Disability Discrimination

Individuals with disabilities have physical or mental impairments that prevent their executing one or more major life functions in the species-typical way. This general conceptualization orients discussions of the moral and political dimensions of disability discrimination. For legal purposes, however, who is subject to and protected from disability discrimination is determined by statutory language or judicial interpretations, both of which vary from jurisdiction to jurisdiction.

Individuals considered to have disabilities under the U.S. Americans with Disabilities Act (ADA) must have or be regarded as having a physical or mental condition that substantially limits a major life activity. Under the California Fair Employment and Housing Act (FEHA), however, individuals for whom success in a major life activity is fully achievable but made more difficult than usual because of a physical or mental condition also are protected from disability discrimination. Furthermore, ADA case law takes mitigating measures such as corrective lenses or medications into account in the determination of how limiting a condition may be, while California law explicitly provides for physical and mental limitations to be assessed absent consideration of mitigating measures.

When an individual who has disabilities, or thought to have disabilities, is for this reason treated less well than other people, or excluded from opportunities most others enjoy, that person has been subjected to disability discrimination. Often such discriminatory practice intentionally targets individuals with disabilities with the aim of ensuring that others need not suffer their presence nor have to interact with them. Just as often, however, disability discrimination is the result of thoughtlessness. Practices built on the presumption that only species-typical people will participate can have a disparately negative, and therefore discriminatory, impact on people with anomalous bodies or minds.

That a practice is discriminatory does not, however, establish for everyone that it is wrong. There are individuals who advance a moral claim to freedom of choice of their associates, which they understand as a right to treat some people less well than others, and to remain socially removed from them, on the basis of sex, race, religion, or national origin, or because the people have disabilities. The question this argument provokes is whether the harm of disability discrimination (and of race and sex and other kinds of discrimination as well) resembles the harm absorbed by an unpopular person bereft of invitations to dance or play or join the group for lunch, or whether the harm is of a more profound kind that commands moral consideration. That the harm caused by disability discrimination rises to the level of injustice has not been a commonplace view in the past, nor does this view command universal assent today.