Anticipating Disability

Abstract

Where do future disabilities fit within the law?  Disability civil rights laws expressly extend rights to individuals with present or past disabilities, but it remains unsettled how the prospect of acquiring a disability in the future should be understood within these laws.  Resolving this question is crucial not only for continued refinement of disability civil rights doctrine, but it is also important for antidiscrimination law more broadly given racial disparities in exposures to potentially disabling circumstances and the negative health effects of racism itself.

This Article is the first within legal scholarship to provide a comprehensive taxonomy of how future disabilities can be understood within disability civil rights law. I propose two overarching frameworks for situating future disabilities in the law.  The first framework, which I describe as anticipatory accommodations, concerns efforts to obtain disability accommodations in the present to counter the possibility of acquiring a disability in the future, such as a person seeking disability accommodations to avoid COVID-19 exposure that they believe may lead to a future disability.  The second framework, which I describe as preemptive disability stigma, concerns adverse treatment of an individual in the present based on others’ perception that the individual may acquire a future disability, such as an employer firing an employee whom they believe might become disabled.  The Article fills a gap in legal doctrine and scholarship by articulating and evaluating each framework, concluding that only a narrow subset of claims within the anticipatory accommodations framework appears apt for resolution under disability civil rights laws but claims under the preemptive disability stigma framework align with the laws’ scope and could meaningfully advance their nondiscrimination purpose. The Article calls for clarification of the proper application of disability civil rights laws to future disabilities through judicial interpretation and, as needed, regulatory and statutory reform. 

Keywords: antidiscrimination law, disability law