Elizabeth Pendo, Substantially Limited Justice?: The Possibilities and Limits of a New Rawlsian Analysis of Disability-Based Discrimination, 77 St. John's L. Rev. 225 (2003), https://digitalcommons.law.uw.edu/faculty-articles/979
John Rawls has been called the most significant and influential moral philosopher of the twentieth century, and his ideas have deeply influenced discussions of social, political, and economic justice across disciplines including law, philosophy, and political science. Given his preeminence, does Rawls's theory of justice as fairness fail in either of the two ways described above or is it a promising analysis for achieving justice for people with disabilities?
In its most recent terms, the Supreme Court has increasingly turned its attention toward the Americans with Disabilities Act of 1990 (the ADA). In several significant decisions, it has grappled with the questions of who should be protected under the ADA and what such protection requires. In the wake of these decisions, workers with disabilities4 have found it increasingly difficult to assert and protect their right to be free of discrimination in the workplace, and debate regarding who should be protected under the ADA and what such protection requires has intensified. Attempts to reconcile the decisions to the language and purposes of the ADA, however defined, lead back to more fundamental questions about disability: what does it mean to have a disability, and what, if anything, is society obligated to do for people with disabilities? In light of this continued uncertainty and Rawls's recent and final reformulation of his theory of justice as fairness in Justice as Fairness: A Restatement, it is an especially appropriate time to take a fresh look at Rawls's work in the context of disability, specifically Title I of the ADA.
This Article seeks to use Rawls's recently restated methodology as a philosophical foundation from which to evaluate the structure and content of the ADA, as well as recent ADA jurisprudence. Part I provides an overview of Title I of the ADA and of Rawls's recent reformulation of his theory of justice as fairness. Part II articulates a Rawlsian approach to the problem of disability-based discrimination in employment, focusing primarily on the two parts of Rawls's second principle of justice: the Principle of Fair Opportunity and the Difference Principle. Part III uses Rawls's methodology to critique recent ADA jurisprudence and argues that these cases were not decided based on the values of distributive justice or the language and stated purposes of the ADA. Finally, Part IV identifies several of the limitations of a Rawlsian interpretation of the ADA and the consequences of those limitations for workers with disabilities.