Leveling the Playing Field or Stacking the Deck? The Unfair Advantage Critique of Perceived Disability Claims

Abstract

In Title I of the Americans with Disabilities Act of 1990 (ADA), Congress recognized that the fears, misperceptions, and stereotypes about disabled individuals are so pervasive that employment discrimination reaches beyond those who actually possess substantially limiting impairments. Accordingly, the ADA protects not only employees with actual disabilities, but also those nondisabled employees who mistakenly are regarded as disabled by their employers. This Article analyzes to what extent those with perceived disabilities should receive the same substantive safeguards as those who are actually disabled. Specifically, the Article argues that applying the traditional forms of the ADA's reasonable accommodations and essential functions rules to perceived disabilities exceeds the ADA's narrow conception of equal employment opportunity. Because abandoning these protections would, in contrast, fall short of the ADA's objectives, this Article proposes a middle-ground alternative. This alternative uses a remedy analysis to reconceptualize the rules in a way that provides the broadest scope possible for the ADA's regarded as prong, while remaining consistent with the statute's basic goals.

Keywords: ADA, disability discrimination