Wednesday, March 23, 2005

Rulli & Leckerman on Poverty, Disability, and ADA Title I

New on Westlaw: Louis S. Rulli & Jason A. Leckerman, Unfinished Business: The Fading Promise of ADA Enforcement in Federal Courts Under Title I and its Impact on the Poor, 8 J. Gender Race & Just. 595 (2005). From the introduction:

In this article, we explore the relationship between enforcement of the ADA in federal courts and the reasons that the ADA has not, so far, been as successful in opening the doors of the workplace as many had hoped. In doing so, we emphasize how the ADA's failure to live up to its potential in this respect has had, and will continue to have, great ramifications for people who are poor. We have divided the article into two parts. Part I analyzes the general goals of the ADA and the success that the ADA has had in achieving those goals. We begin our analysis by discussing Professor Thomas Stoddard's thoughtful framework for analyzing legislation in which he identified the narrow rule-shifting capacity and the much broader culture-shifting capacity of law. We conclude that the ADA was intended to be culture-shifting. Next, we measure the success of Title I and the other provisions of the Act in achieving this goal and conclude that the ADA, mainly due to the failure of Title I to play its part, has only partially begun to fulfill its culture-shifting purpose and likely will not be able to achieve this ultimate goal without substantial change. We then address why Title I's contributions to a culture shift have failed to materialize. In doing so, we focus heavily on judicial outcomes in filed cases under Title I. We compare our findings with those of other published studies assessing reported cases under Title I and conclude that, year after year, employers continue to win in 92% to 97% of cases that reach a final judicial outcome. We close the first part of our article by examining the impact that such one-sided outcomes have on the willingness of lawyers to undertake new federal litigation under Title I. Relying on current statistical evidence, we conclude that lawyers are quickly retreating from Title I enforcement in our federal courts.

In the second part of the Article, we look more closely at the nexus between disability and poverty and ask whether the poor are able to confront discrimination in the workplace by turning to the federal courts. We discuss the special problems that the poor face in obtaining access to counsel and in trying to litigate on their own. Once again, based on statistical evidence, we conclude that poor people with disabilities have largely turned away from federal courts as a means of enforcing their rights under Title I.

Finally, in an epilogue, we summarize our findings and offer some suggestions that, if adopted, might bring us closer to the day when culture-shifting change arrives in the workplace for people with disabilities.
My recent work has a somewhat different take on these problems, but the problems are certainly important.


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