Reasonable Accommodation for those “Regarded As” Disabled: Why Requiring It will Create Positive Incentives for Employers

Abstract

At the birth of federal disability law in the United States, Congress, when enacting the Rehabilitation Act of 1973, asserted that “[i]t is against the basic tenets of the scientific process to make an assumption of no hope and no help” and reasoned that “[n]o less should be true of public policy.” Congress realized that this lack of hope and help was pervasive in America’s relationship to its disabled population. Most importantly, employers were resistant to hiring people with disabilities based on generalized and often irrational fears about disabled employees. Due to the lack of “help and hope,” Congress enacted the Americans with Disabilities Act (“ADA”) to bring help and hope to those with disabilities. Nevertheless, the interpretation of the ADA in four circuit courts directly contravenes Congress’s attempt to aid the integration of the disabled into society. By holding that non-disabled employees “regarded as” disabled do not fall under the definition of “disability” under the ADA, these circuit courts have relieved employers of the reasonable accommodation requirement under the ADA for such employees. This interpretation of the ADA is critically flawed both in its legal underpinnings as well as its social effects. As a result, the Supreme Court needs to directly confront this issue and hold that employees “regarded as” disabled are required to be reasonably accommodated by their employers and, in the absence of requisite accommodations, “regarded as” disabled individuals have a cause of action against their employers.