Perceived Disabilities, Social Cognition, and 'Innocent' Mistakes

This Article uses social cognition literature to analyze one form of non-prototypic employment discrimination under the Americans with Disabilities Act of 1990 (ADA). When enacting the ADA, Congress recognized that discrimination against individuals with disabilities is so pervasive that it reaches beyond those who possess substantially limiting impairments. Therefore, the ADA protects not only individuals who have an actual disability, but also non-disabled individuals who are mistakenly regarded as disabled by their employer. The field of social cognition, particularly causal attribution theory, studies why, how, and when we misperceive other individuals' capabilities. By taking an interdisciplinary approach, this Article concludes that many perceived disabilities are likely to occur as the predictable byproduct of otherwise efficient and typically unconscious cognitive processes, rather than from the conscious application of group-based prejudice. This Article argues that these misperceptions should not be ignored, as many current courts are doing. However, it suggests conceptualizing this type of employment discrimination as a form of negligence or strict liability with limited remedies, as an alternative to relying solely on a model of intentional torts.