The Substantially Impaired Sex: Uncovering the Gendered Nature of Disability Discrimination

By Jennifer Bennett Shinall. Full text here.

The Americans with Disabilities Act (ADA) of 1990 was a landmark piece of legislation that prohibited private-sector employers from discriminating against qualified disabled workers. Although the Act is over a quarter-century old, legal scholars have never considered whether it has been uniformly efficacious—that is, whether the Act has served all subpopulations of disabled workers equally well. This scholarly neglect is surprising, given that prior economics research indicates that the ADA has been less effective for disabled women than for disabled men.

This Article steps back and asks why the Act might have resulted in differential effects for men and women. The ADA provides precisely the same remedies for qualified disabled workers, without taking workers’ sex into account. The Act’s approach assumes that disability discrimination is the same (or highly similar) both in nature and in strength for men and women, but this Article questions that assumption. An empirical examination of all ADA charges filed with the Equal Employment Opportunity Commission reveals a negative interaction between disability discrimination and sex: disabled workers who are in the minority sex within their workplaces are more likely to encounter discrimination than are disabled workers who are in the majority sex. Because many more industries are majority-male than majority-female, the result of this sex-disability interaction is higher overall rates of disability discrimination against women.

Using this empirical evidence, the Article concludes that if disabled women are ever to achieve an equivalent legal remedy for disability discrimination to disabled men, courts must no longer ignore the exacerbating effects of sex discrimination on disability discrimination. Indeed, the case of disabled women highlights the need for courts to reform judicially created proof structures in employment discrimination cases, which—although already the object of much scholarly scrutiny—are particularly unworkable for disabled women.