Abstract: People with disabilities have the same rights and deserve to enjoy the same privileges as everyone else. However, people with disabilities face societal inequities that hinder their full participation in society. As a result of persistent advocacy and civil protest, federal laws have been enacted to prohibit discrimination based on a person’s disability. Yet, policies that discriminate against people with disabilities have continued. One cause of this troubling situation is that federal circuit courts still disagree on whether federal disability rights laws, including Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA), allow plaintiffs to challenge facially neutral policies that disproportionately discriminate against people with disabilities. The Third and Ninth Circuits say that disparate impact claims should be cognizable under federal disability rights laws, while the Sixth Circuit says that disparate impact claims should not be cognizable, specifically under Section 504.
This Comment argues that the Sixth Circuit overlooked the possibility for seemingly neutral policies that could still disproportionately impact people with disabilities in practice. Policies that make face coverings optional in public schools during the coronavirus (COVID- 19) pandemic are good examples. Societal exclusion faced by people with disabilities was a systemic issue when Congress passed Section 504 and the ADA. Yet, societal exclusion based on disability still exists, in part because entities still implement policies and practices that unfairly impact people with disabilities. This Comment advocates for all federal circuit courts to follow the Third and Ninth Circuits in declaring that disparate impact claims are cognizable under both Section 504 and the ADA.
