(Whatever Happened to) the ADA'S Record of Disability Prong(?)

Abstract

The ADA's record of disability prong is the prong least likely to be used by ADA plaintiffs in claiming protection under the Act. Between the years 2000 and 2004, ADA and Rehabilitation Act plaintiffs in federal court who alleged employment discrimination relied upon the record of disability prong less than one-third as often as the actual and perceived disability prongs in claiming disability status. Nor have ADA plaintiffs enjoyed any greater success when asserting coverage under the record of disability prong during that time period. Congress, the Equal Opportunity Commission (EEOC), and the federal courts bear much of the blame for the record of disability prong's diminished stature. The requirement of some federal courts that a record of disability plaintiff must actually produce a tangible record documenting the existence of disability has limited the scope of the second prong. The Supreme Court's restrictive interpretations of the actual and perceived disability prongs have likewise limited the reach of the record of disability prong. The record of disability prong was specifically intended to address those situations in which an individual has recovered from a once-substantially limiting impairment; yet, because of the Supreme Court's conclusion that an individual's use of mitigating measures must be taken into account when assessing the existence of disability, even this use of the record of disability prong is in doubt. However, in at least some instances, the limited role played by the record of disability prong can be attributed to the failure of plaintiffs' attorneys to fully understand and utilize the prong. This Article argues that the only way that the record of disability prong can play a meaningful role in the elimination of discrimination against individuals with disabilities is if attorneys take a fresh look at this forgotten portion of the ADA.

Keywords: ADA, disability, discrimination, record of

JEL Classification: J70, J71, K31