Law Commons^™

Pregnancy As "Disability" And The Amended Americans With Disabilities Act, Jeannette Cox

Jeannette Cox

The recent expansion of the ADA’s protected class invites reexamination of the assumption that pregnant workers may not use the ADA to obtain workplace accommodations. The ADA’s scope now includes persons with minor temporary physical limitations comparable to pregnancy’s physical effects. Accordingly, the primary remaining justification for concluding that pregnant workers may not obtain ADA accommodations is that pregnancy is a physically healthy condition rather than a physiological defect.

Drawing on the social model of disability, this article challenges the assumption that medical diagnosis of “defect” must be a prerequisite to disability accommodation eligibility. The social model defines “disability” not …

Disability Stigma And Intraclass Discrimination, Jeannette Cox

Jeannette Cox

By dramatically enlarging the Americans with Disabilities Act’s (ADA) protected class, the recent amendments to the ADA increase the opportunities for employers to replace one member of the ADA’s protected class with another. Although disparities in the social stigma associated with different disabilities suggests that such employment decisions are not automatically free from disability-based animus, many courts historically regarded such decisions as immune from ADA scrutiny. They held that the ADA only prohibited discrimination between persons inside and outside the ADA’s protected class. Today, this “no intraclass claims” approach persists in a modified form: Some courts limit intraclass claims to …

"Corrective" Surgery And The Americans With Disabilities Act, Jeannette Cox

Jeannette Cox

This article challenges the assumption that the Americans with Disabilities Act (ADA) requires persons with disabilities to undergo “corrective” surgery as a precondition to membership in the ADA’s protected class. This issue is ripe for discussion because current efforts to amend the ADA, although not focused on the “corrective” surgery issue, will unsettle the current doctrine underpinning many courts’ conclusions that an individual’s decision to forgo available medical technology bars her from relief under the ADA. The article aims to make two contributions. First, it argues that the ADA’s focus on reshaping cultural responses to disability suggests that individuals need …

Removed Cases And Uninvoked Jurisdictional Grounds, Jeannette Cox

Jeannette Cox

Traditionally understood, a congressional grant of federal subject matter jurisdiction alone does not confer authority on a federal court to hear a case; a party to the case must also affirmatively invoke the applicable jurisdictional ground. In a sharp break from this traditional understanding, federal courts have recently begun to exercise jurisdiction over cases based on jurisdictional grounds no party has invoked. Courts adopting this practice have concluded that a district court must retain removed cases that meet the requirements of a congressionally-authorized ground of subject matter jurisdiction even when an arguably antecedent requirement — party invocation of that jurisdictional …