Discrimination Against Disabled Contractors Under the Rehabilitation Act

Abstract

This article performs an analysis of the largely overlooked disagreement in authority presented by Fleming v. Yuma Regional Medical Center, where the Ninth Circuit decided that independent contractors may use § 504 of the Rehabilitation Act to hold contractees liable for discrimination. In doing so the article illustrates how undisciplined courts have been in construing § 504 and highlights policy concerns that undercut the theory that only employees are covered by the Act. This article should be of greatest interest to scholars of employment discrimination law but also to policymakers given the articles’ narrative of the history of the disability movement and the need for congressional action to reinvigorate the Rehabilitation Act and remedy the incorrect view of § 504 as a primitive version of the Americans with Disabilities Act. The article will prove to be increasingly relevant considering the rising percentage of contingent workers in the U.S. economy, a significant percentage of whom are disabled independent contractors.