Disclaiming Disability
Vol. 55
February 2022
Page 1829
In the Americans with Disabilities Act (“ADA”) Amendments Act of 2008, Congress ordered the courts to broadly interpret the definition of disability under the ADA. For the most part, courts have followed that instruction, but there are still too many instances in which they have not. One particularly pernicious error made by courts is relying on a plaintiff’s statement “disclaiming” her disability — that is, testifying that she does not consider herself “disabled” — to hold that she does not meet the statutory definition of disability, and therefore loses her claim. This Article addresses this error. Specifically, after cataloguing this phenomenon, this Article argues that this practice by courts is incorrect as a matter of law and troubling as a matter of policy. In making the latter point, I explore the arguments on both sides of the debate — the benefits of requiring plaintiffs to affirmatively “claim” their disabilities versus the costs of such a requirement. Exploring these policy arguments requires me to grapple with the tensions that animate the disability rights movement and the important question of how we should define disability. Ultimately, I conclude that, despite the benefits of claiming disabilities, courts should not penalize plaintiffs for refusing or neglecting to do so.
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