Law Commons^™

The Part And Parcel Of Impairment Discrimination, Michelle Travis

Michelle A. Travis

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 …

Gun Control, Mental Illness, And Black Trans And Lesbian Survival, Gabriel Arkles

Gabriel Arkles

Those concerned with racial, gender, sexual, economic, or disability justice should be concerned about the direction and focus of national conversations in the wake of Newtown. Controversies over gun control and mental health treatment have a profound impact on those marginalized based on race, gender, sexuality, class, and disability. Gun control laws endanger trans people of color and queer women of color, as well as those labeled mentally ill, by failing to reduce interpersonal violence while increasing the violence of the criminal legal system. Instead of increasing incarceration of people in marginalized communities who choose to carry guns, we should …

A House Divided: The Incompatible Positions Of The Centers For Disease Control And The Equal Employment Opportunity Commission On Obesity As A Disability, Kent Kauffman

Kent D Kauffman

The question whether obesity was a covered disability under the Americans with Disabilities Act (ADA) was inconsistently answered by the federal courts. But the passage of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) revised the federal government's position on obesity as a disability, and the Equal Employment Opportunity Commission has, as a result, taken a more assertive role in this area of disability discrimination. The difficulty with the EEOC's position is that is disregards the reality that obesity presents in the workplace, one of ever-burgeoning and unsustainable costs. It is also a stance that is antipathetic to …

Impairment As Protected Status: A New Universality For Disability Rights, Michelle Travis

Michelle A. Travis

This Article analyzes the fundamental change to federal civil rights law that Congress accomplished through the ADA Amendments Act of 2008 (the "ADAAA"). Congress enacted the ADAAA in response to a series of United States Supreme Court opinions that had narrowly interpreted the definition of disability in the Americans with Disabilities Act of 1990. Although many commentators have recognized the ADAAA's intent to restore the class of individuals with disabilities to the breadth that Congress originally intended, this Article argues that the ADAAA accomplished something more significant: it extricated disability from the broader concept of impairment. As a result, the …

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 …

"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 …

Parallel Lines Never Meet: Why The Military Disability Retirement And Veterans Affairs Department Claim Adjudication Systems Are A Failure, Thomas Reed

Thomas J Reed

Service members who are injured or come down with a disease while on active duty have two roads to seek compensation for disability benefits that are part of the enlistment contract. The first road is military disability retirement, administered by the armed services. The second road is VA compensation administered by the cabinet-level Department of Veterans Affairs. Both systems are near collapse due to a backlog of undecided claims and manifest injustices in awarding benefits to disabled veterans and dependents.

Professor Reed proposes a radical reform of the dual compensation system by combining military disability retirement and VA benefits into …

Lashing Back At The Ada Backlash: How The Americans With Disabilities Act Benefits Americans Without Disabilities, Michelle A. Travis

Michelle A. Travis

This Article applies Professor Derrick Bell's interest convergence hypothesis to the disability context. By identifying how the ADA benefits nondisabled workers, this Article challenges the notion that advancing equality for individuals with disabilities necessarily comes at the expense of the nondisabled workforce. Many scholars have documented the socio-legal backlash against the ADA, particularly the ADA's reasonable accommodation mandate. This backlash is fueled in part by a belief that the ADA is a form of social welfare, rather than an antidiscrimination law, and that the accommodation mandate requires affirmative action or preferential treatment, rather than merely ensuring equal employment opportunities. More …