Disability Law Commons^™

Mindful Debiasing: Meditation As A Tool To Address Disability Discrimination, Elizabeth F. Emens

Faculty Scholarship

Antidiscrimination law is at a critical juncture. The law prohibits formal and explicit systems of exclusion, but much bias nonetheless persists. New tools are needed. This Article argues that mindfulness meditation may be a powerful strategy in the battle against disability discrimination. This Article sets out eight reasons that disability bias is particularly intractable. The Article then draws on empirical, philosophical, and scholarly sources to identify mechanisms through which mindfulness meditation can address these dynamics. The Article concludes by presenting concrete doctrinal implications of bringing mindfulness to bear on disability discrimination. This Article thus contributes to the established fields of …

Disability Admin: The Invisible Costs Of Being Disabled, Elizabeth F. Emens

Faculty Scholarship

This Essay comes in five parts. After this Introduction, Part I begins by briefly sketching the concept of life admin and setting out the understanding of disability that informs the ADA. Part II demonstrates the special burdens that admin places on people with disabilities and uses this argument to refine the social model of disability and clarify its implications. This theoretical insight lays the groundwork for Part III to fill a gap in the analysis of “reasonable” accommodation under Title I. This Part shows that, although courts have set out a cost-benefit analysis as the framework for determining the “reasonableness” …

The Art Of Access: Innovative Protests Of An Inaccessible City, Elizabeth F. Emens

Faculty Scholarship

This Essay considers inaccessible New York City through the lens of artistic production. The landscape of disability art and protest is vast and wildly diverse. This Essay proposes to capture one slice of this array. From Ellis Avery’s Zodiac of NYC transit elevators, to Shannon Finnegan’s Anti-Stairs Club Lounge at the Vessel in Hudson Yards, to Park McArthur’s work exhibiting the ramps that provided her access to galleries showing her work – these and other creative endeavors offer a unique way in to understanding the problems and potential of inaccessible cities. Legal actions have challenged some of the specific sites …

Digital Accessibility And Disability Accommodations In Online Dispute Resolution: Odr For Everyone, David Larson

Faculty Scholarship

Court systems are exploring and beginning to adopt online dispute resolution (ODR) systems, and it is critical that they make digital accessibility a priority. Even though we need to pay close attention to ODR developments in court systems, we cannot overlook the fact that there are ODR providers in the private sector whose systems also must be accessible for persons with disabilities. Plaintiffs filed more ADA Title III website accessibility lawsuits in federal court for the first six months of 2018 than in all of 2017. There were at least 1053 such lawsuits in the first six months of 2018, …

Use Of Facial Recognition Technology For Medical Purposes: Balancing Privacy With Innovation, Seema Mohapatra

Faculty Scholarship

No abstract provided.

Vexatious Litigants And The Ada: Strategies To Fairly Address The Need To Improve Access For Individuals With Disabilities, Helia Garrido Hull

Faculty Scholarship

No abstract provided.

Politically Correct Eugenics, Seema Mohapatra

Faculty Scholarship

No abstract provided.

Perspectives On Outpatient Commitment, Richard C. Boldt

Faculty Scholarship

No abstract provided.

Framing Disability, Elizabeth F. Emens

Faculty Scholarship

Mainstream attitudes toward disability lag behind U.S. law. This tension between attitudes and law reflects a wider gap between the ideas about disability pervasive in mainstream society — what this Article calls the "outside" view — and the ideas about disability common within the disability community — what this Article calls the "inside" view. The outside perspective tends to misunderstand and mischaracterize aspects of the experience, theory, and law of disability.

The law can help to close this gap in attitudes by changing the conditions in which attitudes are formed or reinforced. Thus, this Article proposes using framing rules to …

Disabling Attitudes: U.S. Disability Law And The Ada Amendments Act, Elizabeth F. Emens

Faculty Scholarship

This is a crucial juncture for U.S. disability law. In 2008, Congress passed the ADA Amendments Act (ADAAA), which aims to reverse the courts’ narrowing interpretations of the Americans with Disabilities Act of 1990. This legislative intervention provides an important lens through which to consider attitudes toward disability, both because the success of the ADAAA will depend on judicial attitudes, and because the changes rendered by the ADAAA shed light on pervasive societal attitudes. This Essay makes three main points. First, the ADAAA intervenes in the developing doctrine on disability discrimination in important ways; in so doing, however, the ADAAA …

Designing The Architecture For Integrating Accommodation: An Institutionalist Commentary, Susan P. Sturm

Faculty Scholarship

Integrating Accommodation, by Elizabeth F. Emens, reshapes the framework for evaluating workplace accommodations to assure consideration of their third-party benefits. In an ingenious move, the article extends the contact hypothesis, which conventionally emphasizes the attitudinal benefits of integrating diverse groups, to the impact of integrating the accommodations made so that disabled people can effectively participate in the workplace. The article shows how accommodations benefit third parties by improving their workplace conditions and thus have the potential to change attitudes toward disability, accommodation, and the Americans with Disabilities Act (ADA).

Integrating Accommodation, Elizabeth F. Emens

Faculty Scholarship

Courts and agencies interpreting the Americans with Disabilities Act (ADA) generally assume that workplace accommodations benefit individual employees with disabilities and impose costs on employers and, at times, coworkers. This belief reflects a failure to recognize a key feature of ADA accommodations: their benefits to third parties. Numerous accommodations – from ramps to ergonomic furniture to telecommuting initiatives – can create benefits for coworkers, both disabled and nondisabled, as well as for the growing group of employees with impairments that are not limiting enough to constitute disabilities under the ADA. Much attention has been paid to how the integration of …

Equal Access To Post-Secondary Education: The Sisyphean Impact Of Flagging Test Scores Of Persons With Disabilities, Helia Garrido Hull

Faculty Scholarship

In view of the social stigma associated with disabilities, and the inherent costs of providing accommodations to disabled students, the opportunity for bias within the admissions selection process is clear. As a result, the practice of flagging standardized tests has come under increasing scrutiny. The practice of distinguishing test takers having a disability from those who do not runs counter to the social policy of inclusion, and prevents disabled individuals from enjoying the benefits of equal citizenship. Part II of this paper provides a brief overview of the prejudice disabled individuals have endured throughout history, and discusses some early movements …

Shape Stops Story, Elizabeth F. Emens

Faculty Scholarship

Storytelling and resistance are powerful tools of both lawyering and individual identity, as I argue in this brief essay published in Narrative as part of a dialogue on disability, narrative, and law with Rosemarie Garland-Thompson and Ellen Barton. Garland-Thompson's work shows us the life-affirming potential of storytelling, its role in shaping disability identity, and its role in communicating that identity to the outside world. By contrast, Barton powerfully shows how those same life-affirming narratives can force a certain kind of storytelling, can create a mandate to tell one story and not another. In short, Barton reminds us of the need …

The Sympathetic Discriminator: Mental Illness, Hedonic Costs, And The Ada, Elizabeth F. Emens

Faculty Scholarship

Social discrimination against people with mental illness is widespread. Treating people differently on the basis of mental illness does not provoke the same moral outrage as that inspired by differential treatment on the basis of race, sex, or even physical disability. Indeed, many people would freely admit preferring someone who does not have a mental illness as a neighbor, dinner party guest, parent, partner, or person in the next seat on the subway. Moreover, more than ten years after the Americans with Disabilities Act (the "ADA" or "Act") expressly prohibited private employers from discriminating on the basis of mental, as …

Bridging The Barriers: Public Health Strategies For Expanding Drug Treatment In Communities, Ellen M. Weber

Faculty Scholarship

States around the country have begun to adopt programs to divert drug offenders from jails and prisons to community-based drug treatment services. For this strategy to succeed, local officials will need to expand the availability of outpatient and residential treatment programs and address the barriers to siting treatment services, the most significant of which are community opposition and government zoning policies that facilitate community resistance. Civil rights laws, including the Americans With Disabilities Act (ADA) and the Fair Housing Act (FHA), prohibit zoning discrimination against persons with histories of alcoholism and drug dependence and provide a solid legal foundation for …

Testing Applicants With Disabilities, Gregory M. Duhl, Stuart Duhl

Faculty Scholarship

All jurisdictions provide reasonableaccommodations for applicants with disabilities who are otherwise qualified to sit for the bar examination. The provision of accommodations is primarily a result of the comprehensive federal law known as the Americans with Disabilities Act (“the ADA”), passed by Congress in 1990 to prohibit discrimination against persons with disabilities. The ADA protects both applicants with physical disabilities and those with mental disabilities, and accommodations include not only additional testing time, longer and more frequent breaks between testing sessions, and private testing rooms, but also other auxiliary aids and services designed to enable effective communication to and from …

Mental Impairments And The Rehabilitation Act Of 1973, David Allen Larson

Faculty Scholarship

This article examines the question of whether an asserted mental disorder should be regarded as a statutory impairment. The article begins by outlining the Rehabilitation Act and by discussing the diagnostic difficulties that exist in the mental health field. It then surveys specific cases arising under the Rehabilitation Act. Selected cases reviewing state statutory language are also examined. The article provides a broad discussion of the questions and concerns that must be considered when formulating a nondiscrimination policy protecting mentally impaired persons. It concludes by suggesting an approach for handling cases alleging discrimination due to a mental impairment.

Sterilization Of Mentally Retarded Persons: Reproductive Rights And Family Privacy, Elizabeth S. Scott

Faculty Scholarship

Sterilization is one of the most frequently chosen forms of contraception in the world; many persons who do not want to have children select this simple, safe, and effective means of avoiding unwanted pregnancy. For individuals who are mentally disabled, however, sterilization has more ominous associations. Until recently, involuntary sterilization was used as a weapon of the state in the war against mental deficiency. Under eugenic sterilization laws in effect in many states, retarded persons were routinely sterilized without their consent or knowledge.

Sterilization law has undergone a radical transformation in recent years. Influenced by a distaste for eugenic sterilization …