William & Mary Business Law Review


Through enactment of Title I of the Americans with Disabilities Act (ADA) in 1990, Congress unequivocally resolved to prohibit discrimination on the basis of disability in the workplace. However, distortions have since created loopholes through which disability-based employment discrimination may freely slip. An enforcement regulation promulgated by the Equal Employment Opportunity Commission (EEOC) enables such circumvention of the ADA by creating an additional prima facie requirement: a plaintiff must not only be able to perform the essential functions of the position as required by the statute, but must also satisfy all job-related requirements of the position as demanded by the EEOC’s 29 C.F.R. 1630.2(m). Thus, in cases where a plaintiff’s failure to satisfy job prerequisites is discovered only after the alleged discrimination, 29 C.F.R. 1630.2(m) still permits (indeed, requires) dismissal. In light of the Supreme Court’s rejection of after-acquired evidence as a bar to employment discrimination claims in other contexts, action must be taken to eradicate this ADA escape clause. Although the EEOC advocates abandoning its regulation in favor of the ADA’s less stringent standard in certain circumstances, its proposed method usurps the applicable burden-shifting framework and sets the stage for prima facie overload on the plaintiff.

This Note proposes a more straightforward alternative approach: legislative action should be taken to enable reversion to the ADA’s singular essential functions standard in instances where a plaintiff’s failure to satisfy job-related requirements (1) is discovered only after the alleged discriminatory employment action, and (2) constitutes the sole flaw in the prima facie case.