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Washington Law Review

Alex B. Long

Abstract

Of the three prongs in the Americans with Disabilities Act's (ADA) definition of disability, the "record of" prong is far less likely to be used by ADA plaintiffs in claiming protection under the Act than are the actual disability and "regarded as" prongs. Between the years 2000 and 2005, ADA and Rehabilitation Act plaintiffs who alleged employment discrimination in federal court relied upon the "record of" prong less than one-third as often as either the actual and "regarded as" prongs in claiming disability status. When they did rely on the "record of" prong, ADA plaintiffs did not enjoy any greater success during that time period. Congress, the Equal Employment Opportunity Commission (EEOC), and the federal courts bear much of the blame for the "record of" prong's diminished stature. The requirement of some federal courts that a "record of" plaintiff must actually produce a tangible record documenting the existence of disability has limited the scope of the second prong. The U.S. Supreme Court's restrictive interpretations of the actual and "regarded as" prongs have also limited the reach of the "record of" disability prong. Congress specifically intended the "record of" prong to address those situations in which an individual has recovered from a once-substantially limiting impairment; yet, because of the Court's conclusion that an individual's use of mitigating measures must be taken into account when assessing the existence of disability, even this use of the "record of" prong is in doubt. However, in at least some instances, plaintiffs' attorneys bear some of the blame for the limited role the "record of" prong plays in employment discrimination suits. This Article argues that the only way that the "record of" disability prong can play a meaningful role in the elimination of discrimination against individuals with disabilities is if attorneys take a fresh look at this forgotten portion of the ADA.

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