Befort Empirically Analyzes Case Outcomes Under the ADAAA

New on SSRN: Stephen F. Befort, An Empirical Analysis of Case Outcomes Under the ADA Amendments Act, 70 Wash. & Lee L. Rev. ___ (forthcoming).  The abstract:

Congress enacted the ADA Amendments Act (ADAAA) in order to override four Supreme Court decisions that had narrowly restricted the scope of those protected by the Americans with Disabilities Act (ADA) and to provide "a national mandate for the elimination of discrimination." This article undertakes an empirical examination of the impact of the ADAA on case outcomes. The recent reported cases provide a unique opportunity for such an examination since, with the ADAAA not retroactively applicable to cases pending prior to its effective date, courts have been simultaneously deciding cases under both the pre-amendment and post-amendment standards. This study examines all reported federal court summary judgment decisions arising under Title I of the ADA for a forty-month period extending from January 1, 2010 to April 30, 2013. The study coded the pre-ADAAA and post-ADAAA decisions for both disability standing determinations and for rulings on whether the plaintiff was qualified for the job in question. These preliminary data show that the federal courts are granting employers a significantly smaller proportion of summary judgment rulings under the ADAAA on the basis of a lack of disability status. In addition, the ADAAA decisions exhibit a greater prevalence of rulings on the issue of whether the plaintiff is a qualified individual. On the other hand, the post-amendment decisions show an increased tendency for the courts to find that the plaintiff is not qualified. While the rate of increase in plaintiff victories on the disability issue is outpacing the rate of increase in plaintiff losses on the qualified issue, the latter phenomenon suggest a continuing judicial unease with disability discrimination claims generally and with reasonable accommodation requests more specifically.

Stein, Silvers, Areheart, and Francis on Accommodating Every Body

The all-star crew of Michael Stein, Anita Silvers, Brad Areheart, and Leslie Francis has this new piece forthcoming in the University of Chicago Law Review entitled Accommodating Every Body.  Check out the abstract:

This Article contends that workplace accommodations should be predicated on need or effectiveness instead of group identity status. It proposes “accommodating every body” by extending an Americans with Disabilities Act reasonable accommodation mandate to all work-capable members of the general population for whom accommodation is necessary to enable their ability to work. Doing so shifts the focus of accommodation disputes from the contentious identity-based contours of “disabled” plaintiffs to the core issue of alleged discrimination. This proposal likewise avoids current problems associated with excluding “unworthy” individuals from employment opportunity — people whose functional capacity does not comply with prevailing workforce design and organizational presumptions — and who therefore require accommodation. Adopting this proposal also responds to growing demands to extend the length of time people remain at work by enhancing employment opportunities for aging individuals still capable of contributing on the job. Provision of accommodations for age-related alteration of functionality, when the accommodations are effective, is reasonably prescribed because everyone hopes to retain maximum capabilities as they grow older, whether or not they also possess identity-based characteristics sufficient to constitute a “disability” under the ADA.

I make a similar argument at points in my book (check the link on the right), so I'm obviously sympathetic to the argument.  Check it out!

Interesting Article on the Construction of Disability in China

New on SSRN: Yee-Fui Ng, Disability Rights v. Quality Birth Rhetoric: The Construction of Disability in China, (2012) LAWASIA Journal 1.  The abstract doesn't really tell you much, but here's an excerpt from the paper:

This article explores the tension between China’s strong engagement in the area of disability, and the widespread acceptance in China of the importance of ‘quality birth’ (or suzhi) and the resultant perceived need to reduce the number of disabled babies being born.5 This article aims to explore this tension by critically analysing the laws and government rhetoric on disability rights, against the ‘quality birth’ laws and rhetoric, which include laws sanctioning sterilisation of disabled couples. At a broader level, the article examines the strategic way in which the Chinese government uses the language of disability in the two separate strands of disability discourse. In doing this, the article also sheds light on how the disabled are defined, administered, policed and governed in postsocialist China.

I argue that although at face value the Chinese government’s emphasis on disability rights and the simultaneous focus on ‘quality births’ seem to be diametrically opposed, these separate rhetorical strands work harmoniously with each other due to the pervasive influence of suzhi or ‘quality’ on the government and the Chinese population. My contention is that the combined effect of government policy in the area of disability is that there will be fewer people born with disabilities in Chinese society, as pre-birth disabilities are to be prevented through abortion to increase the ‘quality’ of the population, while those disabled post-birth are rehabilitated under the Chinese government’s disability rights efforts to contribute to the socialist regime. I also argue that as the concept of ‘quality’ strongly permeates contemporary Chinese society, where the Chinese public self-regulate, their behaviour and goals are aligned with the government to reduce perceived ‘low quality’ births; thus disabled foetuses are more likely to be aborted.

Hoffman on Sheltered Workshops

Just out: Laura C. Hoffman, An Employment Opportunity or a Discrimination Dilemma? Sheltered Workshops and the Employment of the Disabled, 16 U. Pa. J. L. & Soc. Change 151 (2013).  From the introduction:

In January 2011, a U.S. disability rights organization, National Disability Rights Network (NDRN), published a report that criticizes the use of certain employment practices involving people with disabilities. Within the report, NDRN argues that the continued use of these practices amounts to the systemic discrimination of the disabled in employment, rather than to the assured provision of civil rights protections for the disabled. One of these practices is the use of sheltered workshops, which are “facility-based day programs attended by adults with disabilities as an alternative to working in the open labor market.” By providing relatively simple work activities and customized educational programs, these workshops may be designed to assist the disabled with finding long-term employment or transitioning into the open labor market. However, according to the Executive Director of NDRN, “[s]heltered workshops are not what they promise to be, and sometimes serve as an unsettling example of how good intentions can lead to terrible outcomes.” This report was only the beginning for NDRN on this issue; the organization released another report in April 2012 containing even more criticism for the use of sheltered workshops as an employment option for people with disabilities, bringing even greater attention to this issue both within the disability community and across the United States.  

The U.S. also has a number of federal laws designed to ensure equal opportunity in employment for people with disabilities. Most notably, Title I of the Americans with Disabilities Act (ADA) prohibits discrimination against the disabled in all aspects of employment for covered entities. Despite these protections, many of the employment practices implemented for the benefit of the disabled do not actually result in additional equal employment opportunities. Recent statistics released by the Bureau of Labor Statistics (BLS) at the U.S. Department of Labor paint a dismal picture for the overall employment prospects of people with disabilities. According to the BLS report, “[i]n 2011, 17.8 percent of persons with a disability were employed . . . . [i]n contrast, the employment-population ratio for persons without a disability was 63.6 percent.” Moreover, the disabled population continued to show greater joblessness than the non-disabled population through June 2012, according to statistics compiled on a monthly basis for U.S. employment overall.  

Given these troubling statistics, it is necessary to ask whether sheltered workshops are a relevant and successful means of encouraging the employment for the disabled today. Do sheltered workshops represent an antiquated view of people with disabilities and continue what was thought to be an outdated mentality concerning those with disabilities and their ability to participate in society, especially in terms of employment? Or, do sheltered workshops provide something of value and worth to the disabled, by at least providing the opportunity for employment? This Article reexamines the use of sheltered workshops for the employment of the disabled and what this use means for the current legal protections in employment available to individuals with disabilities.

Pergament on Choice in Prenatal Testing and Special Education

Just out: Deborah Pergament, What Does Choice Really Mean? Prenatal Testing, Disability, and Special Education Without Illusions, 23 Health Matrix 56 (2013).  From the introduction:

Debates over prenatal testing, disability, and public education are at the very center of my everyday work as an attorney. My legal practice focuses on representing children and families in complex special education and adoption law matters. Many of the children I represent are affected by genetic syndromes, chromosomal abnormalities, spina bifida and other neural tube defects, or disabilities caused by pregnancy, birth, and neonatal complications. I also advise several educational, medical, and social service organizations. This work involves counseling medical geneticists and genetic counselors who provide prenatal genetic testing services and develop new genetic technologies.

Through these experiences, I am uniquely able to observe and participate in the debates over the ethical and legal parameters that govern women’s choices about prenatal testing and the responsibilities of individual families and society in caring for the wellbeing of children with disabilities. This Article considers the experiences of families with children affected by genetic conditions and the issues raised by prenatal genetic testing technologies. It raises questions about the appropriateness of state involvement in the choices women make about prenatal testing, particularly under the Prenatally and Postnatally Diagnosed Conditions Awareness Act of 2008.

Paradoxically, those political and social actors that most often seek to involve the state in reproductive choice also support the privatization of responsibility for the care and education of children with disabilities. As a result, the privacy right relating to intimate relationships, the family, and decisions about whether to have a child is becoming less absolute. I argue that this is not accidental, as the expansion of public surveillance and regulation of women’s reproductive decisions and the related demonizing of the exercise of reproductive choice has diverted attention from efforts to provide for the social welfare by developing the necessary response of a just society. Such a response should involve: (1) the promulgation of rational regulations governing the development, access, and use of existing and emerging prenatal genetic screening and diagnostic technologies; and (2) the development of policies that give all children, including ones affected by genetic disorders, access to meaningful educational opportunities and health care.

Ruth Colker's New Book on the IDEA

Ruth Colker just sent along a note that her new book, Disabled Education: A Critical Analysis of the Individuals with Disabilities Education Act, is just days from being released.  Here's the publisher's synopsis:

Enacted in 1975, the Individuals with Disabilities Education Act (IDEA) provides all children with the right to a free and appropriate public education. On the face of it, the IDEA is a shining example of law’s democratizing impulse. But is that really the case? In Disabled Education, Ruth Colker digs deep beneath the IDEA’s surface and reveals that the IDEA contains flaws that were evident at the time of its enactment that limit its effectiveness for poor and minority children. 

Through an examination of the evolution of the IDEA, the experiences of children who fought for their education in court, and social science literature on the meaning of “learning disability,” Colker reveals the IDEA’s shortcomings, but also suggests ways in which resources might be allocated more evenly along class lines.

Ruth is one of the most important and interesting scholars writing on the IDEA.  Though I don't always agree with her take on the issues, I often do, and I always benefit from reading her work.  Check her new book out!

Perlin on the CRPD and Guardianship

Just out: Michael L. Perlin, “Striking for the Guardians and Protectors of the Mind”: The Convention on the Rights of Persons with Mental Disabilities and the Future of Guardianship Law, 117 Penn. St. L. Rev. 1159 (2013).  The abstract:

In many nations, entry of a guardianship order becomes the “civil death” of the person affected because persons subjected to such measure are not only fully stripped of their legal capacity in all matters related to their finance and property but are also deprived of many other fundamental rights, including the right to vote, the right to consent or refuse medical treatment (including forced psychiatric treatment), freedom of association, and the right to marry and have a family. The United Nations’ ratification of the Convention on the Rights of Persons with Disabilities (CRPD) radically changes the scope of international human rights law as it applies to all persons with disabilities, and in no area is this more significant than in the mental disability law context. And there is no question that the CRPD speaks to the issue of guardianship. This article examines what impact, if any, the CRPD and other international human rights documents will have on guardianship practice around the world. This question is of great importance given the common usage of this status and the lack of procedural safeguards that attend the application of this status in many nations.

This article begins by examining why guardianship is considered “civil death” in much of the world before discussing the possible impact that the CRPD will have on the application of guardianship laws. Issues discussed include the need for some mechanism to insure the appointment of counsel to persons facing guardianship; the need for a mechanism to insure that, in those cases in which guardianship is inevitably necessary, “personal” guardians will be appointed instead of institutional ones; the need for domestic courts—in all parts of the world—to take these issues seriously when they are litigated on a case- by-case basis; and the inevitable problems that will arise in the Asia and Pacific region, where there is no regional court or commission at which litigants can seek CRPD enforcement. Finally, this article considers the impact of therapeutic jurisprudence on the questions at hand, and concludes by looking again at the CRPD as a potentially emancipatory means of restructuring guardianship law around the world.

  

Forthcoming Student Note on Internet Accessibility

New on SSRN: Courtney L. Burks, Improving Access to Commercial Websites Under the Americans with Disabilities Act and the Twenty-First Century Communications and Video Accessibility Act, Iowa Law Review, forthcoming.  The abstract:

In 1990, Congress enacted the Americans with Disabilities Act ("ADA") — one of the most comprehensive set of antidiscrimination laws to date. Title III of the ADA requires private businesses to make reasonable efforts to ensure that disabled individuals are able to access their "place[s] of public accommodation." However, as the internet has grown more ubiquitous in Americans’ lives, there have been debates whether a commercial website is a place of public accommodation under Title III. In order to help ensure that the disabled community is not left behind as the nation’s dependence on web-based technology increases, Congress enacted the Twenty-First Century Communications and Video Accessibility Act ("CVAA"). This Note examines conflicting interpretations of Title III, and how the CVAA may affect the ADA’s application to commercial websites. This Note concludes by arguing that a broad definition of “place of public accommodation” is in line with the history and purpose of the ADA, and federal regulations imposing uniform technical accessibility standards are needed in order to diminish the accessibility barriers to websites that fall within the scope of Title III.

Malhotra and Neufeld on Growth Attenuation

Up on SSRN: Ravi Malhotra & Katharine R. Neufeld, The Legal Politics of Growth Attenuation, Windsor Rev. Legal & Soc. Issues (forthcoming).  The abstract:

In this article, we consider the implications of growth attenuation should it ever arise in the Canadian context. While parental autonomy to make crucial health care decisions and exercise control over minors is not a right that should be lightly dismissed, we argue that growth attenuation is entirely inappropriate and should never be regarded as ethically permissible for children. We ground our perspective in the social model of disablement which stands for the proposition that it is structural barriers that are chiefly responsible for the marginalization experienced by people with disabilities in every area of social life including employment, transportation, and housing. Critical disability theory applies the social model to new public policy problems and we regard our intervention as a modest attempt at rethinking a bioethical dilemma through the prism of critical disability theory. We do so through a review of the case law and through a consideration of relevant ethical principles, paying particular attention to the scholarship of Martha Nussbaum’s theories of equality for people with intellectual disabilities.

Johnston on Sentencing and Mental Illness

Up on SSRN: E. Lea Johnston, Vulnerability and Just Desert: A Theory of Sentencing and Mental Illness, 103 J. Crim. L. & Criminology 147 (2013).  The abstract:

This Article analyzes risks of serious harms posed to prisoners with major mental disorders and investigates their import for sentencing under a just deserts analysis. Drawing upon social science research, the Article first establishes that offenders with serious mental illnesses are more likely than non-ill offenders to suffer physical and sexual assaults, endure housing in solitary confinement, and experience psychological deterioration during their carceral terms. The Article then explores the significance of this differential impact for sentencing within a retributive framework. It first suggests a particular expressive understanding of punishment, capacious enough to encompass foreseeable, substantial risks of serious harm proximately caused by the state during confinement and addresses in particular the troublesome issue of prison violence. It then turns to just desert theory and principles of ordinal and cardinal proportionality to identify three ways in which vulnerability to serious harm may factor into sentencing. In so doing, the Article advances the current debate about the relevance of individual suffering to retributivism and lays the theoretical groundwork for the consideration of vulnerability due to mental illness as a morally relevant element in sentencing decisions.

Weber on All Areas of Suspected Disability

Disability law maven and IDEA expert Mark Weber has just posted this paper on SSRN: Mark C. Weber, All Areas of Suspected Disability, Loyola L. Rev. (forthcoming).  The abstract:

The Individuals with Disabilities Education Act (IDEA) requires school districts to assess children “in all areas of suspected disability.” It further provides that each child’s individualized education program (IEP) must contain measurable annual goals designed to “meet each of the child’s...educational needs that result from the child’s disability,” and a statement of special education and related services that will be provided for the child “to advance appropriately toward attaining annual goals.”

Courts have strictly enforced these requirements in the last several years, remedying violations of IDEA when school districts fail to assess in all areas of suspected disability or do not establish goals and services to meet each of the child’s needs resulting from the disability. This Article offers three interpretations of this recent development. First, what the courts are doing may represent an effort to enforce provisions of IDEA that stand apart from the limited reading that a 1982 Supreme Court case placed on the requirement in the statute to provide a free, appropriate public education. Second, the development may signify a different way of looking at special education obligations under the law, one well adapted to the ever-increasing importance attached to providing services in settings that are less restrictive and maintain the greatest inclusion of students with disabilities with nondisabled students. Third, the cases might simply be a reaction to cutbacks on evaluations and services that school districts have imposed because of financial strains brought about by the Great Recession. This Article will not try to declare which of these interpretations is the correct one, and in fact all three may be true. But the Article will conclude that enforcement of these provisions furthers the underlying purposes Congress had in enacting IDEA.

Waterstone on Disability Constitutional Law

New on SSRN: Michael Waterstone, Disability Constitutional Law (Emory L.J., forthcoming).  The abstract:

As a result of fierce advocacy, people with disabilities have been uniquely successful in securing federal legislation protecting them from discrimination in all areas of life. The modern disability rights movement is engaged in a constant struggle to enforce these rights, both in and out of the courts. There has been little attention to directly using the Constitution to protect the rights of people with disabilities. In a recent project, I interviewed many of the key leaders of the disability rights movement, who confirmed that while they would like to devote more attention to constitutional issues, there is no current short- or long-term constitutional strategy. Rather, these lawyers take the Supreme Court’s decision in City of Cleburne, Texas v. Cleburne Living Center, holding that people with disabilities are only entitled to rational basis review under the Equal Protection Clause, as a given. Their attention has turned elsewhere.

This deconstitutionalization has costs. State laws still facially discriminate against people with disabilities, often people with mental disabilities. Federal legislation is an incomplete tool to challenge the exclusions these laws create. Progressive theorizing of constitutional law is happening, just not regarding disability. Although functionally justifiable, this reluctance to pursue constitutional claims impoverishes the disability rights movement, as constitutional claims engage courts in articulating our core values in a way that statutory claims do not. Disability law can and should do more to fulfill the constitution’s guarantees of Equal Protection and full citizenship. In this Article, I explore what a more progressive future for disability constitutional law might look like. Building on gains by the LGBT movement, I offer specific areas where courts should entertain a more contextualized application of the Equal Protection Clause in disability cases.

Pasachoff on Federal Education Programs (Including IDEA) After NFIB v. Sebelius

Just out: Eloise Pasachoff, Conditional Spending After NFIB v. Sebelius: The Example of Federal Education Law, 62 Am. U. L. Rev. 577 (2013).  The abstract:

In NFIB v. Sebelius, the Supreme Court's recent case addressing the constitutionality of the Affordable Care Act, the Court concluded that the Act's expansion of Medicaid was unconstitutionally coercive and therefore exceeded the scope of Congress's authority under the Spending Clause. This was the first time that the Court treated coercion as an issue of more than theoretical possibility under the Spending Clause. In the wake of the Court's decision, commentators have expressed either the concern or the hope that NFIB's coercion analysis may lead to the undoing of much of the federal regulatory state, which substantially relies on the spending power. This Article argues that both this concern and this hope are misplaced. 

Taking federal education law as a test case for future coercion analysis--since federal funding given to the states for elementary and secondary education is second only to federal funding given to the states for Medicaid--this Article concludes that NFIB's coercion inquiry is unlikely to lead to much else being found unconstitutional. The major federal education laws, and by implication other conditional spending laws, will not likely find their demise under the Court's analysis. 

Nonetheless, NFIB will likely have some effect on the future of federal education law and other laws that rely on Congress's spending powers. It  should put a damper on calls to dramatically increase federal education funding; encourage the trend towards smaller grants of limited duration, especially those that bypass the states; result in some structural changes both in funding and enforcement; and, somewhat paradoxically for a decision that found the Medicaid enforcement regime coercive, may lead to greater federal enforcement of conditional spending laws.

Anderson on Causation and Reasonable Accommodation After Gross

Just out: Cheryl L. Anderson, Unification of Standards in Discrimination Law: The Conundrum of Causation and Reasonable Accommodation Under the ADA, 82 Miss. L.J. 67 (2013).  From the introduction:

In the post-Gross regime, causation could similarly creep into another aspect of reasonable accommodation analysis--as a requirement that plaintiffs show their disability is a but-for cause of their need for the accommodation. There is case law rejecting ADA Title I employment claims because the plaintiffs could not show they needed the requested accommodations in order to do their job. The but-for test could take it a step further and require plaintiffs to show their disability is the but-for reason the accommodation itself is necessary. Although not directly the issue decided in Gross, such a rule may be a fairly simple extension of Gross's understanding of the default rules of causation. At least in the Seventh Circuit, a similar but-for standard has already crept into ADA Title II analysis. The Seventh Circuit requires Title II plaintiffs establish that their need for accommodation is based on something that is not a characteristic shared with the general public. The leap from Title II to Title I for applying such a standard may not be too large. 

Why might courts make this leap? As has been extensively discussed in the literature, reasonable accommodation law has an uneasy fit into our understanding of discrimination law. Reasonable accommodation claims do not require proof of intent to discriminate. They also do not require proof of an adverse effect on an entire group of individuals.  Courts have shown themselves uneasy about interpreting the law in a way that appears to give preference to a particular individual. This unease has been especially apparent in circumstances when an employee with a disability seeks reassignment to a vacant position as a reasonable accommodation and the employer asserts another employee is entitled to or more qualified for that position. Focusing on causation may mitigate that unease, because it seems to distinguish between those whose disadvantage is related to their disability and those who will receive an unfair advantage over others. 

In general, the Gross but-for standard eases courts' concerns about discrimination claims because it requires plaintiffs to carry the burden of proof throughout the process of proving discrimination. That stands in contrast to the statutory provisions setting out the ADA's reasonable accommodation mandate, which requires plaintiffs establish only that an accommodation is reasonable and then shifts the burden to employers to prove the accommodation poses an undue hardship on the business. It has been suggested that Gross is the product of a Court majority hostile to imposing burdens on the employer, perhaps out of fear that doing so will make it too easy for undeserving plaintiffs to prevail. Thus, Gross insists that the risk of sorting out whether discrimination was in fact the reason for an action rests firmly with the plaintiff. The Court could apply a similar construct to accommodation claims and do an end run around the undue hardship burden-shift: The plaintiff could be required to show that what she seeks is indeed related to her disability in a way that distinguishes her limitations from the barriers faced by the general public. Otherwise, much as the “motivating factor” standard in a mixed-motive claim is (arguably) overbroad in finding discrimination when legitimate factors predominate, the reasonable accommodation standard would be (arguably) overbroad in providing accommodations to individuals not actually burdened by their disability but by the same burdens everyone else faces. As this Article will demonstrate, however, that reasoning misconstrues the reasonable accommodation mandate.

Czapanskiy on Parents and the IDEA

New on SSRN: Karen Czapanskiy, Special Kids, Special Parents, Special Education, 46 U. Mich. J. L. Reform ___ (forthcoming 2013).  The abstract:

Many parents are raising children whose mental, physical, cognitive, emotional, or developmental issues diminish their capacity to be educated in the same ways as other children. Over six million of these children receive special education services under mandates of the Individuals with Disabilities Education Act, called the IDEA. Once largely excluded from public education, these children are now entitled to a free appropriate education. In this article, I argue that the special education system must begin to pay attention to the needs of parents if it is going to fully serve the children. In particular, the system needs to support parental competence and pay attention to conserving parental resources. I propose three significant reforms to the special education system that, I argue, will improve the chances that children in need of special education will receive it. The three reforms are: 1) putting parents in touch with each other, 2) requiring school systems to commit to common special educational plans through a public process, and 3) adopting universal design pedagogies in general education when practicable. While the most expensive of the three proposals is the adoption of universal design pedagogies, the most controversial is requiring school systems to commit to common special educational plans for similarly-situated children. None is cost-free, however, so I conclude by demonstrating that the costs of parent-oriented reforms are justified for reasons of pragmatism, to comply with congressional expectations, and to achieve social justice for parents with special needs children as compared with other parents and with each other.

Student Note on the Nexus Requirement in Reasonable Accommodation Law

Just out: Note, Three Formulations of the Nexus Requirement in Reasonable Accommodations Law, 126 Harv. L. Rev. 1392 (2013).  From the introduction:

The concept of reasonable accommodation is fundamental to the American disability law regime, yet it has proved as slippery as the concept of disability itself.  Underlying much of the difficulty is disagreement over the appropriate relationship between an accommodation and the disability-related obstacles it is aimed at removing. Just as it is not illegal to discriminate against a member of a protected class for reasons unrelated to her protected status, the Americans with Disabilities Act  (ADA) does not require accommodations that are not related to a person's disability. But this seemingly simple concept has produced a muddled, often self-contradictory body of case law. Disability statutes provide little guidance to the judges who must decide whether a dog is properly understood as a needed therapy animal or a household pet, whether an alternative examination method is an innovative accommodation for dyslexia or a clever way of gaming the test, and whether a request to transfer to a different work setting is genuinely related to the disabling aspects of posttraumatic stress disorder.  This Note seeks to classify the various approaches that courts have brought to the so-called “nexus requirement,” to examine the beliefs about disability that are implicit in these approaches, and to offer some ways in which courts might reconcile those beliefs with the realities of disability. 

A reasonable accommodation is an alteration to some element of the status quo that is intended to enable a person with a disability to participate in work, higher education, residential living, or public life to the same extent as the nondisabled. The range of possible accommodations is in theory limited only by the human imagination: it can include changes to physical environments and time schedules, adjustment of requirements and policies, and provision of assistive devices, just to cite a few examples.  The Supreme Court has held that exceptions to workforce seniority rules are not necessarily off limits, and courts have recently entertained the idea of including commuting-related accommodations as well.  Given this seemingly untethered flexibility, perhaps it was inevitable that courts interpreting disability-rights statutes would search for some principle to limit the costs incurred by businesses, landlords, and governments in complying with disability law.

* * * 

Thus, the lower federal courts have been left largely to their own devices, and many commentators have been unhappy with the results. These scholars have typically treated the nexus requirement as a straightforward binary issue, generally assuming that courts either scrutinize the nexus or do not.  But the existing variety of judicial treatments calls for a more comprehensive, nuanced framework. This Note introduces a tripartite scheme for classifying the ways in which courts have attempted to reconcile statutory nexus requirements with the factual uncertainties inherent in disability. The first, discussed in Part I, requires the requested accommodation to bear a direct causal relationship with the substantial limitation of a major life activity that the plaintiff alleges. The second, discussed in Part II, asks whether the requested accommodation is more logically integrated with the disability or with some other aspect of the plaintiff's circumstances. The third, discussed in Part III, conceptualizes disability broadly and defers to the judgments of individuals on issues related to their own intimate life experiences. Each formulation has merit, yet none can resolve every case in a way that satisfies the diverse interests at stake in the American disability law regime. These categories are interrelated and far from mutually exclusive; courts have applied very different reasoning to different areas of disability law, and some have even shifted their analyses within a single opinion. Nonetheless, the framework may serve to illuminate the complexities of the nexus inquiry, and Part IV discusses the ways in which judges might employ its insights to compensate for the shortcomings of their own understandings of disability.

An interesting discussion of an important issue.  I don't think the first theory -- direct causal relationship with the substantial limitation of the major life activity -- can make any sense after the ADAAA, where for a lot of people the substantial limitation will be something entirely internal to the body (because the relevant major life activity will be a "major bodily function").  Of course, I didn't think the first theory made a lot of sense before!

Travis on Impairment Discrimination

Up on SSRN: Michelle A. Travis, The Part and Parcel of Impairment Discrimination, __ Emp. Rts. & Emp. Pol'y J. ___ (forthcoming).  The abstract:

The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) has been heralded for restoring the protected class of individuals with disabilities to the broad scope that Congress intended when it enacted the original Americans with Disabilities Act over two decades ago. But the ADAAA accomplished something even more profound. By restricting the accommodation mandate only to individuals whose impairments are or have been substantially limiting, and by expanding basic antidiscrimination protection to cover individuals with nearly all forms of physical or mental impairment, the ADAAA extricated disability from the broader concept of impairment and implicitly bestowed upon impairment the status of an independent protected class under federal antidiscrimination law. The ADAAA's effective elevation of impairment to protected class status demands a deeper understanding of the ways in which impairment discrimination - as distinct from disability discrimination - manifests itself in the workplace. This Article explores one aspect of that larger inquiry by analyzing whether impairment discrimination encompasses employment decisionmaking based on the symptoms of an impairment or on the mitigating measures that one uses for an impairment. This Article demonstrates that understanding symptom-based and mitigation-based decisionmaking as a form of impairment discrimination is not only consistent with the statutory language and legislative intent, but also accurately reflects the social, medical, and practical reality of what it means to be "impaired."

Journal of the National Association of the Administrative Law Judiciary Symposium on the IDEA

Just out in the Journal of the National Association of the Administrative Law Judiciary: a symposium on the IDEA.  It contains the following pieces:

Debra Chopp, School Districts and Families Under the IDEA: Collaborative in Theory and Adversarial in Fact, 32 J. Nat'l Ass'n Admin. L. Judiciary 423 (2012);

Ruth Colker, California Hearing Officer Decisions, 32 J. Nat'l Ass'n Admin. L. Judiciary 461 (2012);

Robert A. Garda, Jr., Disabled Students' Rights of Access to Charter Schools Under the IDEA, Section 504 and the ADA, 32 J. Nat'l Ass'n Admin. L. Judiciary 516 (2012);

S. James Rosenfeld, It's Time for an Alternative Dispute Resolution Procedure, 32 J. Nat'l Ass'n Admin. L. Judiciary 544 (2012);

Torin D. Togut & Jennifer E. Nix, The Helter-Skelter World of IDEA Eligibility for Specific Learning Disability: The Clash of Response-to-Intervention and Child Find Requirements, 32 J. Nat'l Ass'n Admin. L. Judiciary 568 (2012); and

Mark C. Weber, Procedures and Remedies Under Section 504 and the ADA for Public School Children with Disabilities, 32 J. Nat'l Ass'n Admin. L. Judiciary 611 (2012).

Check it out!

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.

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.