Disability Law

Everyone owes each other a duty of ordinary care—but what is “ordinary”? How does one act reasonably to meet this burden? This Comment analyzes the current reasonable person standard for disabled plaintiffs and the corresponding duty of “ordinary care” provided by defendants through a critical disability studies lens. The current system of tort law burdens disabled plaintiffs with accommodating themselves, rather than requiring defendants to include accessible care in meeting their duty of ordinary care. To make the distribution of accommodative labor more equitable, this Comment proposes three stackable changes: (1) courts should reinterpret defendants’ duty of ordinary care to include care of individuals with disabilities by eliminating the doctrine that tortfeasors owe accommodations to people with disabilities only if they are on notice of their disabilities; (2) courts could further shift the balance of accommodative labor by factoring the mental and physical cost of accommodating oneself into the reasonable care inquiry when the plaintiff is disabled; and (3) courts could eliminate comparative negligence for plaintiffs with disabilities to address the problematic “reasonable person with a disability” standard. This Comment also explores theoretical, doctrinal, and normative justifications while creating space for a more robust dialogue on how the law treats disability as “extra”—but not ordinary.

Anti-fat bias has been described as the last socially acceptable form of prejudice. Despite the discrimination that fat people face, there is no federal protection against weight discrimination. One potential solution to the lack of existing legal protections is the Americans with Disabilities Act (ADA). Claims challenging weight discrimination under the ADA argue that weight discrimination is a form of disability discrimination that is based on the medical condition of obesity. Yet, courts have resisted granting the ADA’s protections to obese plaintiffs.

This Comment argues that courts should recognize obesity as an ADA-protected disability, even in circuits that have restricted obesity-as-a-disability ADA claims to cases where a plaintiff can show that their obesity is related to a physiological disorder. The author draws parallels between obesity and gender dysphoria to highlight courts’ recent willingness to extend the ADA’s protection to highly stigmatized clinical conditions when a diagnosis has gained credibility in the medical community and evidence suggests that the condition has a physiological cause.

How far may a school district deviate from the services specified in an IEP and remain in compliance with the IDEA? In other words, how much of the adequate written plan is the student in fact entitled to receive? There are two existing approaches to failure-to-implement cases: the materiality approach and the per se test. This Comment argues that both approaches are flawed.