Accidentally on Purpose: Intent in Disability Discrimination Law

Mark Weber's new article, Accidentally on Purpose: Intent in Disability Discrimination Law, is now available on ssrn here and forthcoming in Boston College Law Review.  For those interested in intentional discrimination standards in general (race, gender, etc.) or disability discrimination in particular, the article is a must read.  It takes very complex and intersecting statutory concepts of intent and brings them together in a coherent way.  Moreover, it points out where some courts have just gotten precedent wrong and should self-correct.  His abstract offers this summary:

American disability discrimination laws contain few intent requirements. Yet courts frequently demand showings of intent before they will remedy disability discrimination. These intent requirements have come into the law almost by accident: through a statutory analogy that appears apt but is in fact false; by continued repetition of language pulled from an obsolete judicial opinion; and by doctrine developed to avoid a conflict with another law when the conflict does not actually exist. Demanding that section 504 and Americans with Disabilities Act claimants show intentional discrimination imposes a burden found nowhere on the face of those statutes or their interpretive regulations.

This Article spells out the reasons not to impose any intent requirement either for liability or for monetary relief in section 504 and ADA cases concerning reasonable accommodations. It makes the uncontroversial point that no intent requirement applies to ADA employment cases, then explains that the same conclusion ought to apply to cases under the ADA’s state and local government provisions and section 504. It rebuts an analogy to caselaw under Title VI and Title IX of the Civil Rights Act that some courts use to support an intent requirement. It then identifies and corrects the reasoning of cases relying on the inappropriate analogy, those that rest on the obsolete precedent, and those that refuse to apply a full range of remedies for fear of conflict with the federal special education law.

This Article breaks new ground in the scholarly discussion of the disability discrimination laws by placing into context and critiquing the infiltration of intent requirements into cases brought under the provisions that bind state and local government and federal grantees. It relies on a contextual reading of the decisions of the Supreme Court, on the history of the ADA, and on policy considerations that ought to determine liability and remedies for unintentional disability discrimination.