and programs.7 For instance, in Bartlett v. New York State Board of
Bar Examiners (2nd Circuit), the board denied an applicant’s request for testing
accommodations, such as extended time and alternative ways to answer questions.8
Bartlett filed suit after failing the test several times.9 The court concluded that if the

1
42 U.S.C. § 12180 (2000); Signing Statement, President Bush on the ADA, July 26, 1990, available at
http://www.presidency.ucsb.edu/ws/print.php?pid=18712
2
42 U.S.C. § 12112
3
Signing Statement, President Bush on the ADA, supra note 1.
4
42 U.S.C. § 12132
5
42 U.S.C. §12148(a)(1).
6
See e.g., N.C. GEN. STAT. §87-42 (2006) (electrical contracting); ARK. CODE ANN. § 17-103-102 (2007)
(social work); COLO. REV. STAT. ANN. §12-36-201(1) (2007) (medicine).
7
See, e.g., Theriault v. Flynn, 162 F.3d 46 (1st Cir. 1998); Burke v. State Bar of Cal., No. C 06-06950
WHA , 2007 WL 39397 (N.D. Cal., Jan. 4, 2007).
8
226 F.3d 69 (2d Cir. 2000). “Bartlett sought unlimited or extended time to take the test and permission
to tape record her essays and to circle her multiple choice answers in the test booklet rather than
completing the answer sheet.” Id. at 75.
9
Id.

2
applicant had a disability, she was entitled to the requested accommodations because
the Board was subject to Title II of the ADA.10

On remand, the district court for the Southern District of New York concluded
that the “plaintiff [was] substantially limited in the major life activity of reading…by
her slow reading rate and by the fatigue caused by her inability to read with
automaticity.”11 In the alternative, the court concluded the “plaintiff [was] substantially
limited in the major life activity of working because the Board’s failure to
accommodate her reading impairment was a substantial factor contributing to her
failure to pass the bar.”12 Accordingly, the court found the plaintiff was entitled to
reasonable accommodations when taking the New York State Bar Examination.13

A 1995 Department of Justice settlement granted testing accommodations to

qualified individual with disabilities. A plumber with dyslexia filed a complaint against
the Rockland County Board of Plumbing, Heating and Cooling Examiners, alleging
Title II discrimination for refusing to provide accommodations to the written portion of
the county’s plumber licensing exam.14 The individual had previously demonstrated
forty-two years of competency as a plumber and businessperson.15 The settlement
agreement required the Board to accommodate the plumber by providing a reader or an
oral exam, and to adopt a policy of nondiscrimination subject to DOJ approval.16

Other cases against licensing boards alleging Title II discrimination have turned
on the content of application questions. In Ellen S. v. Florida Board of Bar Examiners,
an applicant for admission to the bar sued the Florida Board claiming that application
questions pertaining to an emotional disorder violated the ADA.17 The district court for
the Southern District of Florida held that a defendant need not have knowledge of the
plaintiff’s disability in order to violate the ADA.18 The court further held that
questioning the applicant as to whether she had ever sought treatment for a nervous,
mental, or emotional disorder or had been diagnosed as having such a condition
violated Title II.19

Similarly, in Clark v. Virginia Board of Bar Examiners, a federal district court

held that a Virginia bar application question, asking whether an applicant had been
treated for mental illness or had obtained counseling in the past five years, violated the
ADA.20 The district court for the Eastern District of Virginia decided that, absent a
10
Id. at 86.
11
Bartlett v. N.Y. State Bd. of Law Exam’rs, No. 93 CIV. 4986(SS), 2001 WL 930792, at *3 (S.D.N.Y.,
Aug. 15, 2001).
12
Id.
13
Id.
14
Department of Justice, Enforcing the ADA: A Status Report from the Department of Justice (Apr.-Sep.,
1995), available at http://www.usdoj.gov/crt/ada/pubs/sep95.txt
15
Id.
16
Id.
17
859 F.Supp. 1489 (S.D. Fla., 1994).
18
Id. at 1491.
19
Id. at 1494.
20
880 F.Supp. 430, 433 (E.D. Va., 1995).

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showing the applicant would pose a direct threat to her clients, her failure to answer the
open-ended mental health inquiry did not prevent her from becoming a member of the
bar.21

Title II, however, has not consistently protected persons with disabilities
seeking membership in board-regulated professions. In Applicants v. Texas State Board
of Law Examiners, the bar application asked the following two-part question:

a) Within the last ten years, have you been diagnosed with or have you been
treated for bi-polar disorder, schizophrenia, paranoia, or any other psychotic
disorder?

b) Have you, since attaining the age of eighteen or within the last ten years,
whichever period is shorter, been admitted to a hospital or other facility for the
treatment of bi-polar disorder, schizophrenia, paranoia, or any other psychotic
disorder?22

An affirmative answer to either part of this question required the applicant to provide a
detailed description of the diagnosis or treatment, and to identify and provide the
address of each individual who had treated the applicant.23 Answering affirmatively also
required an applicant to sign a limited authorization for release of mental health records
to those who had diagnosed or treated the applicant.24

The district court for the Western District of Texas upheld the question stating,
“[b]ipolar disorder, schizophrenia, paranoia, and psychotic disorders are serious mental
illnesses that may affect a person’s ability to practice law. People suffering from these
illnesses may suffer debilitating symptoms that inhibit their ability to function
normally.”25

Some courts have shown reluctance to make a decision on discriminatory

licensing issues. In Johnson v. State of Kansas,26 a Kansas bar applicant with chronic
bipolar affective disorder sued the Kansas Supreme Court for violations of the ADA
after it rejected his application. The federal district court for Kansas cited case law to
support the proposition that it lacked jurisdiction to review a denial of membership to
the bar.27 However, Johnson’s actual claim was a general challenge to allegedly
discriminatory policies, patterns or established practices in the application of Kansas bar
admission rules, rather than his specific rejection. By claiming it lacked jurisdiction, the
court avoided hearing the main issue of discrimination. This decision appears erroneous
because federal courts clearly have jurisdiction over ADA cases.28

21
Id. at 446.
22
No. A93 CA 740SS, 1994 WL 776693, at *2 (W.D. Tex. Oct. 11, 1994) (quoting question # 11).
23
Id.
24
Id.
25
Id. at *3.
26
888 F.Supp. 1073, (D. Kan. 1995).
27
Id. at 1079.
28
Kleiber v. Honda of America Mfg., Inc., No. 06-3490 (6th Cir. May 03, 2007).

4
 State medical boards may have a greater obligation to protect the public from
harm than State Bars. In Kirbens v. Wyoming State Board of Medicine, a physician
diagnosed with bipolar affective disorder, narcissistic personality disorder, and who
claimed his misconduct resulted from his disabilities, sought judicial review of the
revocation of his license by the Board of Medicine after a contested case hearing.29 The
Supreme Court of Wyoming held that a physician who poses a risk to the health or
safety of patients was not a “qualified individual” with a disability within the meaning
of the ADA. The Board therefore was not required to make an accommodation under
the ADA by either accepting his resignation, or by placing him in a state-sponsored
rehabilitation program (such as those authorized by state law for “doctors with an
alcohol or drug dependence issue.”)30 In 2003, the Wyoming legislature amended the
powers and duties of its state medical board to remove the requirement to assist doctors
“exhibit[ing] disruptive behaviors, substance dependence or … physical or mental
impairment” return to practice.31

III. Conclusion

Employers generally assume a candidate meets essential qualifications if board-

certified. Thus Title II litigation against state boards largely focuses on subjective
decisions boards make when balancing their duty to protect the public with the rights of
individuals seeking membership into the profession. Much of the law regarding
licensing has been settled since the mid-1990s,32 however, district courts continue to
interpret and clarify acceptable application questions. Boards may ask questions
concerning disabilities, although prudential concerns limit the scope of these questions.
For example, an impairment actually must limit the applicant’s ability to perform the
specific job.

Broad questions about mental illness are not allowed. To satisfy judicial
scrutiny, questions about mental illness must specifically address presently occurring
illness. A question probes too far into the past when the probative value of the question
to demonstrate current impairments is substantially reduced by the lapse of time.33 Also,
boards must be able to justify their questions as a reasonable measure to protect the
public. Successful questions often ask the applicant for a subjective answer to whether
their disability would affect their job.

29
992 P.2d 1056, 1060 (Wyo. 1999).
30
Id. at 1064.
31
Wyo. Stat. Ann. § 33-26-202(b)(xii) (1987), amended by 2003 Wyo. Sess. Laws Ch. 190 (Mar. 7,
2003).
32
Stanley S. Herr, Questioning the Questionnaires: Bar Admissions and Candidates with Disabilities, 42
VILL. L. REV. 635, 680 (1997).
33
See Mariam Alikhan, The ADA is Narrowing Mental Health Inquiries on Bar Applications: Looking to
the Medical Profession to Decide Where to go From Here, 14 GEO. J. LEGAL ETHICS 159, 163–67 (2000);
Herr, supra note 32, at 640–46.