Mitigation and the Americans with Disabilities Act

to address a duty to mitigate under Title I are divided on whether mitigation should be required,7 and those in favor of the duty have not developed a clear standard for when that duty should apply.8To the extent that the decisions supporting a duty to mitigate imply any principle for implementing the duty, most appear to suggest that Title I plaintiffs are obligated to mitigate whenever mitigation is possible.I reject both extremes of the existing debate.This Article argues that plaintiffs seeking Title I protection should be under a duty to mitigate, but that this duty should require plaintiffs to pursue only those mitigating measures that could reduce their need for workplace accommodation and that a reasonable person in the same situation would pursue.The question of whether, when, and why there is a duty to mitigate under Title I of the ADA is important both doctrinally and theoretically, and courts enforcing Title I will inevitably have to decide it.Employer-defendants are beginning to press the issue, and existing ADA case law-combined with tort jurisprudence, medical literature, and disabled people's own accounts-makes clear that some people do not mitigate their disabilities when mitigation is possible.First, many disabled people do not want to bear the risks or side effects associated with some mitigating procedures.These risks and side effects range from the very serious to the less so.The failure rates for mitigating measures vary widely.The side effects associated with mitigation may be mild, but may also entail permanent neurological damage, impaired memory, impaired cognitive function, dulled creativity, aggressive behavior, hyperactivity, tremors, seizures, 7.For cases holding that courts will consider only mitigation that the plaintiff has undertaken, see Nawrot v

Equal Protection Clause · Fair Housing Act · Law, Economics, and Judicial Systems · Legal and Constitutional Studies · Legal Systems and Judicial Processes

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