The plaintiff's two-sided mouth: defeating ADA claims based on inconsistent positions taken by the plaintiff on other claims.

Abstract

In the typical ADA claim, the plaintiff will claim that he or she has a disability but is nevertheless able to perform the essential functions of his or her job. This position is often in direct conflict with other non-ADA claims that the plaintiff has made or is making, where the plaintiff is claiming total disability and/or that he or she is unable to work. This article examines these phenomena, reviews the numerous recent cases that have found for employers based on these inconsistent positions of the plaintiff, and explains how employers can be develop and present this defense.