The opinion of the court was delivered by: LASKER
Phyllis Chaplin was diagnosed as an epileptic in 1965, and since has had her condition controlled by anti-epileptic medications. Individually and as a representative of a proposed class, Chaplin, together with the Epilepsy Foundation of America (the Foundation), sue Consolidated Edison Company of New York, Inc. (Con Ed), and certain of its officials and physicians in its Medical Department under sections 503 and 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 793, 794, alleging that Con Ed's hiring policies discriminate against qualified job applicants who are epilepsy sufferers. Con Ed moves to dismiss the complaint on the grounds that section 503 does not provide a private cause of action, that Chaplin has failed to exhaust her administrative remedies, and that the Foundation lacks standing to sue.
I. Implication of a Private Right of Action Under Section 503(a)
The statutory scheme involved here consists of three subsections of the Rehabilitation Act of 1973, §§ 503(a), 503(b) and 504.
Section 503(a), 29 U.S.C. § 793(a), requires that certain federal contracts contain a clause requiring the contractor to take affirmative action to hire handicapped persons:
"Any contract in excess of $ 2,500 entered into by any Federal department or agency for the procurement of personal proverty (Sic ) and nonpersonal services (including construction) for the United States shall contain a provision requiring that, in employing persons to carry out such contract the party contracting with the United States shall take affirmative action to employ and advance in employment qualified handicapped individuals as defined in section 706(7) of this title. . . ."
Section 503(b), 29 U.S.C. § 793(b), provides for Department of Labor investigation of complaints filed by handicapped individuals of violations of the statute:
"If any handicapped individual believes any contractor has failed or refuses to comply with the provisions of his contract with the United States, relating to employment of handicapped individuals, such individuals may file a complaint with the Department of Labor. The Department shall promptly investigate such complaint and shall take such action thereon as the facts and circumstances warrant, consistent with the terms of such contract and the laws and regulations applicable thereto."
Section 504, 29 U.S.C. § 794, prohibits discrimination against handicapped individuals under programs receiving federal financial aid:
"No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall, solely by reason of his handicap be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. . . ."
The question whether section 503(a) provides a private cause of action is one of first impression in this circuit, nor has the issue been addressed by any other circuit courts. Those district courts that have decided the issue are divided on its resolution.
The parties agree that since section 503(a) does not expressly provide a private cause of action, the analysis outlined in Cort v. Ash, 422 U.S. 66, 78, 95 S. Ct. 2080, 2088, 45 L. Ed. 2d 26 (1975), controls in determining whether an implied cause of action exists.
Cort v. Ash specified four factors as relevant to the determination whether a private cause of action should be implied under a statute not expressly providing one.
"First, is the plaintiff "one of the class for whose Especial benefit the statute was enacted,' . . . that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit either to create such a remedy or to deny one? . . . Third, is it consistent with the underlying purpose of the legislative scheme to imply such a remedy for the plaintiff? . . . And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?"
Id. (citations omitted) (emphasis in original).
Even those courts that have refused to imply a right of action under section 503(a) acknowledge that the statute was enacted to benefit handicapped persons. Anderson v. Erie Lackawanna Ry. Co., 468 F. Supp. 934, 936 (N.D.Ohio 1979); Wood v. Diamond State Tel. Co., 440 F. Supp. 1003, 1008 (D.Del.1977); Rogers v. Frito-Lay, Inc., 433 F. Supp. 200, 202 (N.D.Tex.1977); See Moon v. Roadway Express, Inc., 439 F. Supp. 1308, 1309 (N.D.Ga.1977).
That Phyllis Chaplin and other epileptics are "handicapped" within the meaning of the statute is not disputed. In sum, Chaplin and the members of the class she represents belong to a "class for whose Especial benefit the statute was enacted."
The legislative history of section 503 is silent on whether Congress intended to create or deny a private right of action under the section. See Hart v. County of Alameda, No. C-79-0091, Slip op. at 13 (N.D.Cal. September 5, 1979); Wood v. Diamond State Tel. Co., supra, 440 F. Supp. 1003, 1008 (D.Del.1977); Drennon v. Philadelphia General Hospital, 428 F. Supp. 809, 815 (E.D.Pa.1977). The only other expressions of Congressional intent to which attention has been directed are (1) the failure of Congress to amend Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e through 2000e-17, to prohibit discrimination against handicapped persons, (2) the legislative history of the Rehabilitation Act Amendments of 1974, Pub.L. No. 93-516, 88 Stat. 1617 (1974), indicating Congress' intent that section 503 be administered uniformly with section 504, and (3) the legislative history of the 1978 amendments to the Rehabilitation Act.
1. Failure to Amend Title VII
First, two courts have found Congress' failure to adopt proposed amendments to Title VII that would have extended that statute's reach to handicapped individuals to be probative of its intent not to provide a private right of action to handicapped persons under section 503(a). Moon v. Roadway Express, Inc., supra, 439 F. Supp. 1308, 1309 (N.D.Ga.1977); Rogers v. Frito-Lay, Inc., supra, 433 F. Supp. 200, 202 (N.D.Tex.1977). The conclusion appears dubious. Congress' failure to adopt an amendment may lead to more than one valid inference of its intent. Here, for example, Congress may not have wished to extend the prohibition against discrimination against the handicapped found in sections 503 and 504 beyond the Rehabilitation Act's application to federal contractors and recipients of federal assistance, or it may have believed that it had already created a private right of action for handicapped persons under the Rehabilitation Act, and that ...