Hindsight Is 20/20: Epilepsy Is Not One-Size-Fits-All

For many, epilepsy is one of the first conditions that come to mind when thinking of a disability, and for good reason: over 50 million people in the world live with epilepsy. Yet misunderstandings about epilepsy have perpetuated social stigma surrounding the disability for centuries. Ableist beliefs led to the passage of laws in the 1900s condoning—and in some cases, requiring—sterilization of individuals with epilepsy and restriction of their right to marry. Even today, state driving laws, justified as promoting public safety, categorically prevent anyone diagnosed with epilepsy from driving unless they are seizure free for an arbitrary, nonuniform period of time. Congress intended the Americans with Disabilities Act of 1990 (ADA) and the subsequent ADA Amendments Act of 2008 to remedy institutionalized ableism, including in the workplace. Decades later, these laws have failed. Despite the clear legislative intent to provide broad protection for people with disabilities, courts have succumbed to the unrelenting stigma surrounding disabilities, and their decisions have been driven by fundamental misunderstandings of the disabilities they are considering. Courts have repeatedly failed to conduct an individualized assessment, as required under the ADA, to determine what an employee with epilepsy can or cannot do. Instead, they treat people with epilepsy as a single, homogeneous group without any consideration of each individual’s unique circumstances—circumstances shaped by the type of epilepsy an individual has, the type of seizures they suffer, and the way their epilepsy manifests. Courts’ treatment of people with epilepsy contrasts starkly with their treatment of people with visual impairments. Where courts understand that visual impairments exist on a spectrum, they fail to recognize that the same is true of epilepsy. This Note argues that courts must view epilepsy on a spectrum and conduct a proper, individualized assessment under the ADA to ensure that employers do not categorically exclude individuals with epilepsy. This Note also calls for courts to conduct an individualized assessment when employers raise the “direct threat” affirmative defense to justify such exclusion. Understanding that epilepsy affects each person differently will help dispel negative stereotypes and better ensure adequate protection for those with epilepsy. After all, epilepsy is not one-size-fits-all.