Carmi v. Metropolitan St. Louis Sewer District

McMILLIAN, Circuit Judge,

concurring.

I join in Judge Lay’s opinion except part I. I do not think we need to address the difficult issue of whether §§ 504 and 505 of the Rehabilitation Act,1 29 U.S.C. §§ 794, *677794a(a)(2) cover employment practices of recipients of federal grants. The district court determined that appellant was not an “otherwise qualified handicapped individual” who suffered discrimination “solely by reason of his handicap,” 29 U.S.C. § 794, and in my view that finding was not clearly erroneous. Therefore appellant cannot prevail even if the Act is applicable to discrimination in employment by recipients of federal grants. See Southeastern Community College v. Davis, 442 U.S. 397, 404-405 n.5, 99 S.Ct. 2361, 2366 n.5, 60 L.Ed.2d 980 (1979).

In view of the majority’s approach, however, I must express some reservations about the holding in part I of the majority opinion. Guaranteeing equal opportunity is one of the express purposes of the Rehabilitation Act. 29 U.S.C. § 701 (1978).2 The statute is a remedial measure, and I would follow the familiar maxim that remedial statutes are to be construed broadly to accomplish their purpose. In my view, it follows that general language of § 504 of the Rehabilitation Act prohibiting “discrimination under any program or activity receiving Federal financial assistance” applies broadly to employment discrimination. 29 U.S.C. § 794. The Rehabilitation Act therefore imposes a general requirement upon recipients of federal grants not to discriminate against employees.3 As the legislative history of the 1974 Amendments to the Rehabilitation Act4 explained, “Implementation of section 504 would ... include pre-grant analysis of recipients to ensure that Federal Funds are not initially provided to those who discriminate against handicapped individuals.” S.Rep. 93-1297, [1974] U.S.Code Cong. & Admin.News, pp. 6373, 6390-91.

*678As originally enacted in 1973, § 504 of the Rehabilitation Act simply prohibited handicap-based discrimination by recipients of federal grants. 29 U.S.C. § 794. The 1978 Amendments to the Rehabilitation Act added § 505 which provides that “remedies, procedures, and rights” available under Title VI of the Civil Rights Act of 19645 are also available to a “person aggrieved” by handicap-based discrimination of federal grant recipients. 29 U.S.C. § 794a(a)(2). See note 1 supra. The majority holds that § 505 of the Rehabilitation Act thereby incorporates § 604 of Title VI, 42 U.S.C. § 2000d-3, which provides:

Nothing in this subchapter shall be construed to authorize action under this sub-chapter by any department or agency with respect to any employment practice of any employer, employment agency, or labor organization except where a primary objective of the Federal assistance is to provide employment.

However, § 604 of Title VI applies on its face only to agency action and says nothing at all about the remedies, procedures or rights available to persons aggrieved. Section 505 of the Rehabilitation Act refers to Title VI only insofar as it applies to “a person aggrieved.” 29 U.S.C. § 794a(a)(2). Therefore the language of the Rehabilita-

tion Act does not incorporate the language of § 604.6

Nevertheless, the majority suggests that § 604 should be interpreted to preclude most individual as well as agency actions challenging employment discrimination. This interpretation of Title VI seems correct to me, in view of the overall statutory scheme of the Civil Rights Act of 1964,7 of which Title VI was a part. But this interpretation cannot be supported under the Rehabilitation Act.

In the Civil Rights Act of 1964, Congress simultaneously provided Title VI covering recipients of federal grants and Title VII8 covering employers whether or not such employers are recipients of federal grants. Although it is not inconceivable that Congress would have provided overlapping remedies in the same statute, the overall statutory program would seem to suggest that Congress intended Title VII to be the main vehicle for combatting employment discrimination based on race, religion, sex or national origin.9 This overall program would be furthered by the majority’s interpretation of Title VI to cover employment discrimination only when the employee was an intended beneficiary of federal funds10 or *679when the discrimination affected the intended beneficiaries of federal funds (as discrimination in employing teachers may affect students). See United States v. Jefferson County Board of Education, 372 F.2d 836, 881-86 (5th Cir. 1966), cert. denied, 389 U.S. 840, 88 S.Ct. 77, 19 L.Ed.2d 104 (1967). But see Cannon v. University of Chicago, 441 U.S. 677, 711-714 nn. 48-49, 99 S.Ct. 1946, 1964-1966 nn. 48, 49, 60 L.Ed.2d 560 (1979) (suggesting that restrictions on agency action under § 605 of Title VI may not apply to actions by individuals).

Even if § 604 is interpreted to restrict individual actions under Title VI, it does not follow that a similar restriction exists on individual actions under the Rehabilitation Act, which encompasses a different kind of statutory scheme than the Civil Rights Act of 1964. Congress did not in the Rehabilitation Act provide any general prohibition on handicap-based discrimination which would sweep as broadly as Title VII of the Civil Rights Act of 1964. Only handicap-based employment discrimination by the federal government is covered by provisions comparable to Title VII. 29 U.S.C. §§ 791, 794a(a)(l). As to handicap-based discrimination by private employers or state and local governments, coverage extends only on the basis of a contractual activity with or receipt of grants from the federal government. 29 U.S.C. §§ 793, 794, 794a(a)(2). Under this statutory scheme any coverage at all of handicap-based discrimination in employment depends upon the employer’s status as a federal contractor or federal grantee. To hold that the statute would not cover most employment discrimination by federal grant recipients therefore means that the statute provides no remedy at all for many victims of handicap-based discrimination in employment. Therefore, even if § 604 were read into the Rehabilitation Act, the overall statutory scheme would not be furthered by extending § 604’s literal restriction on agency action to restrict individual action.11 In the *680Civil Rights Act of 1964, the restriction of individual actions under Title VI merely means that individuals must proceed under Title VII against employment discrimination based on race, national origin, or religion. Under the Rehabilitation Act, restriction of individual actions under § 794a(a)(2) would deny any remedy at all to many victims of discrimination.

Because the literal words of the statute do not require restricting the coverage of the Rehabilitation Act in this way, I would not do so in the absence of clear legislative intent. In any case, my reading of the legislative history of the Rehabilitation Act provisions in question suggests that Congress sought to expand, not limit, remedies available to victims of handicap-based discrimination. See Hart v. Alameda County Probation Department, 21 FEP Cases (BNA) 233, 238 (N.D.Cal.1979). As noted above, an express purpose of the Rehabilitation Act was to provide equal employment opportunities for handicapped individuals, 29 U.S.C. § 701 (1978).

Accordingly, I would hold that the Rehabilitation Act imposes a requirement that entities receiving federal grants refrain from discriminating against their employees on the basis of handicap.

. Section 504 of the Rehabilitation Act of 1973 provides:

No otherwise qualified handicapped individual in the United States . . shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

Pub.L. 93-112, 87 Stat. 355, 394 (1973), codified as 29 U.S.C. § 794. In 1978, a new § 505 was added to provide in part:

The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under [29 U.S.C. §] 794 *677Pub.L. 95-602, 92 Stat. 2955, 2983 (1978), codified as 29 U.S.C. § 794a(a)(2).

. An express purpose of the Rehabilitation Act of 1973 was to “expand employment opportunities in the public and private sectors for handicapped individuals,” 29 U.S.C. § 701(8) (repealed 1978). The declaration of purpose was amended in 1978 to make it more concise. See H. R. Rep. No. 95-1149 at 41, [1978] U.S.Code Cong. & Admin.News, pp. 7312, 7352. See also H. R. Conf. Rep. No. 95-1780 at 101, [1978] U.S.Code Cong. & Admin.News, pp. 7375, 7412-13. Expansion of employment opportunities was one of eleven enumerated purposes in the 1973 Act; after the 1978 amendments the guarantee of equal opportunity generally was one of the specific aims of the Act.

. The Environmental Protection Agency (from which appellee received its grant) prohibits grantees from discriminating against employees generally on the basis of race, sex, national origin and religion. See 40 C.F.R. § 30.410-(1) (1979) (requiring grantees to adhere to the requirements of Executive Order 11246, as amended, 40 C.F.R. part 8). Although the EPA does not seem to have issued regulations concerning handicap-based discrimination by grantees, I see no reason for assuming that EPA would adopt a more narrow approach than for discrimination by grantees on the basis of race, national origin or religion. See 29 U.S.C. § 794a(a)(2). Under the mandate of § 2 of Executive Order 11914 (1976), 45 C.F.R. at 399, 400 (1979) (implementing the Rehabilitation Act), EPA is required to issue regulations prohibiting handicap-based discrimination, consistent with regulations issued by the Department of Health, Education and Welfare. The HEW regulations generally cover employment discrimination by recipients of federal grants. 45 C.F.R. §§ 85.52-85.55 (1979). See note 6 infra.

. The Rehabilitation Act, as originally enacted in 1973, contained only a single section on federal grants, § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. See note 1 supra. The 1974 legislative history specifies that § 504 of the 1973 Act, 29 U.S.C. § 794, was modelled after § 601 of Title VI, not all of Title VI. S.Rep. No. 93-1297, [1974] U.S.Code Cong. & Admin.News, pp. 6373, 6390. It therefore does not indicate that § 604 of Title VI was incorporated into the Rehabilitation Act. (§ 604, not § 601, of Title VI restricts coverage of employment discrimination.) Although the language of § 504 is similar to § 601 of Title VI, 42 U.S.C. § 2000d, the 1973 Act contained no provision similar to § 604 of Title VI, 42 U.S.C. § 2000d-3.

In 1974, Congress amended parts of the 1973 Rehabilitation Act, but not § 504. Therefore, I do not regard the 1974 legislative history as determinative of the meaning of § 504 of the 1973 Act or, of course, § 505 of the 1978 Act. See Southeastern Community College v. Davis, supra, 442 U.S. at 411-12 n.11, 99 S.Ct. at 2369, 2370 n.11; Teamsters v. United States, 431 U.S. 324, 354 n.39, 97 S.Ct. 1843, 1864 n.39, 52 L.Ed.2d 396 (1977). However, both the majority and I give the 1974 legislative history some weight, although we disagree as to its significance. See at 674-675 and n.5.

. 42 U.S.C. § 2000d et seq.

. The legislative history of § 505 supports this conclusion. Section 505 was part of the 1978 Amendments to the Rehabilitation Act, and was taken from Senate Bill S. 2600, 95th Cong. 2d Sess. The Committee Report on S. 2600 explained,

It is the committee’s understanding that the regulations promulgated by the Department of Health, Education, and Welfare with respect to procedures, remedies, and rights under section 504 [29 U.S.C. § 794] conform with those promulgated under Title VI. Thus, this amendment codifies existing practice as a specific statutory requirement.

S.Rep. No. 95-890 (1978) at 19. This report suggests that § 505 is consistent with HEW’s regulations, which apply to employment practices generally of grant recipients. See 45 C.F.R. §§ 85.52-85.55 (1979). However, the Supreme Court, without mentioning this legislative history, has suggested that the HEW regulations may not be entitled to great deference because of delays in assertion of regulatory authority under the 1973 Act. Southeastern Community College v. Davis, supra, 442 U.S. at 411, 412 n.ll, 99 S.Ct. at 2369, 2370 n.ll.

. Pub.L. 88-352, 78 Stat. 241 (1964).

. 42 U.S.C. § 2000e et seq.

. The EPA requires that grantees also follow the requirements of the federal contract compliance program prohibiting discrimination in employment on the basis of race, sex, religion, or national origin. See note 3 supra. It is unclear whether this regulation seeks to implement Title VI or rests on executive authority to prohibit discrimination. Cf. Contractors Ass’n v. Secretary of Labor, 442 F.2d 159, 166-71 (3d Cir.), cert. denied, 404 U.S. 854, 92 S.Ct. 98, 30 L.Ed.2d 95 (1971) (affirmative action requirements for federal contractors under executive authority).

. In my view, it is no simple question whether a particular employee is an intended beneficiary of federal funds for purposes of applying Title VI to employment. A public works program, for example, may have a number of pur*679poses, including the purpose of increasing the overall amount of resources available to the recipient. By funding one necessary project, the public works program may be intended to free up for other uses resources that would have been set aside for that project. The intended beneficiaries of federal funds may well include employees other than those working directly on the federally assisted project. I therefore cannot agree with the majority’s rather summary finding that appellant was not an intended beneficiary of the grants received by appellee. In my view, resolution of this threshold question would involve consideration of such factors as the legislative intent in establishing the grant program, and the specific facts surrounding a particular grant.

. As the majority points out, we have incorporated the restriction of § 604 of Title VI into Title IX of the Education Act Amendments of 1972, 20 U.S.C. § 1681 et seq. See at 675 n.6. We have accordingly restricted coverage of employment discrimination under Title IX. (Title VI prohibits discrimination based on race, national origin and religion, but not sex. Title IX was enacted in part to fill this gap in Title VI.)

Paralleling language of Title VI, Title IX prohibits discrimination based on sex in educational programs receiving federal funds, but Title IX does not contain specific language restricting coverage of employment discrimination as § 604 of Title VI does. Nevertheless, courts have read into Title IX a restriction on coverage of employment discrimination, because Ti-tie IX was proposed as part of a single measure that contained other provisions extending coverage under other laws of employment discrimination based on sex. The overall statutory scheme of Title IX thus suggests that Congress intended for employment discrimination to be covered under other Acts, including Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Equal Pay Act of 1963, 29 U.S.C. §§ 206(d), 213(a). See Islesboro School Commission v. Caiifano, 593 F.2d 424, 426-29 (1st Cir.), cert. denied, 444 U.S. 972, 100 S.Ct. 467, 62 L.Ed.2d 388 (1979). We adopted the reasoning of that case in Junior College Dist. v. Caiifano, 597 F.2d 119, 121 (8th Cir.), cert. denied,-U.S.-, 100 S.Ct. 467, 62 L.Ed.2d 388 (1979).

By contrast, an express purpose of the Rehabilitation Act of 1973 was to “expand employment opportunities in the public and private sectors for handicapped individuals.” 29 U.S.C. § 701(8). See note 2 supra. As enacted in 1973, the Rehabilitation Act, like Title IX, included language similar to Title VI, but did not include the restriction on coverage of employment discrimination. Unlike Title IX, however, the statutory program of the Rehabilitation Act did not include other provisions for combatting employment discrimination against the handicapped by recipients of federal grants. The reasoning of the Islesboro School Commission case therefore does not apply. On the contrary, the absence of a restriction on agency action suggests that Congress intended § 794 to cover employment.