Few university and college faculty members are disabled. Yet those few may face significant difficulties in preserving their jobs. A professor who has suffered a stroke may have difficulty enunciating clearly during his lectures; the university may prefer to replace him before students complain. A professor who develops hearing problems may not hear his students' questions clearly. An instructor with asthma may find it difficult to breathe the air in the classroom where she has been assigned to teach.
The problem is particularly acute for those faculty who are nontenured and whose contracts are awarded on a yearly basis. In general, an educational institution is under no obligation to renew the contract of a non-tenured family member.1 Yet, although tenured faculty have more job security than non-tenured faculty, they too must be concerned about their situation should they acquire an impairment. Even tenured faculty may be deprived of their jobs if the university perceives that they are no longer able to fulfill their duties as faculty members.2
Federal legislation, however, has developed an exception to the common law at-will employment doctrine in the case of disability discrimination. Under the Rehabilitation Act of 1973(3) and its more famous cousin, the Americans with Disabilities Act of 1990 (ADA),4 employees whose employers have discriminated against them because of their disabilities have a cause of action. Both non-tenured and tenured faculty, then, have a potential remedy for loss of their jobs if the loss was due to their disabilities.
Unfortunately faculty plaintiffs' lawsuits under the Rehabilitation Act and the ADA have generally not been successful. This article will explore some of the reasons why disability discrimination actions usually fail. The first part of this article will set out the legislation designed to protect the disabled individual from discrimination based on his disability. The second part will review the unsuccessful actions which have been brought by putatively disabled faculty members and the reasoning of the courts in dismissing their actions. The third part will examine the successful actions which disabled faculty members have brought. Finally, the article will compare the successful and the unsuccessful actions and provide some conclusions as to why faculty have such difficulty in winning their disability discrimination claims and how they can most successfully present their claims in future lawsuits.
II. THE AMERICANS WITH DISABILITIES ACT
Congress passed the ADA in 1990, based on its powers under the Commerce Clause and the Fourteenth Amendment,5 in order to remedy what it regarded as the "serious and pervasive social problem" of nondisabled Americans' discrimination against disabled Americans by isolation and segregation.6 Based on "census data, national polls, and other studies," Congress concluded that "people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally."7 This "discrete and insular minority" had been "faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society."8 The disabled thus affected numbered a potential forty-three million Americans, when both physical and mental disabilities were included, and the number would increase with the gradual aging of the American population.9
Despite the ADA's eloquence on the subject of the downtrodden disabled, congressional legislation already existed to protect the rights of the disabled. Seventeen years before, Congress enacted the Rehabilitation Act of 1973 to protect the rights of the handicapped.10 Although this lesser-known act tracked much of what was to become the ADA's language, it had seldom been used in discrimination litigation. After 1990, however, disabled individuals were able to call upon both the ADA and the Rehabilitation Act in their discrimination actions. …