Wednesday, February 22, 2006

Newly Published Articles

A bunch of articles new on Westlaw:

Kathy L. Cerminara, Musings on the Need to Convince Some People with Disabilities That End-of-Life Decision-Making Advocates Are Not Out to Get Them, 37 Loy. U. Chi. L.J. 343 (2006). I blogged about the SSRN posting of this article here.

Fedwa Malti-Douglas, Legal Cross-Dressing: Sexuality and the Americans with Disabilities Act, 15 Colum. J. Gender & L. 114 (2006).

Angela Onuwachi-Willig & Mario L. Barnes, By Any Other Name? On Being "Regarded As" Black, and Why Title VII Should Apply Even if Lakisha and Jamal are White,
2005 Wis. L. Rev. 1283. From the introduction:

Applying theories concerning the social construction of race, this Article borrows from the definition of disability under the Americans with Disabilities Act of 1990 (ADA) and the courts' analyses of disability discrimination cases under the "regarded as" disabled provision of the ADA, which allows a plaintiff to bring a claim against an employer who regards the plaintiff as having an impairment that substantially limits a major life activity. Using the "regarded as" provision as a model, this Article proposes a new method for recognizing discrimination claims based on the use of proxies for race--even when those proxies have been used in a way that mistakenly identifies someone as belonging to a certain race. In other words, we recognize that it is not physical race but the presumptions of "disability," or rather the constructed social meanings of race, that trigger both conscious and unconscious forms of discrimination. This Article argues that to redress discrimination in the workplace, courts must recognize employment discrimination claims where one is, for example, "regarded as" black, with all of the socially ascribed negative stereotypes of the group.


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