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Full-Text Articles in Disability Law

Ada Litigation Cannot Reasonably Accommodate Per Se Rules, Meg Ziegler Apr 2019

Ada Litigation Cannot Reasonably Accommodate Per Se Rules, Meg Ziegler

Boston College Law Review

On September 20, 2017, the U.S. Court of Appeals for the Seventh Circuit in Severson v. Heartland Woodcraft, Inc. held that an employee requesting a multi-month leave of absence is not a “qualified individual” employee under the Americans with Disabilities Act (ADA) and that such leave is therefore not a reasonable accommodation as defined by the ADA. In so doing, the court split from its sister circuits and made a bright-line rule that categorically excludes certain employees with disabilities from protection under the ADA. This Comment argues that the Seventh Circuit should have left more room for case by ...


Who Will Educate Me? Using The Americans With Disabilities Act To Improve Educational Access For Incarcerated Juveniles With Disabilities, Lauren A. Koster Feb 2019

Who Will Educate Me? Using The Americans With Disabilities Act To Improve Educational Access For Incarcerated Juveniles With Disabilities, Lauren A. Koster

Boston College Law Review

Youth involved with the juvenile justice system present with a higher rate of disability, including mental illness and learning disabilities, than do non-system-involved youth. These young people are often eligible for special education services as provided by the federal Individuals with Disabilities Education Act (“IDEA”). Eligible youth incarcerated in juvenile detention and correctional facilities, however, often fail to receive these services. Education advocates typically bring suits against school districts and correctional institutions alike under the IDEA’s mandate to provide a free appropriate public education to students with disabilities. Unfortunately, this approach is failing because the IDEA is not able ...


Writing The Access Code: Enforcing Commercial Web Accessibility Without Regulations Under Title Iii Of The Americans With Disabilities Act, Daniel Sorger Mar 2018

Writing The Access Code: Enforcing Commercial Web Accessibility Without Regulations Under Title Iii Of The Americans With Disabilities Act, Daniel Sorger

Boston College Law Review

A growing number of private lawsuits allege that businesses are violating Title III of the Americans with Disabilities Act because their websites are inaccessible to disabled individuals. Courts remain divided, however, on the extent to which commercial websites are covered under Title III. Additionally, the Department of Justice has not promulgated commercial web accessibility regulations—adding further uncertainty to the private enforcement regime. This Note argues that Title III broadly covers commercial websites, but that private enforcement is not positioned to spur lasting, broad-based Title III compliance. It proposes that large-scale litigation, state attorney general action, and state laws should ...


A Bare Desire To Harm: Transgender People And The Equal Protection Clause, Kevin M. Barry, Brian Farrell, Jennifer L. Levi, Neelima Vanguri Mar 2016

A Bare Desire To Harm: Transgender People And The Equal Protection Clause, Kevin M. Barry, Brian Farrell, Jennifer L. Levi, Neelima Vanguri

Boston College Law Review

The U.S. Supreme Court’s decision in Obergefell v. Hodges establishing marriage equality for same-sex couples marks a major shift in recognizing gay, lesbian, and bisexual people as a central part of the fabric of American society. Obergefell also marks the passing of the torch from “LGB” to “T”; the next civil rights frontier belongs to transgender people, for whom key barriers still remain. In January 2015, a transgender woman filed an equal protection challenge to a provision of the Americans with Disabilities Act (“ADA”), which explicitly excludes several medical conditions closely associated with transgender people. In support of ...


More Carrot, Less Stick: Workplace Wellness Programs & The Discriminatory Impact Of Financial And Health-Based Incentives, Emily Koruda Mar 2016

More Carrot, Less Stick: Workplace Wellness Programs & The Discriminatory Impact Of Financial And Health-Based Incentives, Emily Koruda

Boston College Journal of Law & Social Justice

In recent years, more and more employers are turning to workplace wellness programs to combat rising health care costs by rewarding employees for improving their health-related behaviors and penalizing those who do not attain measureable health outcomes. Yet these wellness programs run counter to the goals of improving the overall health and livelihood of employees when they shift health care costs onto the employees who need lower premiums the most. There is little evidence that these programs can avoid being discriminatory. This Note analyzes the disparate impact of workplace wellness programs on low-income individuals, individuals with disabilities, and certain racial ...


Accidentally On Purpose: Intent In Disability Discrimination Law, Mark C. Weber Oct 2015

Accidentally On Purpose: Intent In Disability Discrimination Law, Mark C. Weber

Boston College Law Review

American disability discrimination laws contain few intent requirements. Yet courts frequently demand showings of intent in disability discrimination lawsuits. Intent requirements arose almost by accident: through a false statutory analogy; by repetition of obsolete judicial language; and by doctrine developed to avoid a nonexistent conflict with another law. Demanding that section 504 and Americans with Disabilities Act (“ADA”) claimants show intent imposes a burden not found in those statutes or their interpretive regulations. This Article provides reasons not to impose intent requirements for liability or monetary relief in section 504 and ADA cases concerning reasonable accommodations. It demonstrates that no ...


Light, Smoke, And Fire: How State Law Can Provide Medical Marijuana Users Protection From Workplace Discrimination, Elizabeth Rodd Nov 2014

Light, Smoke, And Fire: How State Law Can Provide Medical Marijuana Users Protection From Workplace Discrimination, Elizabeth Rodd

Boston College Law Review

Currently, twenty-three states and the District of Columbia have enacted legislation providing an affirmative defense to prosecution under state law for medical marijuana use by qualified patients. Despite growing public and legislative support for the legalization of medical marijuana, marijuana use—both recreational and medicinal—remains illegal under the federal Controlled Substances Act. Given the inconsistency between state and federal law concerning the legality of medicinal marijuana, there is significant uncertainty regarding the rights of employees to enjoy their new medical marijuana privileges. To date, courts have refused to grant protections to employees who have suffered adverse employment action for ...


The Accommodation Of Last Resort: The Americans With Disabilities Act And Reassignments, Michael Creta Nov 2014

The Accommodation Of Last Resort: The Americans With Disabilities Act And Reassignments, Michael Creta

Boston College Law Review

In 1990, Congress enacted the Americans with Disabilities Act (“ADA”) to eliminate widespread discrimination against disabled persons. The Act requires private employers to provide reasonable accommodations to disabled employees to allow them to continue performing essential job functions. One accommodation in particular has divided the U.S. Circuit Courts of Appeals: reassigning disabled employees to vacant positions. Due to a current circuit split, it is unclear if employers must reassign disabled employees despite maintaining policies of choosing the best-qualified employees for reassignment. This Note argues that both the text of the ADA and the ADA’s legislative history support automatic ...


Removing Arbitrary Handicaps: Protecting The Right To Education In Horváth And Kiss V. Hungary, Kerime Sule Akoglu Nov 2014

Removing Arbitrary Handicaps: Protecting The Right To Education In Horváth And Kiss V. Hungary, Kerime Sule Akoglu

Boston College International and Comparative Law Review

On January 29, 2013, in Horváth and Kiss v. Hungary, the European Court of Human Rights held that educational testing in Hungary violated the European Convention on Human Rights. The court found that the tests used in Hungary had a disproportionate effect on the Roma population and that the state has a positive obligation to remedy such practices. This Comment argues that the imposition of positive obligations on states to provide safeguards for disadvantaged groups, like the Roma, is an effective method to correct a troubled history of racial segregation in public schools. This Comment also argues that without such ...


Guarding The Golden Years: How Public Guardianship For Elders Can Help States Meet The Mandates Of Olmstead, Eleanor B. Cashmore Sep 2014

Guarding The Golden Years: How Public Guardianship For Elders Can Help States Meet The Mandates Of Olmstead, Eleanor B. Cashmore

Boston College Law Review

The aging American population will quickly lead to a greater demand for long-term care and services for people who are unable to care for themselves. Some older adults may require other individuals to make informed decisions on their behalf. State guardianship programs must confront the tension of providing protections for people who are incapacitated while respecting their autonomy, particularly when making decisions involving a person’s residence. When elderly adults wish to stay in their communities and are capable of doing so, a lack of proper support may be a violation of the Americans with Disabilities Act of 1990 (“ADA ...


Statutory Prohibitions On Wrongful Birth Claims & Their Dangerous Effects On Parents, Cailin Harris May 2014

Statutory Prohibitions On Wrongful Birth Claims & Their Dangerous Effects On Parents, Cailin Harris

Boston College Journal of Law & Social Justice

Wrongful birth claims are negligence actions brought on behalf of children born with disabilities or genetic disorders that were not properly diagnosed before the child’s birth. The plaintiffs, typically the parents of the afflicted child, argue that without the defendant’s negligence, the parents would have had the opportunity to prevent the child’s birth and subsequent condition by choosing to terminate the pregnancy. A number of states have responded to the growing prevalence of wrongful birth claims by enacting legislation that bars plaintiffs from bringing wrongful birth actions. These statutes, however, pose a threat to the parental rights ...


Left Behind With No “Idea”: Children With Disabilities Without Means, Alex J. Hurder May 2014

Left Behind With No “Idea”: Children With Disabilities Without Means, Alex J. Hurder

Boston College Journal of Law & Social Justice

This Article examines the changes to the Individuals with Disabilities Education Act (“IDEA”), which were intended to reconcile the Act with the No Child Left Behind Act of 2001, and the effect those changes have had on the education of children with disabilities. The Article highlights the important role that parents were given in the original IDEA and the procedures set up to protect that role. It then looks at the manner in which the 2004 amendments to the law and certain U.S. Supreme Court cases have undermined the ability of parents to influence the individualized education plan for ...


Still Out Of Step: The Sixth Circuit’S Adoption Of A “But-For” Standard For Ada Plaintiffs In Lewis V. Humboldt Acquisition Corp., Allison J. Zimmon Apr 2014

Still Out Of Step: The Sixth Circuit’S Adoption Of A “But-For” Standard For Ada Plaintiffs In Lewis V. Humboldt Acquisition Corp., Allison J. Zimmon

Boston College Journal of Law & Social Justice

On May 25, 2012, the U.S. Court of Appeals for the Sixth Circuit, sitting en banc, reversed seventeen years of precedent and joined its sister circuits by discarding the “sole cause” standard for proving discrimination under Title I of the Americans with Disabilities Act (ADA). By declining to adopt the “motivating factor” standard used in the majority of the other circuits, and instead adopting a “but-for” standard, the Sixth Circuit’s ADA jurisprudence continues to be an outlier. This Comment argues that the “but-for” standard imposes an unfair burden on vulnerable and disabled employees who are seeking relief from ...


The "Double-Edged" Dilemma: The Eleventh Circuit's Devaluation Of Mental Health Mitigators In Evans V. Secretary, Department Of Corrections, Erik Thompson Mar 2014

The "Double-Edged" Dilemma: The Eleventh Circuit's Devaluation Of Mental Health Mitigators In Evans V. Secretary, Department Of Corrections, Erik Thompson

Boston College Journal of Law & Social Justice

In Evans v. Secretary, Department of Corrections, the United States Court of Appeals for the Eleventh Circuit denied habeas corpus relief to a death row inmate who claimed that ineffective assistance of counsel prejudiced his death sentence hearing. Despite the defense counsel’s omission of evidence suggesting that the inmate suffered from various mental disabilities, the court resolved that such evidence would not have affected the jury’s ultimate recommendation of the death sentence because some of the evidence was stigmatized. This standard creates a burden that is far too great for individuals facing the death penalty and significantly minimizes ...


Setting Its Sights On The Marrakesh Treaty: The U.S. Role In Alleviating The Book Famine For Persons With Print Disabilities, Shae Fitzpatrick Feb 2014

Setting Its Sights On The Marrakesh Treaty: The U.S. Role In Alleviating The Book Famine For Persons With Print Disabilities, Shae Fitzpatrick

Boston College International and Comparative Law Review

Today, a global book famine deprives hundreds of millions of persons with print disabilities access to basic information worldwide. The World Intellectual Property Organization (WIPO) reports that the visually impaired have access to merely 5 percent of published books. Amid the global movement to reevaluate copyright laws for the digital age, a watershed opportunity exists to harmonize the deficient patchwork of national and international copyright laws perpetuating the book famine. After years of stalled progress, WIPO recently adopted the landmark Marrakesh Treaty to alleviate copyright barriers to access for the print-disabled worldwide. This Note argues that the United States should ...


An Exhausting Idea: The Fifth Circuit Examines The Idea Exhaustion Requirement In Stewart V. Waco Independent School District, Elizabeth Rodd Feb 2014

An Exhausting Idea: The Fifth Circuit Examines The Idea Exhaustion Requirement In Stewart V. Waco Independent School District, Elizabeth Rodd

Boston College Law Review

On March 14, 2013, in Stewart v. Waco Independent School District, the U.S. Court of Appeals for the Fifth Circuit held that the plaintiff was not required to administratively exhaust her Rehabilitation Act claim under the Individuals with Disabilities Education Act (IDEA). In doing so, the Fifth Circuit created a precedent that could potentially flood court dockets and that does not make use of the administrative safeguards statutorily in place. This Comment argues that, on remand, the U.S. District Court for the Western District of Texas should apply a relief-centered approach to ultimately find that the plaintiff was ...


Insurmountable Hill: How Undue Aedpa Deference Has Undermined The Atkins Ban On Executing The Intellectually Disabled, Nathaniel Koslof Apr 2013

Insurmountable Hill: How Undue Aedpa Deference Has Undermined The Atkins Ban On Executing The Intellectually Disabled, Nathaniel Koslof

Boston College Law Review

On November 22, 2011, in Hill v. Humphrey, the U.S. Court of Appeals for the Eleventh Circuit, sitting en banc, held that a petitioner’s federal habeas petition challenging his death sentence must be denied in light of the degree of deference owed to the state habeas court’s decision under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). In so doing, the court rejected the petitioner’s argument that Georgia’s beyond a reasonable doubt standard for proving a defendant’s intellectual disability is unconstitutionally stringent and thus eviscerates the right of the intellectually disabled to ...


An Opportunity To Be Heard: A Call For Impartiality In The Law School Admission Council's Disability Accommodation Review Process, Edward Dunn Feb 2013

An Opportunity To Be Heard: A Call For Impartiality In The Law School Admission Council's Disability Accommodation Review Process, Edward Dunn

Boston College Journal of Law & Social Justice

Congress passed the Americans with Disabilities Act (ADA) in 1990, endeavoring to eliminate discrimination against disabled Americans and assure equality of opportunity. The Law School Admission Council’s (LSAC) accommodation review process contradicts this purpose when it denies disabled individuals seeking accommodation on the Law School Admission Test (LSAT). In its current state, this review process enables LSAC to issue denials without affording the disabled applicants an opportunity to be heard or to confront adverse witnesses. These omissions fail to meet procedural due process standards, but LSAC, as a non-profit, private corporation, is not compelled to meet these standards unless ...


Pregnancy As “Disability” And The Amended Americans With Disabilities Act, Jeannette Cox Mar 2012

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

Boston College Law Review

The recent expansion of the Americans with Disabilities Act’s (ADA) 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 ...


New Governance And Rights-Claims, Vlad F. Perju Aug 2011

New Governance And Rights-Claims, Vlad F. Perju

Boston College Law School Faculty Papers

I. Ideas as catalysts: Rights and the struggle for recognition of persons with disabilities

II. Strategic and communicative components of rights-claims

III. Two conceptions of responsiveness: An excursus into constitutional theory

Conclusion: The not-so-strange alchemy of new governance and “old government”


Pleading Disability, Joseph A. Seiner Jan 2010

Pleading Disability, Joseph A. Seiner

Boston College Law Review

A significant failure. That is how the Americans with Disabilities Act (“ADA”) has been described by legal scholars and disability advocates alike. The statute was widely expected to help prevent disability discrimination in employment, but it has not fully achieved its intended purpose because of the narrow interpretation of the ADA by the courts. Congress recently sought to restore the employment protections of the ADA by amending the statute. Interpreting the complex and comprehensive amendments to the ADA will be a difficult task for the federal courts. Complicating matters further, the proper pleading standard for disability claims was left in ...


Reasonably Accommodating Nonmitigating Plaintiffs After The Ada Amendments Act Of 2008, Reagan S. Bissonnette May 2009

Reasonably Accommodating Nonmitigating Plaintiffs After The Ada Amendments Act Of 2008, Reagan S. Bissonnette

Boston College Law Review

The passage of the ADA Amendments Act of 2008 ("ADAAA") has significantly changed the landscape of disability law in the United States. Prior to the ADAAA, the Supreme Court narrowed the definition of "disability" under the ADA in the landmark case Sutton v. United Air Lines, Inc. Superseding Sutton, the ADAAA broadens the definition of "disability" by indicating that measures used to successfully mitigate a plaintiff's impairment may not be considered when determining whether a plaintiff is "disabled." The ADAAA does not, however, expressly address plaintiffs who fail to use these mitigating measures, and there has been confusion among ...


Was Blind But Now I See: The Argument For Ada Applicability To The Internet, Jeffrey Scott Ranen May 2002

Was Blind But Now I See: The Argument For Ada Applicability To The Internet, Jeffrey Scott Ranen

Boston College Third World Law Journal

This Note argues that the "public accommodations" provision of Title III of the Americans with Disabilities Act applies to the Internet. A broad reading of the public accommodation clause in Title III in conjunction with the supporting case law and the statute's legislative history suggests that public accommodations are not limited to physical structures. Therefore, Internet companies that do not provide software compatible with the technology that visually disabled people use to access the Internet are liable for violating the ADA. The Note concludes with a summary of the first litigation on this issue between the National Federation of ...


Disabled Without Benefits: The Impacts Of Recent Social Security Reform On Disabled Children, Amber R. Anderson Dec 2000

Disabled Without Benefits: The Impacts Of Recent Social Security Reform On Disabled Children, Amber R. Anderson

Boston College Law Review

In 1996, Congress passed sweeping reforms aimed at overhauling the welfare system. The Personal Responsibility and Work Opportunity Reconciliation Act ("PRWORA") included a new definition of childhood disability that, it is estimated, excluded 100,000 children from SSI benefits. This Note explains the changes implemented within the childhood disability system and explains the reasoning behind those changes. It then argues that the regulations promulgated in response to PRWORA exclude truly disabled children from receiving disability benefits. These regulations violate the Social Security Act, are inconsistent with the stated policies of the Social Security Administration and draw arbitrary distinctions, violating the ...


"Don't Tread On The Ada": Olmstead V. L.C. Ex Rel. Zimring And The Future Of Community Intergration For Individuals With Mental Disabilities, Joanne Karger Sep 1999

"Don't Tread On The Ada": Olmstead V. L.C. Ex Rel. Zimring And The Future Of Community Intergration For Individuals With Mental Disabilities, Joanne Karger

Boston College Law Review

No abstract provided.


Special Education, Equal Protection And Education Finance: Does The Individuals With Disabilities Education Act Violate A General Education Student's Fundamental Right To Education, Gregory F. Corbett Mar 1999

Special Education, Equal Protection And Education Finance: Does The Individuals With Disabilities Education Act Violate A General Education Student's Fundamental Right To Education, Gregory F. Corbett

Boston College Law Review

No abstract provided.


Regulation Of Pornography On The Internet In The United States And The United Kingdom: A Comparative Analysis, Dawn A. Edick Aug 1998

Regulation Of Pornography On The Internet In The United States And The United Kingdom: A Comparative Analysis, Dawn A. Edick

Boston College International and Comparative Law Review

No abstract provided.


Compulsory Arbitration In The Unionized Workplace: Reconciling Gilmer, Gardner-Denver And The Americans With Disabilities Act, Amanda G. Dealy May 1996

Compulsory Arbitration In The Unionized Workplace: Reconciling Gilmer, Gardner-Denver And The Americans With Disabilities Act, Amanda G. Dealy

Boston College Law Review

No abstract provided.


Weighing In Against Obesity Discrimination: Cook V. Rhode Island, Department Of Mental Health, Retardation, And Hospitals And The Recognition Of Obesity As A Disability Under The Rehabilitation Act And The Americans With Disabilities Act, William C. Taussig Jul 1994

Weighing In Against Obesity Discrimination: Cook V. Rhode Island, Department Of Mental Health, Retardation, And Hospitals And The Recognition Of Obesity As A Disability Under The Rehabilitation Act And The Americans With Disabilities Act, William C. Taussig

Boston College Law Review

No abstract provided.


Accommodating Learning Disabled Students In Higher Education: Schools' Legal Obligations Under Section 504 Of The Rehabilitation Act, Brigid Hurley Sep 1991

Accommodating Learning Disabled Students In Higher Education: Schools' Legal Obligations Under Section 504 Of The Rehabilitation Act, Brigid Hurley

Boston College Law Review

No abstract provided.