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On (Not) Deserving Disadvantage, Leslie Francis

Utah Law Faculty Scholarship

The Americans with Disabilities Act (ADA) is a civil rights statute, giving rights to everyone, but is structured to require people claiming its protections to have a characteristic, “disability.” This structure presents an apparent paradox: how can a statute accord both civil rights to all and special rights to some? This contribution argues that the paradox can be dissolved by understanding discrimination “based on” disability as treating people unfairly because of a characteristic they have, in two critically different forms. One form is individual: the failure to accommodate mental or physical differences to enable individuals to work successfully, participate in …