Saturday, April 21, 2007

Smith on the Definition of Disability

New on SSRN: Deirdre M. Smith, Who Says You're Disabled? The Role of Medical Evidence in the ADA Definition of Disability (Tulane Law Review, forthcoming). The abstract:

The Americans with Disabilities Act ("ADA"), enacted by Congress seventeen years ago, offered disabled people a hope for equality and access that has not been fulfilled. Court decisions halt an overwhelming majority of claims at the summary judgment stage. A key mechanism for fencing out disabled people's claims is the pernicious requirement, based upon the very construction of disability that the ADA's proponents aimed to dispel, that medical evidence is required as a threshold matter to demonstrate that the statute applies. However, a plaintiff's testimony is sufficient to establish a prima facie claim of disability. Whether such evidence, standing alone, is ultimately persuasive in proving disability should be a question for the fact-finder.

This Article argues that courts improperly require plaintiffs to produce expert medical evidence to establish that they meet the statute's definition of an "individual with a disability." The stated rationales applied to the medical evidence requirement,
such as the need for "corroborating" evidence, "objective" evidence, or evidence to assist juries in assessing disabilities that are not "obvious," do not withstand analysis under either the substantive law of the ADA or broader summary judgment principles. Such requirement in fact reflects an unstated rationale: a deep-seated skepticism of those "claiming disability" generally and ADA plaintiffs specifically. As a result, judges disregard the proper analysis to be applied to summary judgment motions and instead impose a hyper-technical, heightened evidentiary burden on plaintiffs in an effort to foreclose potential malingers' claims from reaching the trial stage. This skepticism, however, is itself another form of entrenched, invidious discrimination against people with disabilities.

Moreover, judges' reliance on medical evidence to screen out claims brought by people faking or exaggerating disability is misplaced. The determination of whether a person is truly disabled or merely exaggerating her condition to achieve some secondary gain through ADA litigation is one more properly left to jurors than to doctors. The continued hegemony of medicine in identifying disability, as demonstrated in the view that physicians can and should serve as gatekeepers of disability claims, wrongly pathologizes and demeans the category of "disability" and undermines the statute's effectiveness as a tool to advance civil rights.

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