Reasonably Accommodating Nonmitigating Plaintiffs After the ADA Amendments Act of 2008

Abstract

The passage of the ADA Amendments Act of 2008 ("ADAAA") has significantly changed the landscape of disability law in the United States. Prior to the ADAAA, the Supreme Court narrowed the definition of "disability" under the ADA in the landmark case Sutton v. United Air Lines, Inc. Superseding Sutton, the ADAAA broadens the definition of "disability" by indicating that measures used to successfully mitigate a plaintiff's impairment may not be considered when determining whether a plaintiff is "disabled." The ADAAA does not, however, expressly address plaintiffs who fail to use these mitigating measures, and there has been confusion among district courts on how to address these nonmitigating plaintiffs. Because the ADAAA expands the definition of "disability," it will shift the focus of many ADA cases to the subsequent determination of whether a plaintiff, who could perform his job with or without a "reasonable accommodation, is a "qualified individual" under the ADA. This Note proposes that a nonmitigating plaintiff must establish that the burdens imposed on the plaintiff to mitigate the effects of his disability are not substantially less than the burdens imposed on the employer to accommodate the plaintiffs disability in order to show that an accommodation is reasonable. This proposal screens out cases where a plaintiffs decision not to mitigate is plainly unreasonable, yet allows most nonmitigating plaintiffs to survive summary judgment. In providing coverage in most cases, this proposal comports with the spirit of ADAAA to broaden coverage under the ADA.