Unconsciously Regarded as Disabled: Implicit Bias and the Regarded-As Prong of the Americans with Disabilities Act

38 Pages Posted: 6 Feb 2009 Last revised: 11 Feb 2009

Date Written: February 6, 2009

Abstract

Much scholarly work has been written detailing the shift away from the original congressional intent behind the Americans with Disabilities Act (ADA), starting with the landmark U.S. Supreme Court decision in Sutton v. United Air Lines. While the U.S. Congress intended the protections under the ADA to be broad, courts have interpreted the act very narrowly, denying protections for many whom Congress intended to protect.

Missing from this scholarship, however, is an examination of how the shift has been particularly harmful for potential plaintiffs in light of recent findings in behavioral science. More discrimination than once thought is the result not of explicit and conscious attitudes, but of unconscious implicit bias. The specific ways in which the Court narrowed the ADA resulted in a lack of protection for victims of implicit bias discrimination. Further, evidence shows that implicit bias against individuals with disabilities is particularly pronounced in American society. It is primarily this kind of discrimination that courts have been unable to protect against after Sutton. The ADA Amendments Act of 2008 goes a long way towards reinstating protections for those whom are discriminated against as the result of implicit bias. This Comment cautiously endorses the Amendments and calls for increased research into how implicit bias affects individuals with disabilities. The fact that the Amendments are not a perfect solution to the prevalence of implicit bias discrimination may be a sign that this particular type of discrimination is not adequately well known and deserves further research and attention.

Keywords: implicit, implicit bias, ada, americans with disabilities act, iat, implicit association test, stereotype, stereotypes, attitudes, implicit attitudes, ada amendments, behavioral science, behavioral realism, critical law, sutton

Suggested Citation

Larson, Dale, Unconsciously Regarded as Disabled: Implicit Bias and the Regarded-As Prong of the Americans with Disabilities Act (February 6, 2009). UCLA Law Review, Vol. 56, p. 451, 2008. Available at SSRN: https://ssrn.com/abstract=1338940

Dale Larson (Contact Author)

UCLA School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States

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