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Hastings Law Journal

Authors

Lisa E. Key

Abstract

This Article addresses the question of whether a person who has a disability that was caused, continues to exist, or is aggravated as a result of that person's voluntary conduct should be entitled to the full protections of the Americans with Disabilities Act ("ADA"). Professor Key asserts that a distinction should be made between mutable disabilities and disabilities that, although caused by voluntary conduct, are now immutable. She argues that the protections of the ADA should be limited only for those persons with mutable disabilities, and then sets forth a proposal to so limit the ADA.

The ADA requires employers to make "reasonable accommodations" to enable a person with a disability to work. In assessing whether an accommodation is "reasonable," Professor Key proposes that the actions of a person with a mutable disability should be a significant consideration. Unless that person has taken all reasonable steps to minimize their condition, their employer should not be obligated to bear the cost of an accommodation. In determining what actions a person with a mutable disability would be required to take, she suggests following the case law that has developed in the area of avoidable consequences under tort law.

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