ONLINE INVESTIGATIONS AND THE AMERICANS WITH DISABILITIES ACT: THE RESURGENCE OF OVERBROAD AND INEFFECTUAL MENTAL HEALTH INQUIRIES IN CHARACTER AND FITNESS EVALUATIONS

Bernice M. Bird

Abstract

Nationally, state board bar examiners’ interest to inquire into mental health has been a hotly contested issue invoking the Americans with Disabilities Act (ADA) for the last two decades. After the enactment of the ADA in 1990 a floodgate of litigation resulted in a litany of publications, all surrounding the issue of whether mental health based inquiries into character and fitness violated the ADA. Consequently, narrowly tailored mental health inquiries into specific disorders emerged as the trend in a majority of jurisdictions. This comment analyzes whether fitness boards' mental health inquiries among social networking profiles may cause the resurgence of overbroad and ineffectual investigations previously proscribed by federal courts interpreting the ADA. Conduct-based online investigations are proposed to effectively prevent future violations of the ADA onto applicants with mental health disabilities.