'Corrective' Surgery and the Americans with Disabilities Act
University of Dayton School of Law
August 1, 2008
San Diego Law Review, Vol. 46, No. 1, 2009
This article challenges the assumption that the Americans with Disabilities Act (ADA) requires persons with disabilities to undergo corrective surgery as a precondition to membership in the ADA's protected class. This issue is ripe for discussion because current efforts to amend the ADA, although not focused on the corrective surgery issue, will unsettle the current doctrine underpinning many courts' conclusions that an individual's decision to forgo available medical technology bars her from relief under the ADA. The article aims to make two contributions. First, it argues that the ADA's focus on reshaping cultural responses to disability suggests that individuals need not acquiesce to all available medical efforts to eliminate their disability before they may challenge disability discrimination. Instead, the ADA's conceptual congruence with the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race and gender, suggests that the ADA provides individuals with disabilities the opportunity to argue that their physical differences should be accepted and accommodated rather than erased. Second, it argues that reading the ADA's nondiscrimination mandate to cover persons who decline corrective surgery is consistent with the ADA's text. The Supreme Court's Sutton v. United Air Lines decision, which has contributed to many courts' conclusions that the ADA requires individuals to undergo corrective surgery, in fact prevents courts from excluding persons from the ADA's protected class based on the hypothetical benefits of forgone corrective surgery.
Number of Pages in PDF File: 22
Keywords: disability, ADA, mitigation, surgery, cochlear implants
Date posted: September 29, 2008 ; Last revised: January 15, 2009