CVS Pharmacy, Inc. v. Doe

This case would have presented the Court with the opportunity to decide if Section 504 of the Rehabilitation Act, incorporated into the Affordable Care Act, supports a disparate-impact standard to bring a claim of disability discrimination.

THE PLAIN TEXT OF SECTION 504

Petitioner CVS argues that Section 504 of the Rehabilitation Act, as incorporated into Section 1557 of the Affordable Care Act, does not allow for disparate impact claims, but only incorporates discriminatory intent claims. Brief for Petitioner at 13. According to CVS, disparate intent statutes tie statutory prohibitions to motive by requiring complainants to allege discriminatory motive or that the statute facially treats the people differently based on their membership to a protected class. Id. at 14. CVS contends that the plain language of Section 504 does not allow for disparate impact liability claim for three reasons. Id. First, CVS contends that Section 504 contains language that focuses on why the federal funders act, concentrating on discriminatory action. Id. Second, CVS argues the statute creates a sole causation standard, which requires a showing that the funder acted solely because of the person’s protected class. Id. at 17. CVS argues that such a standard is incompatible with disparate impact prohibition, and Congress has never tried to include a sole causation standard for a disparate impact claim. Id. Further, CVS claims that Courts have historically interpreted the sole causation standard to exclude disparate impact liability. Id. at 18–19. Third, CVS contends that the statutory language’s focus on individuals and not groups is evidence the statute targets discriminatory intent because disparate impact liability examines disproportionate burdens on groups. Id. at 21. CVS claims this distinction is crucial because disparate impact only requires the complainant to show a disproportionately adverse effect, even if the statute or entity does not mean to discriminate. Id. at 14.

CVS further contends Section 504 lacks the effects-based language that creates a disparate impact liability standard. Brief for Petitioner at 37. CVS argues that the language of disparate impact liability, such as “otherwise adversely affect,” “otherwise make unavailable,” “results in,” “'have the effect of,” or “tend to screen out” are not present in Section 504. Id. at 39–40.

Respondent Does respond by asserting that the statutory language of Section 504 does not focus on the actions of the wrong doers but on the adverse effects to those with disabilities. Brief for Respondent at 10. Does argue that both statutory sections grant protection against specific ill effects, including exclusion, denial of benefits, and discrimination. Id. at 11. Does claim the passive construction of the grammar in the statutes emphasizes the person who suffered the effects, with no reference to the wrongful actor. Id. According to Does, Section 504 is a result oriented statutes, not focusing on the intent of the federally funded programs. Id. at 13. Does also contend that CVS’s approach to the restrictive reading of the statute defies “multiple canons of construction” in multiple ways. Id. at 14. First, Does argue that CVS violates the principle of supplying words to a statute that have been omitted when they effectively add “intentional” in front of discrimination. Id. Second, Does claims the word “discrimination” can be directed towards both intentional and unintentional actions. Id. Third, Does argue that CVS’s interpretation reads “excluded” and “denied” out of the statute, because exclusion and denial do not require anyone’s motives to be proved. Id. Finally, Does conclude that only protecting disabled people from intentional discrimination and not exclusionary practices falls short of the guarantees of the statute, which include eliminating discrimination continually encountered in health care and other settings. Id. at 14–15.

Moreover, Does claim that the historic use and reuse of the operative words by Congress in Section 504 have established a public meaning extending beyond intentional discrimination to exclusionary effects. Brief for Respondent at 23. Additionally, Does contend that the Rehabilitation Act was amended by Congress to clarify the definition of “handicap,” but Section 504 was not amended to include only intentional discrimination. Id. at 24. Does argue that the finalization of the regulation in 1977 reflected the scope that informed Congress in Title VI and the Department of Health, Education, and Welfare (“HEW”), where the discriminatory effects of the statute was emphasized. Id. at 24–25. According to Does, the HEW promulgated an interpretation of Section 504 that included disparate effects. Id. at 25.

SECTION 504’S RELATIONSHIP TO TITLE VI OF THE CIVIL RIGHTS ACT

CVS compares the language in Section 504 of the Rehabilitation Act to the language in Title VI of the Civil Rights Act and argues the language in the two statutes is nearly identical. Brief for Petitioner at 28. CVS contends that this is strong evidence that Section 504 does not provide for disparate effect claims because the Court has already held that Title VI does not provide for disparate effect claims. Id. at 29. Further, CVS cites the three other Spending Clause antidiscrimination statutes, Title VI, Title IX, and the Age Act, passed around the time of Section 504, which all bar disparate impact liability. Id. at 28.

Does contend that CVS’s reliance on Title VI is misplaced because the limitation to intentional discrimination was a product of constitutional considerations distinct from Section 504’s legislative history. Brief for Respondent at 26. Does argue that stare decisis bound the interpretation of Title VI to unconstitutional racial discrimination, which only includes intentional discrimination, because the purpose of Title VI was to limit racial discrimination. Id. at 27–28. According the Does, that is not applicable to Section 504 because the statute focuses on discrimination due to disability, not explicitly addressed in the Constitution. Id. at 28. Thus, Does argue that there is no basis to apply the Constitutional limits of Title VI on Section 504. Id. at 29.

PRIOR PRECEDENT

CVS argues that prior precedent, Alexander v. Choate (“Choate”) does not support holding that Section 504 allows for disparate effect claims. Brief for Petitioner at 24. CVS points out that in Alexander v. Choate, the Court “assume[d] without deciding” Section 504 provided for disparate effect claims. Id. CVS notes that many of the policy concerns identified in Choate, such as access to public transportation and architectural barriers, have been ameliorated by other federal statutes. Id. at 26. CVS also contends that the Americans with Disabilities Act of 1990 (ADA) imposed disparate impact liability because Section 504 did not. Id. at 34. CVS argues that applying disparate impact liability to Section 504 would create different standards of liability between Section 504 and the ADA for the same conduct. Id. at 37.

In response, Does argue that the context of the statutes reinforces their focus on exclusionary effects. Brief for Respondents at 15. Does contend that Choate directly applies because it acknowledged that disability discrimination is both invidious intent and thoughtlessness and indifference. Id. at 16. According to Does, text added to Section 504 after Choate supports a reading of effects-oriented language. Id. Does note that over twenty-four federal agencies have adopted the exclusionary effects reading of Section 504, which remain in force today. Brief for Respondents at 29-30. Additionally, Does argue that both the Supreme Court and the federal courts of appeal have interpreted Section 504 to reach practices that deny meaningful access. Id. at 31. Does claim that Congress has repeatedly signified their approval of an effects- focused reading of Section 504. Id. at 36. Does cite the Congressional amendment of Section 504 to include the entirety of a program receiving federal funding and another amendment in 1992 that did not negate the statute’s reach in denial of meaningful access. Id. at 36–37. Does also claim that at the enactment of the ADA, Congress used the operative language of Title II—which prohibits exclusion, denial of benefits, and discrimination of anyone with a disability—in Section 504. Id. at 37–38. Does conclude that such operative language was also adopted in Section 1557, to give the meaningful access standard to the statute. Id. at 39­–40.