ABSTRACT :: By dramatically enlarging the Americans with Disabilities Act’s (ADA) protected class, the recent amendments to the ADA increase the opportunities for employers to replace one member of the ADA’s protected class with another. Although disparities in the social stigma associated with different disabilities suggests that such employment decisions are not automatically free from disability-based animus, many courts historically regarded such decisions as immune from ADA scrutiny. They held that the ADA only prohibited discrimination between persons inside and outside the ADA’s protected class. Today, this “no intraclass claims” approach persists in a modified form: Some courts limit intraclass claims to situations in which employers disfavor persons with more biologically severe disabilities vis-a-vis those with less biologically severe disabilities. Although this approach benefits individuals with more biologically severe disabilities, it compounds the disadvantage experienced by persons whose disabilities carry the most significant social stigma, a burden that does not directly correlate with the biological severity of a person’s disability. This Article argues that just as courts’ traditional refusal to permit intraclass disability discrimination claims inappropriately obscured the negative social responses to disabilities the ADA was designed to address, courts’ current emphasis on the biological severity of disabilities departs from the ADA’s core purpose: remedying the stigma and stereotypical assumptions experienced by individuals with disabilities.
September 2016, Vol. 68, No. 5
Leslie C. Levin, Lawyers Going Bare and Clients Going Blind
Aya Gruber, Amy J. Cohen, & Kate Mogulescu, Penal Welfare and the New Human Trafficking Intervention Courts
Caprice Roberts, Supreme Disgorgement
Anthony Jose Sirven, Undue Process: A Father's Proprietary Interest in an Embryo and Its Clash with Casey
Maris Snell, Section 875C: Not for All Intents and Purposes