Monday, February 25, 2013
Widiss on the Pregnancy Discrimination Act and the ADA
New on SSRN: Deborah A. Widiss, Gilbert Redux: The Interaction of the Pregnancy Discrimination Act and the Amended Americans with Disabilities Act (U.C. Davis L. Rev., forthcoming). The abstract:
Pregnancy — a health condition that only affects women — raises complicated questions regarding the interaction of employment policies addressing sex discrimination and those addressing disability. The Pregnancy Discrimination Act (PDA), enacted in 1978, mandates that employers “shall” treat pregnant employees “the same for all employment-related purposes” as other employees “similar in their ability or inability to work.” Despite the clarity of this language, some courts permit employers to treat pregnant employees less favorably than employees with other health conditions, so long as the employer does so pursuant to a “pregnancy-blind” policy such as accommodating only workplace injuries or disabilities protected under the Americans with Disabilities Act (ADA). Under this reasoning, recent amendments expanding the scope of disabilities covered by the ADA could have the perverse effect of decreasing employers’ obligations to pregnant employees. This Article argues that these decisions misinterpret the PDA. The same treatment clause creates a substantive, albeit comparative, accommodation mandate. Rather than focusing on the presence or absence of discriminatory intent, courts should simply assess whether the employer has, or under the ADA would be required to, accommodated limitations like those caused by pregnancy. This approach appropriately incorporates consideration of the costs that accommodations impose on employers but insulates that inquiry from still persistent misconceptions regarding pregnant women’s capacity and commitment to work.
This Article is the first to consider in depth how the 2008 amendments to the ADA interact with the PDA. In addition to providing textual analysis, the Article provides historical context that helps confirm that the PDA means what it says. Commentary on the PDA generally characterizes the statute’s same treatment language as a response to some feminists’ concerns that requiring “special” accommodations for pregnancy would increase the risk of discrimination or backlash against women generally. This Article contributes to the historical literature on the PDA by identifying a distinct — complementary but largely overlooked — benefit of the PDA’s same treatment language: it came on the heels of an extraordinary expansion of employer and government support for health conditions other than pregnancy. Thus, although the PDA does not itself require specific pregnancy accommodations, its enactment required many employers to provide far more robust support for pregnancy than they had previously. This historical context has direct relevance for contemporary doctrine, since it is closely analogous to the recent expansion of the ADA. The unduly narrow conception of comparators currently used by some courts interpreting the PDA risks relegating pregnancy once again to the basement.
Widiss is a really terrific young employment discrimination scholar, and the issue addressed in this very nice paper is exceptionally important. Very much worth a read.
Wednesday, February 20, 2013
Obama Administration to Finalize Home-Care Workers' Wage-and-Hour Rules?
So says The Hill. (Thanks to Alice Wong for the tip!) Its article begins:
The Obama administration is moving forward with a contentious and long-dormant proposal to institute minimum wage and overtime standards for the in-home healthcare industry.
Enactment of the regulations, which are under final review at the White House, would represent a major victory for unions that have fought for decades to win higher pay for direct-care aides.Just to be clear, it's not just industry groups that have raised concerns about earlier versions of this rule, but also disability rights groups, which fear that substantially raising the cost of personal assistance services without increasing Medicaid reimbursements will force people with disabilities into nursing homes. See these comments from DREDF as an example. It will be interesting to see how the Department of Labor responded to the disability community's concerns.
But industry groups warn that the rule would cause home-care expenses to skyrocket, hurling an otherwise healthy sector of the economy into upheaval.
Friday, February 15, 2013
Governor Patrick Moves to Vacate Court Order Allowing Judge Rotenberg Center to Use Aversives
This is big news (via a press release from Mass. State Senator Brian Joyce):
In 1987, a settlement was reached between the JRC and the Commonwealth allowing the continued use of aversives. The court order was supposed to be vacated in 1988, but was extended indefinitely because the JRC was not yet licensed a year after the order’s issuance. At the time, the GED skin shock devices were not yet in use and aversive therapy consisted of water sprays, taste aversives, muscle squeezes, spanks, pinches and restrained time outs. The JRC continually defends its actions based on this court order, and claims that it denies the Department of Developmental Services (DDS) the right to regulate or prohibit the use of the painful skin shocks and other aversives.
“Our motion would vacate the 1987 court order, which is outdated and inconsistent with the current state of behavioral treatment for persons with disabilities,” said Alec Loftus, communications director for the Department of Health and Human Services. “JRC is the only provider in the country that uses electric skin shocks to control behavior in children and adults with intellectual disabilities. In response to Governor Patrick's concerns about these treatments, the Administration filed regulations in 2011 to ban the use of aversive therapies for any student who was not already receiving them through a court-approved treatment plan. As a result, no new behavioral plans with aversive therapies have been put into place since those regulations went into effect. Our goal is to ensure that all individuals in the Commonwealth receive safe treatments, in line with best practices in the medical field, and we are optimistic that the court will rule in our favor."
On Thursday, the Commissioners of DDS and the Department of Early Education and Care, as represented by the Attorney General’s Office, filed a motion to remove the court order and subject the JRC to the rules and regulations put forth by the departments. Since the original court order, the accepted standard of care has evolved drastically. Currently, professional opinion overwhelmingly believes that aversive therapies are substantially more intrusive and restrictive than alternative treatments. DDS regulations require programs like the JRC use the least intrusive and restrictive options available. Subjecting the JRC to these regulations would likely mean the elimination of the painful GED devices because they are “professionally unnecessary and inappropriate” and are “detrimental to the public interest.”
Labels: Restraint and Seclusion
Wednesday, February 13, 2013
Porter on Accommodating Caregiving
Just up on SSRN: Nicole B. Porter, Mutual Marginalization: Individuals with Disabilities and Workers with Caregiving Responsibilities. The abstract:
This paper explores the marginalization of two groups of employees — individuals with disabilities and workers with caregiving responsibilities. One might argue that these two groups have little in common. In fact, however, while not perfectly aligned, these two groups of individuals have much in common in the workplace. First, these employees are unable to consistently meet their employers’ expectations of an “ideal worker.” Thus, they often must seek adjustments or modifications in the workplace to accommodate for their failure to conform to the ideal worker norm. This causes both groups of employees to suffer from “special treatment stigma,” which manifests itself in resentment by co-workers because of the special benefits these employees receive and in employers’ reluctance to hire individuals belonging to these groups because of the real or perceived increased costs of employing such individuals. Despite these similarities, the law has dealt with these two groups of employees very differently. Individuals with disabilities are entitled to broad protection in the workplace, including the rather unique reasonable accommodation provision in the Americans with Disabilities Act. On the other hand, despite some laws protecting some aspects of pregnancy and caregiving, workers with caregiving responsibilities do not enjoy the same broad protection as individuals with disabilities.
In this paper, I will explore why the law treats these groups of employees differently. I will address many of the concepts that are thought to distinguish individuals with disabilities and workers with caregiving responsibilities and are therefore used to justify their different treatment under the law. But I will ultimately conclude that these distinctions, once unpacked, do not justify the law’s different treatment of these two groups. Moreover, these differences are not as significant as the similarity that binds these two groups together — the special treatment stigma. Thus, I will explore whether a combined legal and theoretical approach to eliminating the special treatment stigma is feasible and defensible. Specifically, I seek to provide theoretical justification for the reasonable accommodation provision under the ADA and argue that the same justification can be used to support an accommodation mandate for workers with caregiving responsibilities.
Disability Rights Groups (and SEIU) Urge FDA to Bar Electric Shocks at Judge Rotenberg Center
See this letter, signed by a very broad assortment of disability rights organizations and by the Service Employees International Union (which has been a great ally of disability rights causes). It begins:
We, the undersigned representatives of the disability and human rights community, are writing to express our gratitude for your recent actions regarding the Judge Rotenberg Center in Canton, Massachusetts. It is our hope that the FDA will continue to lead policy changes to eliminate the use of contingent electric shock and other aversive interventions. Aversives – the use of pain as a means of behavior modification – are an inherently unsafe and unsupported type of medical treatment. The FDA’s efforts to address this issue are welcomed and we urge you to continue to expand your activities in this area.
In particular, the FDA should undertake further action to prevent the continued use of all Graduated Electronic Decelerator (GED) devices on residents at the Judge Rotenberg Center. We recommend the immediate revocation of “cleared” status for the GED-1, in light of the long track record of evidence showing its lack of safety. Furthermore, we recommend refusal to grant “cleared” or “approved” status for other iterations of the GED, including the GED-3A and the GED-4.
In order to prevent continued use of these unapproved and potentially dangerous devices on residents, the Judge Rotenberg Center should be ordered to immediately end usage of all GED devices. These devices are used for the stated purpose of aversive behavioral modification – inflicting pain on students when they engage in unwanted behavior. However, there is no empirical evidence that suggests the shocks are effective as a form of treatment in addressing these behaviors. Furthermore, staff members at the Judge Rotenberg Center have been documented to frequently apply the GED as punishment for behaviors that do not endanger residents or others, in direct contravention to its claimed purpose. These abuses are not the actions of isolated individuals but relate to documented policies and practices that are core to the planned use of the GED device.
European Disability Forum Proposes European Accessibility Act
See this package, which includes a position paper and other information. The introduction:
In the framework of the EDF Top Campaign on the theme of “Freedom of Movement”, one of our objectives has been to promote the adoption of an ambitious and legally binding European Accessibility Act. In these terms, EDF welcomes the European Commission’s initiative to issue an Act and presents the views of the disability movement on this upcoming European Accessibility Act.
The accessibility of goods and services is a key factor for the quality of life of persons with disabilities and a lot of work still remains to be done in order to achieve it. Persons with disabilities cannot fully enjoy their rights to free movement as they face major obstacles preventing them from accessing mainstream goods and services as easily as any other EU citizen. In this respect,EDF published a Freedom Guide, which contains examples of obstacles faced by persons with disabilities, as well as reactions from policy makers and the industry. Initiatives of the European Commission are necessary as it is unacceptable that freedom of movement, a fundamental principle of the EU, is undermined by a lack of accessible goods and services. Equality between men and women should also be one of the guiding principles of the Act, which implies the mainstreaming of gender in the future legislation and supporting measures.
The Act represents an opportunity for the Commission to implement the UN Convention on the Rights of Persons with Disabilities (UN CRPD), which has been signed by all Member States and ratified by a majority of EU countries and by the EU itself. The political will and ambition of the European Commission and subsequently of the European Parliament and the Council will be a test of the real commitment of the EU to the implementation of the UN CRPD. We consider that only an ambitious and legally binding Act based on the principles stated in the UN CRPD and covering as many services and goods as possible could be a first step to implement the accessibility provisions of the UN CRPD.
Tuesday, February 12, 2013
Fenton on Race and Disability Labeling
Just out: Zanita E. Fenton, Disabling Racial Repetition, 31 Law & Ineq. 77 (2012). From the introduction:
Because of institutionalized racism, combined with institutionalized ableism, extreme numbers of Black boys receive inadequate education. Black children, especially boys, are disciplined, suspended, and expelled when it is least likely that their parents will challenge the outcome; this most often is the case when their parents are in poverty. When the parents of a Black child are more affluent and generally more engaged in the educational welfare of their child -- often by challenging disciplinary measures -- there is an increased likelihood that their child will be diagnosed as intellectually disabled (formerly known as mental retardation) or emotionally disturbed. The effect of this dynamic is that Black children are expelled whenever feasible. When it is less than practicable, as when the parents are more affluent, the child is placed in an educational category that permits segregation from the general population, and is thereby placed in a position to receive inferior services and education.
* * *
Comprehension of the reoccurring, yet indefensible, disproportionate labeling of Black boys as intellectually disabled may be found in the labyrinth of structures perpetuated by laws, policies, and institutions that operate to ensure the continued subordinated status of groups based on race and disability, each used to reinforce the other. The repetition of disproportionate labeling of Black boys in the categories of intellectual disability and emotional disturbance is only symptomatic in a range of social repetitions related to education that operate to continue subordination of certain groups, most often defined by race, class, and disability status. Punishment for marginalized students is too often preferred over inclusion and needs-based education, preconditioning entry into the criminal justice system. There are also repetitions in the differential delivery and inferior quality of education. Racial segregation continues both between school districts and within single schools.
This crisis in education is situated at the juncture of social bias, inertial education policy, and malleable legislation. This essay seeks to illuminate the interaction of some relevant variables which routinely return to the original status. Part I engages in basic logic and light economic analyses to understand how, despite the fact that realization of universal education would maximize individual potential to the benefit of society, education has become a focus of social competition. Part I also describes the role of Brown I in both promising educational reform while simultaneously allowing restoration of the original predicament. Part II examines the exploitation of the interaction between socially subordinated categories to perpetuate those forms of subordination. It first focuses on the role of case law and legislation in this ecosystem. It then discusses forms of social bias that serve as the basis for the discretion of relevant actors in the administration and delivery of education. Part III focuses on the No Child Left Behind Act and the manner in which it has intensified mis-education of all children and deepened levels of inequality in education. To conclude, Part IV laments the inadequacy of reform efforts that are sometimes more harmful than the subject of those reforms. It also ties mis-education to the other prevalent social disproportions for both persons of color as well as individuals with intellectual disabilities. It ends with a plea that future reform efforts struggle more intensely and effectively to accomplish the goal of equality in education.
Wagstaff on Segways at Disneyland (and Everywhere Else)
My friend and former DOJ colleague Brandy Wagstaff has just published this piece: Brandy L. Wagstaff, Make Way for Segways: Mobility Disabilities, Segways, and Public Accommodations, 20 Geo. Mason L. Rev. 347 (2013). The introduction:
“Segways at Disneyland? Could happen.” So sayeth Chief Judge Alex Kozinski of the Ninth Circuit. But, before anyone gets too excited, let us take a step back and really assess the possibility that we will see individuals cruising on Segways all over Disneyland, Disney World, or even your local mall.
The question boils down to: Should Segways be treated like wheelchairs? And, if not, why not?
The answer lies in 28 C.F.R. § 36.111--the U.S. Department of Justice's (“DOJ”) newly revised regulation under Title III of the Americans with Disabilities Act (“ADA”) as applied to mobility devices for persons with mobility disabilities. And this answer really matters to certain individuals with particular mobility conditions, such as multiple sclerosis and Parkinson's disease, who might prefer to use a Segway as a means of mobility in public places like malls or amusement parks, instead of a traditional wheelchair or scooter.
Recently, the Ninth and Eleventh Circuits struggled with the application of this regulation, and while these two decisions are not necessarily in conflict with each other, they implicate some issues that help make sense of this interesting question. In Part I, this Essay sets forth the applicable law and examines the questions that courts, the DOJ, and places of public accommodation must answer in order to decide whether they can ban devices like Segways. Part II examines the two recent decisions involving Segways in the courts of appeals. Finally, Part III analyzes the particular case of Segways at Disneyland and whether the courts (and Disney) reached the correct decision.
Zirkel on Public Schools' Impartial-Hearing Obligations Under Section 504
Just out: Perry A. Zirkel, The Public Schools' Obligation for Impartial Hearings Under Section 504, 22 Widener L.J. 135 (2012). The abstract:
This article provides an in-depth examination of the legal sources and current practices specific to impartial hearings under Section 504 of the Rehabilitation Act for students in the K-12 public school context. In contrast to the Individuals with Disabilities Education Act (IDEA), this broader and overlapping statute and its regulations has received insufficient attention, particularly in terms of its impartial hearing mechanism and in light of its foreseeably increasing utilization. Part II of the article examines the Section 504 statute, regulations, and resolution avenues available under Section 504 other than the impartial hearing route. Part IV canvasses hearing officer decisions and available judicial case law, with special attention to jurisdiction. Part V provides a summary of (a) state laws and (b) state education agency policies and practices specific to the jurisdiction of IDEA impartial hearing officers for Section 504 student issues. The final part proposes a more clear and coherent framework for impartial hearings under Section 504 in relation to those under the IDEA.
Student Note on Accessibility and Intellectual Property
Just out: Mary Bertlesman, The Fight for Accessible Formats: Technology as a Catalyst for a World Effort to Improve Accessibility Domestically, 27 Syracuse Sci. & Tech. L. Rep. 26 (2012). The abstract:
This note addresses the proposed WIPO International Instrument on the Limitations and Exception for Persons with Print Disabilities. I conclude that the current growth in technology - making previously inaccessible works accessible -- calls for a change to current domestic copyright law and that ratification of the proposed treaty should be this change.
The proposed treaty compliments the growth of adaptive technology and the need for accessibility by permitting the creation of limited types of derivative works; providing rights to circumvent technological protection measures; and granting the freedom of import and export of accessible works. Furthermore, the proposed treaty compliments current disability law in the sense that it mirrors the legislative intent to provide a clear and comprehensive mandate for the elimination of discrimination against individuals with disabilities, including discrimination in access to information.