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Summary: Title II of the ADA applied to State and Local Professional Licensing

July 2007

Title II of the Americans with Disabilities Act of 1990 (ADA) prohibits discrimination on the basis of disability by state and local governments. State governments grant licensing boards (e.g., law and medicine) the power to regulate who may practice in certain professional fields. With this power comes the duty to protect the public from errant professionals, and to maintain the integrity of the profession. Professional licensing boards are “Title II” entities subject to the ADA for these reasons.

State medical boards may have a greater obligation to protect the public from harm than other licensing boards. The Supreme Court of Wyoming concluded that a physician diagnosed with bipolar affective disorder and narcissistic personality disorder, posed a risk to the health or safety of patients, and therefore was not a “qualified individual” with a disability within the meaning of the ADA. The Board was not required to make accommodations toward his re-licensing in the State.

Despite their duty to protect the public, licensing boards may not exclude otherwise qualified professionals from practicing. A Department of Justice settlement required a county plumbing licensing board to make testing accommodations for a plumber with dyslexia. Before the county mandated the written exam, the plumber had demonstrated forty-two years of competency as a plumber and businessperson.

In the course of determining entry into a particular profession, licensing boards may ask questions to determine an applicant’s fitness to practice, including questions about mental and, to a lesser extent, physical disabilities. However, the ADA imposes limitations on questions the boards may ask. The disabilities themselves must actually limit an applicant’s ability to perform a specific job. Questions become discriminatory when a qualified applicant’s history of disability, which may bear no current relevance to their ability to perform, is a barrier to entry in the profession.

For instance, questions must specifically address current mental illness that would affect an applicant’s ability to perform in a professional capacity. Courts have struck down questions asking whether an applicant has ever been diagnosed with an emotional disorder. Narrower questions, such as asking about mental illness occurring within the past five years, have also been rejected. Successful questions often ask the candidate for a subjective answer as to whether their disability would affect their job performance. Boards must be able to justify their questions as reasonably necessary to protect the public from potentially incompetent practitioners.

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Disclaimer:

These materials do not constitute legal advice and should not be relied upon in any individual case. Please consult an attorney licensed in your state for legal advice and/or representation. These materials were prepared by the legal research staff of the Burton Blatt Institute (BBI) at Syracuse University in partnership with the Southeast ADA Center to highlight legal and policy developments relevant to civil rights protections and the impact of court decisions in the Southeast Region under the Americans with Disabilities Act (ADA). These materials are based on federal disability rights laws and court decisions in effect at the time of publication. Federal and state disability rights law can change at any time.  In addition, state and local laws and regulations may provide different or additional protections. Materials are intended solely as informal guidance, and are neither a determination of your legal rights nor responsibilities under the ADA or other federal, state, and local laws, nor binding on any agency with enforcement responsibility under the ADA. The accuracy of any information contained herein is not warranted. Any links to external websites are provided as a courtesy and are not intended to nor do they constitute an endorsement of the linked materials.

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