Why courts cannot deny ADA protection to plaintiffs who do not use available mitigating measures for their...

Congress intended the Americans with Disabilities Act ("ADA") to provide strong standards for addressing and eliminating discrimination against individuals with disabilities. Many commentators have concluded, however, that the federal courts are undermining the goals of the ADA by too narrowly construing membership in the statute's protected class. One example of this trend is courts' hostile treatment of ADA plaintiffs who do not use medications or devices that might alleviate their impairments ("nonmitigating plaintiffs"). Numerous district and appellate decisions have held or suggested that nonmitigating plaintiffs are not protected by the ADA. In addition, some commentators have proposed that courts should evaluate the reasonableness of a plaintiff's decision not to use mitigating measures; they argues that it is unfair to burden an employer with the cost of accommodating a disability that continues to exist only because an employee unreasonably refuses to mitigate it. Contrary to the views of these courts and commentators, however, this Comment will show that nonmitigating plaintiffs are entitled to ADA protection from employment discrimination. It argues that the statute's language, history, and structure, as well as Supreme Court precedent, demonstrate that courts cannot deny ADA protection based on a plaintiff's nonuse of available mitigating measures. It also presents several considerations that weigh against any future congressional enactment that would tie ADA protection to the reasonableness of a plaintiff's decision not to mitigate an impairment.