Melinda ERICKSON, Plaintiff-Appellee, United States of America, Intervenor, v. BOARD OF GOVERNORS OF STATE COLLEGES AND UNIVERSITIES FOR NORTHEASTERN ILLINOIS UNIVERSITY, Defendant-Appellant, 207 F.3d 945

EASTERBROOK, Circuit Judge. We must decide whether Title I of the Americans with Disabilities Act, 42 U.S.C. §§ 12111-17, is an exercise of power under § 5 of the Fourteenth Amendment, which confers authority “to enforce, by appropriate legislation, the provisions of this article.” Defendant in this suit is an arm of Illinois and therefore one of the United States for purposes of the Eleventh Amendment.

Congress has power under the Commerce Clause to adopt the ada’s rules, but given the Eleventh Amendment a statute that rests only on the Commerce Clause can not authorize private suits against states in federal court. Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). But if § 5 bestows power to adopt the ada, then private litigation is compatible with the Eleventh Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976).

Melinda Erickson worked for five years in the College of Business and Management at Northeastern Illinois University, rising from secretary to “program associate.” She contends that the University failed to accommodate her efforts to have children. Medical care for her infertility was physically demanding and had side effects. Both the treatment and the circumstances that gave rise to it were emotionally draining. Erickson often did not come to work and was late on days when she did appear. She was fired after she became distraught and stayed home for six working days.

Erickson does not contend that the attendance requirements were designed to discriminate against persons with disabilities. Instead she argues that the University should have tolerated absences and tardiness that it would not have condoned from a healthy employee. Invoking the Eleventh Amendment, the University filed a motion to dismiss, which the district court denied. 1998 WL 748277, 1998 U.S. Dist. Lexis 15779 (N.D.Ill. Oct. 1, 1998).

The University’s interlocutory appeal is within our jurisdiction, see Seminole Tribe, 517 U.S. at 52, 116 S.Ct. 1114, even though the University does not assert sovereign immunity with respect to Erickson’s claim under the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k). Scott v. Lacy, 811 F.2d 1153 (7th Cir.1987). Cf. Wisconsin Department of Corrections v. Schacht, 524 U.S. 381, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998). The United States intervened as a party in this court to defend the ada’s constitutionality. See 28 U.S.C. § 2403(a).

Three times during the last four Terms, the Supreme Court has addressed the extent of legislative power under § 5. Kimel v. Florida Board of Regents, — U.S.-, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000); Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999); Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). Thrice it has stressed that the language of § 5, which gives Congress the power to “enforce” the Fourteenth Amendment, must be taken seriously.

Statutes that create new rights, or expand old rights beyond the Fourteenth Amendment’s bounds, do not “enforce” that amendment. Boeme dealt with the Religious Freedom Restoration Act of 1993 (rfra), 42 U.S.C. §§ 2000bb to 2000bb~4, a response to Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). Smith had held that the Free Exercise Clause of the First Amendment never requires accommodation of religiously inspired practices, so that laws neutral with respect to religion are valid. The Rfra, by contrast, obliged states to accommodate practices associated with religion.

The Court held that an accommodation requirement could not be thought to “enforce” a constitutional norm that does not require accommodation. Florida Prepaid held that Congress may not use § 5 to abrogate state sovereign immunity on the ground that statutory rights are “property” under the Fourteenth Amendment.

Kimel held that § 5 does not support the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34, because although the adea forbids consideration of an employee’s age unless age is a “bona fide occupational qualification reasonably necessary to the normal operation of the particular business”, § 623(f)(1), the Constitution’s own requirement is considerably more lenient. The Equal Protection Clause permits a state to consider a person’s age unless age lacks a rational relationship to the state’s objective.

Most consideration of age in employment therefore is constitutional; but under the adea most consideration of age is forbidden; Kimel therefore held that the adea sets up an independent rule and does not “enforce” the Constitution’s rule. Twenty-three days before the Supreme Court decided Boeme, we held in Crawford v. Indiana Department of Corrections, 115 F.3d 481, 487 (7th Cir.1997), that § 5 supports Title II of the ada, which deals with public services. Our opinion analogized the ada to the adea and observed that the latter statute had been applied to states in private litigation.

Ki-mel shows that if our analogy to the adea is precise, then Crawford is no longer authoritative; Florida Prepaid and Boeme likewise call for a fresh look at the subject. Elsewhere a great deal of ink has been spilled on this question. After Boeme but before Kimel, panels of five appellate courts held that § 5 supplies the necessary legislative power, though there was one squarely contrary holding by a court en banc. Compare Muller v. Costello, 187 F.3d 298 (2d Cir.1999); Coolbaugh v. Louisiana, 136 F.3d 430 (5th Cir.1998); Clark v. California, 123 F.3d 1267 (9th Cir.1997); Martin v.

Kansas, 190 F.3d 1120 (10th Cir.1999); and Kimel v. Florida Board of Regents, 139 F.3d 1426, 1433, 1441-44 (11th Cir.1998), with Alsbrook v. Maumelle, 184 F.3d 999 (8th Cir.1999) (en banc). The fourth circuit is internally divided. Although Amos v. Maryland Department of Public Safety, 178 F.3d 212 (4th Cir.1999) (rehearing en banc granted Dec. 28, 1999), holds that private ada litigation may proceed against state prisons, Brown v.

North Carolina Division of Motor Vehicles, 166 F.3d 698 (4th Cir.1999), held that a regulation, based on the ada, requiring the state’s Division of Motor Vehicles to accommodate disabled drivers, is unconstitutional. Recently a divided panel of the ninth circuit disagreed with Brown. See Dare v. California Department of Motor Vehicles, 191 F.3d 1167 (9th Cir.1999). The Supreme Court’s opinion in Kimel calls all of these decisions into question, and we think it best to analyze the subject afresh rather than to rehash pre-Kimel conclusions in and out of this circuit.

Believing that the Supreme Court would tackle the issue before July, the second circuit declined to reconsider Muller in light of Kimel. See Kilcullen v. New York State Department of Labor, 205 F.3d 77 (2d Cir.2000). But settlements have dashed that hope; we therefore undertake independent consideration. Whether Congress has authorized federal litigation against states is our initial question. Kimel answered yes for the adea, see 120 S.Ct. at 640-42, and the same answer is appropriate for the ada.

By incorporating 42 U.S.C. § 2000e, the ada defines persons, and thus employers, to include units of government. 42 U.S.C. § 12111(5)(A), (7). Fitzpatrick held that § 2000e is a sufficiently clear statement.

Section 12202 adds that “[a] State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter.” Finally, just in case there were doubt, § 12101(b)(4) invokes all possible sources of authority to enact the ada, “including the power to enforce the fourteenth amendment”. On the question whether a statute such as the ada enforces the Fourteenth Amendment, Kimel establishes two principal propositions.

First, because the rational-basis test applies to age discrimination, almost all of the adea’s requirements stand apart from the Constitution’s rule. Most age discrimination is rational, and therefore constitutional, yet the Act forbids it. The adea therefore does not “enforce” the Fourteenth Amendment. 120 S.Ct. at 645-48. Second, there is no need for prophylactic rules to catch evasions of the rational-basis test by state governments. Congress did not find that such a problem exists, and there is no evidence of one. The adea therefore cannot be understood as enforcement legislation. 120 S.Ct. at 648-50.

Both of these propositions are true of the ada as well — indeed, the ada is harder to conceive as “enforcement” of the Fourteenth Amendment than is the adea. Under the adea employers must ignore age but are free to act on the basis of attributes such as strength, mental acuity, and salary that are related to age. Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993). In other words, the adea forbids disparate treatment but not disparate impact. EEOC v. Francis W. Parker School, 41 F.3d 1073, 1077 (7th Cir.1994); Anderson v. Baxter Healthcare Corp., 13 F.3d 1120 (7th Cir.1994).

Likewise with the Constitution and most other employment-discrimination laws. E.g., Troupe v. May Department Stores Co., 20 F.3d 734 (7th Cir.1994) (the Pregnancy Discrimination Act does not require accommodation). Title I of the ada, by contrast, requires employers to consider and to accommodate disabilities, and in the process extends beyond the anti-discrimination principle. 42 U.S.C. § 12112(b)(5)(A), (6) (defining failure to accommodate, and criteria with disparate impacts, as “discrimination”). (Some other titles of the ada are less expansive. See Doe v.

Mutual of Omaha Insurance Co., 179 F.3d 557 (7th Cir.1999). Our concern in this case is Title I, and unelaborated references to “the ada” are to Title I.) A rational-basis test applies to distinctions on the ground of disability, just as to distinctions on the ground of age. Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439-42, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Heller v. Doe, 509 U.S. 312, 319-21, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993); United States v. Harris, 197 F.3d 870, 873-76 (7th Cir.1999). Consideration of an employee’s disabilities is proper, so far as the Constitution is concerned.

See Cleburne, 473 U.S. at 444, 105 S.Ct. 3249 (“governmental consideration of those differences in the vast majority of situations is not only legitimate but also desirable”). Consider this from the perspective of a university such as our defendant. A would-be professor who is not in the top 1% of the population in mental acuity is not apt to be a good teacher and scholar. Likewise it is rational for a university to favor someone with good vision over someone who requires the assistance of a reader.

The sighted person can master more of the academic literature (reading is much faster than listening), improving his chance to be a productive scholar, and also is less expensive (because the university need not pay for the reader). An academic institution that prefers to use a given budget to hire a sighted scholar plus a graduate teaching assistant, rather than a blind scholar plus a reader, has complied with its constitutional obligation to avoid irrational action. But it has not complied with the ada, which requires accommodation at any cost less than “undue hardship”. 42 U.S.C. § 12112(b)(5)(A), § 12111(10).

How the “undue hardship” defense under the ada compares with the “bona fide occupational qualification” defense under the adea is an interesting question, but not one we need pursue: both statutes presumptively forbid consideration of attributes that the Constitution permits states to consider, and then (like the RFRa) require the state to carry a burden of persuasion in order to take the characteristic into account. As in Kimel, the fact that the law has made adverse action based on a characteristic “prima facie unlawful” shows the extent of its departure from the Constitution’s own rule. 120 S.Ct. at 647.

Like the adea, the ada “prohibits very little conduct likely to be held unconstitutional,” id. at 648. The ada’s main target is an employer’s rational consideration of disabilities. Rational discrimination by definition does not violate a constitutional provision that condemns only irrational distinctions based on disabilities. Congress has ample power under the Commerce Clause to forbid rational discrimination, which may bear especially heavily on a class of persons who suffer from diminished human (and often financial) capital.

But to say that in devising these new rules Congress is just “enforcing” a substantive command present in § 1 of the Fourteenth Amendment since 1868 would be a legal fiction. Boerne, Florida Prepaid, and Kimel hold that fictions do not support legislation under § 5. One way to distinguish the ada from the adea would be to emphasize a remark in Kimel that “[o]ld age... does not define a discrete and insular minority because all persons, if they live out their normal life spans, will experience it.” 120 S.Ct. at 645.

The argument would continue that many disabilities are immutable; few people born blind acquire vision later. We do not read the Court’s observation in Kimel as distinguishing among characteristics that are subject to rational-basis review; instead the Court offered the observation as one reason why earlier cases had applied the rational-basis test to age. Because Cleburne held that the rational-basis test likewise governs disabilities, the reasoning behind that opinion need not come back into consideration. We know from Cle-burne that rational distinctions based on disabilities comport with the Constitution.

What is more, many disabilities come and go, or progress with time. Beethoven did not become deaf, or Milton blind, until middle age. Erickson’s medical problem affected her for a number of years but not for a lifetime (if only because medical treatment may have succeeded, or because after menopause it would have lost significance).

One can imagine an argument under § 5 for a federal law dealing with discrimination against persons with lifelong disabilities, but the ada is not such a law — not only because it extends beyond permanently disabled persons, but also because “discrimination” as the ada defines it, see § 12112(b), has little in common with “discrimination” in constitutional law. To see this, consider the role of intent.

When a state law or practice does not expressly concern a particular characteristic (such as race, sex, age, or disability), but has a disparate impact on persons with that characteristic, the plaintiff in constitutional litigation must establish that the state intends to discriminate on the basis of that characteristic. See, e.g., Personnel Administrator v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979) (sex); Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (race).

Things are otherwise under the ada, which not only demands accommodation (which forces the employer to consider, rather than ignore, disabilities) but also prohibits any rule or practice that has a disparate impact, unless the rule is “job-related for the position in question and is consistent with business necessity”. 42 U.S.C. § 12112(b)(6). See Washington v. Indiana High School Athletic Ass’n, 181 F.3d 840 (7th Cir.1999) (under the ada the plaintiff need not show that the governmental body intended to discriminate on account of disability).

Cases such as Fee-ney and Davis hold that the Equal Protection Clause does not forbid laws and practices that have a disparate impact; but the ada does forbid them. By requiring that employers accommodate rather than disregard disabilities, the ada is a cousin to the RFRA. Smith held that demands for accommodation and claims of disparate impact have no constitutional footing under the Free Exercise Clause; it takes express or intentional discrimination to violate that provision. See also Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993).

Congress then enacted the rfra, which requires every unit of government to justify any law or practice that burdens a person’s exercise of religion, “even if the burden results from a rule of general applicability”. 42 U.S.C. § 2000bb-l(a). This requires a state to accommodate religiously motivated behavior unless it can show a “compelling” reason for neutrality between religious and secular conduct. Boeme responded that Congress may not redefine the constitutional rule under the rubric of “enforcement.” What the Rfra did for religion, the ada does for disabilities.

In neither situation does the Constitution forbid neutral laws or practices that create disparate impacts; in neither situation does the Constitution require accommodation. Both the RFRA and the ada replace the Constitution’s approach with a prohibition of disparate impact and jettieson neutrality in favor of accommodation.

The rfra’s demand for a “compelling governmental interest”, 42 U.S.C. § 2000bb — 1(b)(1), made it harder for a government to prevail than do the ada’s requirements (job-relatedness, business necessity, and undue hardship), but there is a countervailing difference that makes the ada the more adventuresome. The Free Exercise Clause forbids all intentional discrimination against religious practices; the Equal Protection Clause has no similar rule about disabilities.

Rational discrimination against persons with disabilities is constitutionally permissible in a way that rational discrimination against religious practices is not. This makes the ada harder than the rfra to justify under § 5, for “[i]t is precisely in a close case that the independent judgment of Congress on a constitutional question should make a difference.” Michael W. McConnell, Institutions and

Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L. Rev. 153, 155 (1997). See also Stephen L. Carter, The Morgan “Power” and the Forced Reconsideration of Constitutional Decisions, 53 U. Chi. L. Rev. 819 (1986). Some of the Justices and several careful scholars believe that the rule of decision in the rfra is the Constitution’s own. See Boerne, 521 U.S. at 544, 117 S.Ct. 2157 (O’Connor, J., dissenting), 521 U.S. at 565, 117 S.Ct. 2157 (Souter, J., dissenting). Others who support the majority position in Smith acknowledge that the question is difficult.

See generally Symposium, Reflections on City of Boerne v. Flores, 39 William & Mary L. Rev. 597 (1998). But no one believes that the Equal Protection Clause establishes the disparate-impact and mandatory-accommodation rules found in the ada. The statute is outside the boundaries of constitutional discourse in a way that the rfra was not. If the rfra and the adea exceed the § 5 power, then so does the ada — at least to the extent it extends beyond remedies for irrational discrimination. Well, then, can the ada be sustained as reasonable prophylactic legislation?

Because the ada requires accommodation, forbids practices with disparate impact, and disregards the employer’s intent, it is harder than the adea to characterize as a remedial measure. The adea was a real anti-discrimination law; unless age was held against the employee, there was no violation. The ada goes beyond the anti-discrimination principle, a step that requires reason to think that only by going to these lengths is it possible to implement the core constitutional rule. Yet just as for the adea, Congress did not find that states have adopted clever devices that conceal irrational discrimination.

The legislative findings in 42 U.S.C. § 12101 contain not a word about state governments. Congress did find that persons with disabilities have been discriminated against; it found the same in the adea for age. What it did not find is that the practices labeled “discrimination” are irrational (as that term works under the Equal Protection Clause) or that states are major offenders — a critical inquiry not only under Kimel but also under Florida Prepaid.

Instead, Congress used the word “discrimination” in § 12101, and Committees of Congress used that word in the legislative history, to refer to any disadvantage that accompanies a disability. For example, the statement in H.R.Rep. No. 101-485(11), 101st Cong. 2d Sess. 37 (1990), U.S. Code Cong. & Admin.

News at 303, 319, that “inconsistent treatment of people with disabilities by different State or local government agencies is both inequitable and illogical for a society committed to full access for people with disabilities” means only that different public bodies treated persons differently, because the Rehabilitation Act applied to some persons but not others; it does not mean that either treatment was unconstitutional. “Inconsistent” is not a synonym for irrational — especially not when it was a federal statute that induced the inconsistency on which the Committee remarked.

Just as in Kimel, legislative statements about discrimination consist “almost entirely of isolated sentences clipped from floor debates and legislative reports.” 120 S.Ct. at 649. These snippets use the word “discrimination” in a way that fails to distinguish between rational distinctions (which the Constitution allows) and irrational ones (which it forbids). The sort of findings that would permit adoption of the ada as a precautionary measure, after the fashion of the Voting Rights Act, see South Carolina v.

Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966), must establish that states have been able to disguise forbidden discrimination as the permissible kind. Nothing in the legislative findings, or the debates preceding the ada’s adoption, shows (or even asserts) that state governments engaged in deception that prevented victims of irrational discrimination from obtaining a remedy. Findings underlying Title VII were more substantial, and because employers frequently disguised their resort to racial criteria it is easier to justify the disparate-impact features of Title VII as remedial measures.

In re Employment Discrimination Litigation, 198 F.3d 1305 (11th Cir. 1999), concludes accordingly that § 5 supports the disparate-impact rules under Title VII, as well as the disparate-treatment rules addressed in Fitzpatrick v. Bitzer. We leave that question for another day and hold only that the background of the ada does not meet the standards that Boeme and Kimel set for using § 5 to enact prophylactic legislation.

From all of this it follows that the ada does not “enforce” the Fourteenth Amendment, and from Seminole Tribe it follows that the Eleventh Amendment and associated principles of sovereign immunity block private litigation against states in federal court. But Northeastern Illinois University must understand the limits of this holding. The ada is valid legislation, which both private and public actors must follow. Even if the Supreme Court should overrule Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985), and return to the view of National League of Cities v.

Usery, 426 U.S. 833, 852, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), that laws resting only on the Commerce Clause cannot “directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions,” the University still would be bound by the ada, for running a university is no more a core governmental function than is running a railroad. See United Transportation Union v. Long Island R.R., 455 U.S. 678, 102 S.Ct. 1349, 71 L.Ed.2d 547 (1982). Like most railroads, most universities in the United States are private.

All our holding means is that private litigation to enforce the ada may not proceed in federal court. Erickson may repair to Illinois court — for although states may implement a blanket rule of sovereign immunity, see Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), Illinois has not done this. Having opened its courts to claims based on state law, including its own prohibition of disability discrimination by units of state government, see 775 ILCS 5/1— 102, 5/2 — 101(B)(1)(c) , Illinois may not exclude claims based on federal law. Howlett v.

Rose, 496 U.S. 356, 367-75,110 S.Ct. 2430, 110 L.Ed.2d 332 (1990); FERC v. Mississippi, 456 U.S. 742, 759-69, 102 S.Ct. 2126, 72 L.Ed.2d 532 (1982); Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967(1947). Moreover, the United States may enforce the ada against the University and other state actors through federal litigation. West Virginia v. United States, 479 U.S. 305, 311 n. 4, 107 S.Ct. 702, 93 L.Ed.2d 639 (1987).

But Erickson has not enlisted the United States as her champion (its' intervention was for the purpose of defending Erickson’s right to sue in her own name), so this suit belongs in state court. REVERSED