Unconsciously Regarded as Disabled – Abstract

Dale Larson has posted his  comment, “Unconsciously Regarded as Disabled: Implicit Bias and the Regarded-As Prong of the Americans with Disabilities Act” (56 UCLA Law Review 451 (2008)) on SSRN.  Here’s the abstract.

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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.

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For a related Situationist post, see ““Disabling Prejudice” – Abstract.”   To review other Situationisthere. posts discussing implicit associations, click