This Essay is part of an extensive research project concerning the intent that must be shown in order to obtain judicial relief under the American disability discrimination laws. This Essay focuses on social science research about intent and its relation to the law, comparing disability to race and sex discrimination. It describes research about race and sex and notes that evidence of pervasive but unacknowledged discriminatory thinking is significant. Although the law could bar race and sex discrimination that is not intentional, it has not been interpreted to do so, particularly in contexts other than employment. Social science research indicates that people hold unacknowledged attitudes that foster discriminatory treatment of people with disabilities as well. Much more clearly than the race and sex discrimination statutes, the disability discrimination laws take these attitudes into account and forbid unintentional discrimination in a broad range of cases. Many courts have failed to interpret the disability statutes in a manner that is true to their terms, however. One way of assessing that development is to note that it is a doctrinal failure, one in which the lower courts have disregarded congressional commands. But viewed in a different way, the courts are doing precisely what one might expect them to do, given that they share the same habits of mind and hidden attitudes as those against whom they are supposed to be enforcing disability discrimination laws. This Essay advances the scholarly discussion of implicit discrimination by comparing evidence of discriminatory attitudes on race and sex with the law that applies to those areas, then making a further comparison to attitudes about disability and the disability discrimination laws. In addition, it assesses what courts have done in disability cases against social science findings and considers whether targeted social interventions might promote the anti-discrimination ideal.
2016 University of Illinois Law Review 151