Academic journal article The University of Memphis Law Review

Prior History, Present Discrimination, and the ADA's "Record Of" Disability

Academic journal article The University of Memphis Law Review

Prior History, Present Discrimination, and the ADA's "Record Of" Disability

Article excerpt

I. INTRODUCTION

The Americans with Disabilities Act ("ADA") defines "disability" in three ways: (1) persons who have an impairment that substantially limits a major life activity; (2) persons who have a "record of' such an impairment; or (3) persons mistakenly regarded as having such an impairment.1 The second prong, an individual with a "record of' disability, includes those individuals who once had, but may no longer have, an actual disability.2

VII. CONCLUSION

The "record of' prong borrows from both the actual disability prong and the "regarded as" prong. ADA coverage under the record of prong should be determined by an individualized assessment of one's history of substantial limitations to major life activities, not by individualized assessment of whether a document happens to articulate those limitations. Establishing ADA causation is a secondary consideration; it does require employer knowledge of an employee's limitations, but that knowledge may be obtained outside the text of a document. This is particularly true where the "knowledge" is, more accurately, ignorance, fear, and stereotype.

As the ADA increasingly moves away from per se disabilities by requiring individualized assessment of the impact upon one's major life activities, new questions abound. Where the nature of the impairment is vocationally relevant, should an employer's good faith belief insulate liability in the "record of case? …

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