Law Commons^™

Settling The Matter: Does Title I Of The Ada Work?, Sharona Hoffman

Faculty Publications

Analysis of cases decided under Title I of the Americans with Disabilities Act (ADA), which addresses employment discrimination, reveals that defendants have consistently prevailed in well over 90% of cases since the ADA's inception. This empirical evidence has led many commentators to conclude that the ADA's Title I has failed to improve workplace conditions for individuals with disabilities.

This article attempts to assess the efficacy of Title I through a different lens. It focuses on several data sets that have previously received little attention. It examines Equal Employment Opportunity Commission merit resolutions, lawsuit settlement statistics, and reports concerning reasonable accommodation …

Who Says You're Disabled? The Role Of Medical Evidence In The Ada Definition Of Disability, Deirdre M. Smith

Faculty Publications

The Americans with Disabilities Act (ADA), enacted by Congress seventeen years ago, offered disabled people a hope of equality and access that has not been fulfilled. ¹ Court decisions halt an overwhelming majority of claims, particularly in the employment context, at the summary judgment stage. ² A key mechanism for fencing out disabled people's claims is the pernicious requirement, based upon the very construction of disability that the ADA's proponents aimed to dispel, that medical evidence is required as a threshold matter to demonstrate that the plaintiff is entitled to seek protection under the statute. ³ The medical evidence requirement …

Politics Of Deference And Inclusion: Toward A Uniform Framework For The Analysis Of ‘Fundamental Alteration’ Under The Ada, Kerri Lynn Stone

Faculty Publications

In 2001, a disabled professional golfer prevailed in his claim to use a golf cart on the PGA Tour in the Supreme Court case of PGA Tour, Inc. v. Martin. While the Americans with Disabilities Act (“ADA”) mandates that essential and reasonable accommodations be made for plaintiffs like Martin, it does not require any actions that would fundamentally alter the nature of a defendant’s “goods, services, facilities, privileges, advantages, or accommodations.” This article surveys federal opinions that undertook the fundamental alteration query posed by Titles II and III of the ADA in the five years since Martin was decided, and …

The Chevron Two-Step And The Toyota Sidestep: Dancing Around The Eeoc's Disability Regulations Under The Ada, Lisa A. Eichhorn

Faculty Publications

The definition of "disability" is among the most frequently litigated issues under the Americans with Disabilities Act ("ADA") because the statute protects only individuals with disabilities. The ADA defines a disability, in part, as an impairment that substantially limits a major life activity, and the EEOC has issued a regulation further defining the term "substantially limits" for purposes of the Act's employment-related provisions. Although the EEOC's regulation is the product of a valid rulemaking process and is entitled to a high degree of deference under settled administrative law principles, the Supreme Court, in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, …

Generalizing Disability, Michael Ashley Stein

Faculty Publications

No abstract provided.

Hostile Environment Actions, Title Vii, And The Ada: The Limits Of The Copy-And-Paste Function, Lisa A. Eichhorn

Faculty Publications

Two federal circuits, borrowing from Title VII jurisprudence, recently recognized a cause of action for a disability-based hostile environment under the Americans with Disabilities Act (ADA). Neither opinion, however, considered how the analysis of a disability-based hostile environment claim under the ADA might differ from that of a race- or sex-based hostile environment claim under Title VII. This Article examines the differing theories of equality underlying the two statutes and argues that, because the statutes prohibit discrimination in fundamentally different ways, courts must resist the temptation to copy and paste Title VII doctrine into ADA hostile environment opinions. This Article …

An Equity Paradigm For Preventing Genetic Discrimination, Anita Silvers, Michael Ashley Stein

Faculty Publications

No abstract provided.

Empirical Implications Of Title I, Michael Ashley Stein

Faculty Publications

No abstract provided.

Applying The Ada To Mitigating Measures Cases: A Choice Of Statutory Evils, Lisa A. Eichhorn

Faculty Publications

This Article critiques the idea that the ADA should exclude from its coverage people who use mitigating measures, such as medications and medical devices, to alleviate the effects of their mental and physical impairments. After describing the statute as an expansive but flawed tool for combating disability-based discrimination, the Article analyzes a 1999 trilogy of Supreme Court cases holding that in determining whether a person has a disability for purposes of ADA coverage, courts should take account of the ameliorative effects of so-called mitigating measures on the person’s impairments. Through this holding, the Court inappropriately constricted the scope of the …

Major Litigation Activities Regarding Major Life Activities: The Failure Of The Disability Definition In The Americans With Disabilities Act Of 1990, Lisa A. Eichhorn

Faculty Publications

The passage of the Americans with Disabilities Act ("ADA") in 1990 has been praised as the major accomplishment of the disability rights movement. This statute, however, is not without its flaws. Perhaps the most problematic one is the way in which “disability” is defined. Lisa Eichhorn argues that the definition undercuts the effectiveness of the ADA. She begins with a historical look at society’s concepts of disability and discusses how these concepts were incorporated into the Rehabilitation Act of 1973 and the ADA. She then examines cases that have been dismissed because plaintiffs cannot prove disabled status, which illustrate the …

Ada Mediation After Sutton, Murphy And Albertson, James Levin

Faculty Publications

Judith Cohen's summary of the Interim ADA Mediation Standards in the last issue of The Journal of Alternative Dispute Resolution in Employment acknowledges the "skyrocketing" number of cases mediated under the Americans With Disabilities Act (ADA). The United States Supreme Court's recent opinions in Sutton v. United Airlines, Inc., Murphy v. United Parcel Service, Inc., and Albertson, Inc. v. Kirkingberg surprised many in the disability community by explicitly excluding an individual from ADA coverage if she mitigates her mental or physical impairment and the impairment as mitigated no longer substantially limits a major life activity. Will the Supreme Court's narrowing …

Reasonable Accommodations And Awkward Compromises: Issues Concerning Learning Disabled Students And Professional Schools In The Law School Context, Lisa A. Eichhorn

Faculty Publications

Under the Americans with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of 1973, colleges and universities are prohibited from discriminating against qualified students with learning disabilities and must reasonably accommodate such disabilities so that students have a genuine opportunity to complete academic programs successfully. Not surprisingly, just like their non-disabled peers, a number of learning disabled college graduates are choosing to enter professions such as law and medicine. Their entry into professional schools has raised a number of legal issues concerning their qualification to matriculate, their need for accommodations, and their eventual ability to practice successfully. …

Arbitrability In Recent Federal Civil Rights Legislation: The Need For Amendment, Douglas E. Abrams

Faculty Publications

This Article discusses the shortcomings inherent in the consideration and enactment of the arbitrability provisions of the ADA and the 1991 Civil Rights Act. As a threshold matter, Part II demonstrates that the latter Act's textual encouragement of arbitration indicates that Congress misapprehended the effect of Gilmer, which the Supreme Court had decided barely six months before the Act's passage. Specifically, this Part will argue that after Gilmer, textual encouragement of arbitration has little or no greater legal significance than textual silence would have. In the few decades before the decision, textual encouragement would have had significant impact because particular …