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Full-Text Articles in Disability Law

The Annotated Accessible Canada Act - Excerpt, Laverne Jacobs, Martin Anderson, Rachel Rohr, Tom Perry Dec 2020

The Annotated Accessible Canada Act - Excerpt, Laverne Jacobs, Martin Anderson, Rachel Rohr, Tom Perry

Law Publications

An accessible MS Word version of this document is available for download at the bottom of this screen under "Additional files".

The Act to ensure a barrier-free Canada, S.C. 2019, c. 10, which is commonly known as the Accessible Canada Act (ACA) came into force on July 11, 2019. It is Canada’s first piece of federal legislation focusing on accessibility for persons with disabilities.

As a piece of federal legislation, the ACA regulates accessibility for those sectors of the economy that fall under federal jurisdiction pursuant to s. 91 of the Constitution Act, 1867. This includes federal ...


The Pro Bono Collaborative Project Spotlight: Can You Help? December 2020, Roger Williams University School Of Law Dec 2020

The Pro Bono Collaborative Project Spotlight: Can You Help? December 2020, Roger Williams University School Of Law

Pro Bono Collaborative Staff Publications

No abstract provided.


Towards An Urban Disability Agenda, Samuel R. Bagenstos Nov 2020

Towards An Urban Disability Agenda, Samuel R. Bagenstos

Articles

The overwhelming majority of Americans with disabilities live in metropolitan areas. Yet those areas continue to contain significant barriers that keep disabled people from fully participating in city life. Although political and social debate has periodically turned its attention to urban issues or problems — or even the so-called “urban crisis” — during the past several decades, it has too rarely attended to the issues of disability access. When political debate has focused on disability issues, it has tended to address them in a nationally uniform way, without paying attention to the particular concerns of disabled people in cities. Even when city ...


Kicked Out, Kicked Again: The Discharge Review Boards’ Illiberal Application Of Liberal Consideration For Veterans With Post-Traumatic Stress Disorder, Jessica Lynn Wherry Oct 2020

Kicked Out, Kicked Again: The Discharge Review Boards’ Illiberal Application Of Liberal Consideration For Veterans With Post-Traumatic Stress Disorder, Jessica Lynn Wherry

Georgetown Law Faculty Publications and Other Works

In recent years, the Department of Defense (DoD) has responded to the growing awareness of mental health issues for military servicemembers during and after service. This Article focuses on veterans who have already been discharged from service, and specifically those who have been discharged under other-than-honorable conditions for misconduct that is likely the result of a mental health condition, including post-traumatic stress disorder (PTSD), traumatic brain injury, sexual assault, or sexual harassment. Thousands of former servicemembers have been kicked out of the military for misconduct rather than treated for mental health conditions they experienced due to their military service. When ...


(Not The) Same Old Story: Invisible Reasons For Rejecting Invisible Wounds, Jessica Lynn Wherry Oct 2020

(Not The) Same Old Story: Invisible Reasons For Rejecting Invisible Wounds, Jessica Lynn Wherry

Georgetown Law Faculty Publications and Other Works

Thousands of former military servicemembers have been discharged with other-than-honorable discharges due to misconduct that can be traced to a mental health condition. These veterans may request a post-discharge change to their discharge characterization—known as a “discharge upgrade.” Discharge review boards consider discharge upgrade requests and typically (90-99% of the time) deny the requests. In the past few years, the Department of Defense has issued new policy guidance partly in response to the low grant rate and to specifically address the growing understanding of the relationship between misconduct and mental health conditions for military servicemembers. The policy guidance requires ...


Rights And Representation: Media Narratives About Disabled People And Their Service Animals In Canadian Print News, Lana Kerzner, Chelsea Temple Jones, Beth Haller, Arthur Blaser Jul 2020

Rights And Representation: Media Narratives About Disabled People And Their Service Animals In Canadian Print News, Lana Kerzner, Chelsea Temple Jones, Beth Haller, Arthur Blaser

Political Science Faculty Articles and Research

Canadian news coverage is reflecting and shaping an evolution of thought about how we must publicly account for animals’ roles in the disability rights movement. Through a textual analysis of 26 news media articles published between 2012 and 2017, this research demonstrates that the media play a key role in reporting on discrimination, yet media narratives about service animals and their owners too often fail to capture the complexity of policies and laws that govern their lives. In Canada, there is widespread public confusion about the rights of disabled people and their service animals. This incertitude is relevant to both ...


How Medicalization Of Civil Rights Could Disappoint, Allison K. Hoffman Jul 2020

How Medicalization Of Civil Rights Could Disappoint, Allison K. Hoffman

Faculty Scholarship at Penn Law

This essay reflects on Craig Konnoth’s recent Article, Medicalization and the New Civil Rights, which is a carefully crafted and thought-provoking description of the refashioning of civil rights claims into medical rights frameworks. He compellingly threads together many intellectual traditions—from antidiscrimination law to disability law to health law—to illustrate the pervasiveness of the phenomenon that he describes and why it might be productive as a tool to advance civil rights.

This response, however, offers several reasons why medicalization may not cure all that ails civil rights litigation’s pains and elaborates on the potential risks of overinvesting ...


Resolving Tensions Between Disability Rights Law And Covid-19 Mask Policies, Elizabeth Pendo, Robert Gatter, Seema Mohapatra Jul 2020

Resolving Tensions Between Disability Rights Law And Covid-19 Mask Policies, Elizabeth Pendo, Robert Gatter, Seema Mohapatra

All Faculty Scholarship

As states reopen, an increasing number of state and local officials are requiring people to wear face masks while out of the home. Grocery stores, retail outlets, restaurants and other businesses are also announcing their own mask policies, which may differ from public policies. Public health measures to stop the spread of the coronavirus such as wearing masks have the potential to greatly benefit millions of Americans with disabilities, who are particularly vulnerable to the impact of COVID-19. But certain disabilities may make it difficult or inadvisable to wear a mask.

Mask-wearing has become a political flashpoint, putting people with ...


Who Gets The Ventilator? Disability Discrimination In Covid-19 Medical-Rationing Protocols, Samuel Bagenstos May 2020

Who Gets The Ventilator? Disability Discrimination In Covid-19 Medical-Rationing Protocols, Samuel Bagenstos

Articles

The coronavirus pandemic has forced us to reckon with the possibility of having to ration life-saving medical treatments. In response, many health systems have employed protocols that explicitly de-prioritize people for these treatments based on pre-existing disabilities. This Essay argues that such protocols violate the Americans with Disabilities Act, the Rehabilitation Act, and the Affordable Care Act. Such explicit discrimination on its face violates these statutes. Nor can medical providers simply define disabled patients as being “unqualified” because of disabilities that do not affect the ability to ameliorate the condition for which treatment is sought. A proper interpretation of the ...


Disability Rights And The Discourse Of Justice., Samuel Bagenstos Apr 2020

Disability Rights And The Discourse Of Justice., Samuel Bagenstos

Articles

Although the ADA has changed the built architecture of America and dramatically increased the visibility of disabled people, it has not meaningfully increased disability employment rates. And the statute continues to provoke a backlash. Disability rights advocates and sympathizers offer two principal stories to explain this state of affairs. One, the “lost-bipartisanship” story, asserts that disability rights were once an enterprise broadly endorsed across the political spectrum but that they have fallen prey to the massive rise in partisan polarization in the United States. The other, the “legal-change-outpacing-social- change” story, asserts that the ADA was essentially adopted too soon—that ...


Disabling Solitary: An Anti-Carceral Critique Of Canada's Solitary Confinement Litigation, Sheila Wildeman Jan 2020

Disabling Solitary: An Anti-Carceral Critique Of Canada's Solitary Confinement Litigation, Sheila Wildeman

Research Papers, Working Papers, Conference Papers

The title of this chapter signifies at least three things. The first is the disabling effects of solitary confinement. The second is recent efforts of prison justice advocates in Canada to use law, or specifically litigation, to disable the logic of solitary confinement: to disrupt that logic through the logic of human rights. The third, most oblique reference, and one I develop here, speaks to dangers presented by the path Canada’s solitary confinement litigation has taken: a path of isolating disability-based prison justice claims from the wider ambitions of intersectional substantive equality. My thesis is that this isolation of ...


Anticipating Accommodation, Jennifer B. Shinall Jan 2020

Anticipating Accommodation, Jennifer B. Shinall

Vanderbilt Law School Faculty Publications

In theory, a reasonable accommodation mandate can remedy worker marginalization by requiring employers to make small adjustments in the workplace that have big payoffs for employees. But in reality, a reasonable accommodation mandate may be an empty promise. Reasonable accommodation is the hallmark feature of the Americans with Disabilities Act ("ADA "), yet decades of empirical studies indicate that wage and employment outcomes of disabled individuals have not improved--and may have even worsened--since the Act's passage. Economists have been quick to blame the reasonable accommodation mandate for the ADA's failure, but they have lacked sufficient data to discern both ...


Internet Architecture And Disability, Blake E. Reid Jan 2020

Internet Architecture And Disability, Blake E. Reid

Articles

The Internet is essential for education, employment, information, and cultural and democratic participation. For tens of millions of people with disabilities in the United States, barriers to accessing the Internet—including the visual presentation of information to people who are blind or visually impaired, the aural presentation of information to people who are deaf or hard of hearing, and the persistence of Internet technology, interfaces, and content without regard to prohibitive cognitive load for people with cognitive and intellectual disabilities—collectively pose one of the most significant civil rights issues of the information age. Yet disability law lacks a comprehensive ...


The New "Essential": Rethinking Social Goods In The Age Of Covid-19, Olatunde C.A. Johnson Jan 2020

The New "Essential": Rethinking Social Goods In The Age Of Covid-19, Olatunde C.A. Johnson

Faculty Scholarship

The Covid-19 crisis has laid bare the fragility of social insurance systems in the United States and the lack of income security and basic benefits for many workers and residents. The pandemic has had a particularly grave impact on people of color and low-income individuals, while also affecting a wide array of tenants, students, and health care, service and “gig” workers. One consequence for law and policy is that addressing the social dislocations caused by the pandemic might lead to profound changes in what Americans consider essential goods for a sustainable society. This chapter examines government efforts to buttress the ...


The Role Of Law And Policy In Achieving Healthy People's Disability And Health Goals Around Access To Health Care, Activities Promoting Health And Wellness, Independent Living And Participation, And Collecting Data In The United States, Elizabeth Pendo, Lisa Iezzoni Jan 2020

The Role Of Law And Policy In Achieving Healthy People's Disability And Health Goals Around Access To Health Care, Activities Promoting Health And Wellness, Independent Living And Participation, And Collecting Data In The United States, Elizabeth Pendo, Lisa Iezzoni

All Faculty Scholarship

Ensuring that the almost 60 million Americans with disabilities live as healthy and independent lives as possible is an important goal for our nation. This evidence-based report highlights efforts to better use law and policy to support and protect people with disabilities. Specifically, it examines how existing federal laws and policies could be leveraged by states, communities, and other sectors to reduce barriers to primary and preventive care; reduce barriers to local health and wellness programs; increase access to leisure, social, or community activities (and indirectly, to religious activities) for individuals with disabilities; and generate better disability data needed to ...


The Case For Face Shields: Improving The Covid-19 Public Health Policy Toolkit, Timothy L. Wiemken, Ana Santos Rutschman, Robert Gatter Jan 2020

The Case For Face Shields: Improving The Covid-19 Public Health Policy Toolkit, Timothy L. Wiemken, Ana Santos Rutschman, Robert Gatter

All Faculty Scholarship

As the United States battles the later stages of the first wave of COVID-19 and faces the prospect of future waves, it is time to consider the practical utility of face shields as an alternative or complement to face masks in the policy guidance. Without face shields specifically noted in national guidance, many areas may be reluctant to allow their use as an alternative to cloth face masks, even with sufficient modification.

In this piece, we discuss the benefits of face shields as a substitute to face masks in the context of public health policy. We further discuss the implications ...


The New "Essential": Rethinking Social Goods In The Age Of Covid-19, Olatunde C.A. Johnson Jan 2020

The New "Essential": Rethinking Social Goods In The Age Of Covid-19, Olatunde C.A. Johnson

Faculty Scholarship

The Covid-19 crisis has laid bare the fragility of social insurance systems in the United States and the lack of income security and basic benefits for many workers and residents. The United States has long had weaker protections for workers compared to other liberal democracies racial and economic disparities among those most affected by these dislocations (analyses are hampered by a paucity of demographic data). Those who were socially and economically vulnerable before the pandemic (for example due to homelessness, immigration status, or incarceration) are likely to suffer the most harm. Changes in workplace conditions as a result of the ...


Intersectional Cohorts, Dis/Ability, And Class Actions, Ann C. Mcginley, Frank Rudy Cooper Jan 2020

Intersectional Cohorts, Dis/Ability, And Class Actions, Ann C. Mcginley, Frank Rudy Cooper

Scholarly Works

This Article occupies the junction of dis/abilities studies and critical race theory. It joins the growing commentary analyzing the groundbreaking lawsuit by Compton, California students and teachers against the Compton school district under federal disability law and seeking class certification and injunctive relief in the form of teacher training, provision of counselors, and changed disciplinary practices. The federal district court denied the defendants’ motion to dismiss but also denied the plaintiffs’ motion for a preliminary injunction and class certification, resulting in prolonged settlement talks. The suit is controversial because it seeks to address the trauma suffered by Black and ...


Parental Autonomy Over Prenatal End-Of-Life Decisions, Greer Donley Jan 2020

Parental Autonomy Over Prenatal End-Of-Life Decisions, Greer Donley

Articles

When parents learn that their child has a life-limiting, often devastating, prenatal diagnosis, they are faced with the first (and perhaps, only) healthcare decisions they will make for their child. Many choose to end the pregnancy because they believe it is in the child’s best interest to avoid a short and painful life. I argue that these decisions should be protected in the same way that parental healthcare decisions are constitutionally protected after birth—including the refusal or withdrawal of life-saving treatment for an infant or child who is dying. This constitutional right, grounded in an entirely different jurisprudence ...


Reproducing Dignity: Race, Disability, And Reproductive Controls, Mary Crossley Jan 2020

Reproducing Dignity: Race, Disability, And Reproductive Controls, Mary Crossley

Articles

Human rights treaties and American constitutional law recognize decisions about reproduction as central to human dignity. Historically and today, Black women and women with disabilities have endured numerous impairments of their freedom to form and maintain families. Other scholars have examined these barriers to motherhood. Unexplored, however, are parallels among the experiences of women in these two groups or the women for whom Blackness and disability are overlapping identities. This Article fills that void. The disturbing legacy of the Eugenics movement is manifest in many settings. Black and disabled women undergo sterilizations at disproportionately high rates. Public benefit programs discourage ...


The Art Of Access: Innovative Protests Of An Inaccessible City, Elizabeth F. Emens Jan 2020

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 ...


Resolving Tensions Between Disability Rights Law And Covid-19 Mask Policies, Elizabeth Pendo, Robert Gatter, Seema Mohapatra Jan 2020

Resolving Tensions Between Disability Rights Law And Covid-19 Mask Policies, Elizabeth Pendo, Robert Gatter, Seema Mohapatra

Maryland Law Review Online

No abstract provided.


Mediating Psychiatric Disability Accommodations For Workers In Violent Times, Michael Z. Green Jan 2020

Mediating Psychiatric Disability Accommodations For Workers In Violent Times, Michael Z. Green

Faculty Scholarship

Most workers in the United States are unhappy. Manifestations of that dissatisfaction can result in many workplace dilemmas when confronted with the situation of an employee dealing with mental illness. Fears of violence in our society have become prevalent with the increasing ferocity of high-profile and mass attacks in and out of the workplace. In believing mental illness contributes to some of these incidents, employers and co-workers have become extremely sensitive when a co-worker with a psychiatric disability has exhibited harassing or threatening behavior.

The Americans with Disabilities Act (ADA) was amended by the ADA Amendments Act of 2008 (ADAAA ...


Covid-19 And Individuals With Developmental Disabilities: Tragic Realities And Cautious Hope, Samuel J. Levine Jan 2020

Covid-19 And Individuals With Developmental Disabilities: Tragic Realities And Cautious Hope, Samuel J. Levine

Scholarly Works

The COVID-19 pandemic has cast the United States, along with the rest of the world, into a time of crisis and uncertainty unlike any other in recent memory. Months into the pandemic, there is scant agreement among scientists, government officials, and large segments of the public, both domestic and abroad, as to determining the causes and workings of the virus, designing appropriate and effective responses to the outbreak, and constructing accurate assessments of the future—or even of the present. Indeed, the availability of concrete information about the virus and its effects is grossly inadequate and often replaced by anecdotal ...


The Americans With Disabilities Act And Healthcare Employer-Mandated Vaccinations, Y. Tony Yang, Elizabeth Pendo, Dorit Rubinstein Reiss Jan 2020

The Americans With Disabilities Act And Healthcare Employer-Mandated Vaccinations, Y. Tony Yang, Elizabeth Pendo, Dorit Rubinstein Reiss

All Faculty Scholarship

Battles around workplace vaccination policies often focus on the annual influenza vaccine, but many healthcare employers impose requirements for additional vaccines because of the increased likelihood that employees in this sector will interact with populations at increased risk of acquiring or experiencing harmful sequelae of vaccine-preventable diseases. The federal Centers for Disease Control and Prevention and many states recommend healthcare employees receive numerous vaccines, including measles, mumps, and rubella (“MMR”); tetanus, diphtheria, and pertussis (“Tdap”). However, recent outbreaks of once-eliminated diseases that are now resurgent and the rising antivaccination movement raise questions about how far employers can go to mandate ...


Ensuring The Reproductive Rights Of Women With Intellectual Disability, Nicole Agaronnik, Elizabeth Pendo, Tara Lagu, Christene Dejong, Aixa Perez-Caraballo, Lisa Iezzoni Jan 2020

Ensuring The Reproductive Rights Of Women With Intellectual Disability, Nicole Agaronnik, Elizabeth Pendo, Tara Lagu, Christene Dejong, Aixa Perez-Caraballo, Lisa Iezzoni

All Faculty Scholarship

Background: Women with intellectual disability experience disparities in sexual and reproductive health care services.

Methods: To explore perceptions of caring for persons with disability, including individuals with intellectual disability, we conducted open-ended individual interviews with 20 practising physicians and three video-based focus group interviews with an additional 22 practising physicians, which reached data saturation. Interviews were transcribed verbatim. We used conventional content analysis methods to analyse transcripts.

Result: Physicians indicated that intellectual disability can pose challenges to providing sexual and reproductive health care. Observations coalesced around four themes: (1) communication; (2) routine preventive care; (3) contraception and sterilisation; and (4 ...


Beyond The Marrakesh Vip Treaty: Typology Of Copyright Access-Enabling Provisions For Persons With Disabilities, Caroline B. Ncube, Blake E. Reid, Desmond O. Oriakhogba Jan 2020

Beyond The Marrakesh Vip Treaty: Typology Of Copyright Access-Enabling Provisions For Persons With Disabilities, Caroline B. Ncube, Blake E. Reid, Desmond O. Oriakhogba

Articles

This paper builds upon the evidence drawn from a scoping study on access to copyright works by persons with disabilities. It identifies and discusses specific access‐enabling technologies for persons with aural, cognitive, physical, and visual disabilities and how they are affected by the exercise of exclusive rights. It shows how, and the extent to which states' ratification of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (Marrakesh Treaty) has enabled the making of accessible format of copyright works for persons with disabilities. To this end, the paper ...


Medicalization And The New Civil Rights, Craig Konnoth Jan 2020

Medicalization And The New Civil Rights, Craig Konnoth

Articles

In the last several decades, individuals have advanced civil rights claims that rely on the language of medicine. This Article is the first to define and defend these “medical civil rights” as a unified phenomenon.

Individuals have increasingly used the language of medicine to seek rights and benefits, often for conditions that would not have been cognizable even a few years ago. For example, litigants have claimed that discrimination against transgender individuals constitutes illegal disability discrimination. Others have argued that their fatigue constitutes chronic fatigue syndrome (which was, until recently, a novel and contested diagnosis) to obtain Social Security disability ...


The Promise And Peril Of Using Disability Law As A Tool For School Reform, Claire Raj Dec 2019

The Promise And Peril Of Using Disability Law As A Tool For School Reform, Claire Raj

Faculty Publications

Advocates have recently devised a radical litigation approach to force broad systemic changes in public schools using the most unlikely of tools: disability law. If they succeed, disability law stands to eclipse any other cause of action as the most effective means of school reform. This novel approach relies on groundbreaking research demonstrating a correlation between Adverse Childhood Experiences (ACEs) that children encounter outside school and the learning challenges they face in school. Focusing on this link, advocates claim that children from impoverished and crime-ridden neighborhoods, by virtue of where they live, have disabilities that entitle them to system-wide school ...


Resources For Special Education Advocacy, Virginia A. Neisler Nov 2019

Resources For Special Education Advocacy, Virginia A. Neisler

Law Librarian Scholarship

The CDC reports that approximately 1 in 6 children in the United States has a developmental disability.1 Certain types of developmental disabilities are becoming rapidly more prevalent, with autism spectrum disorder affecting 1 in 59 children in 2014 (as compared to 1 in 150 as recently as 2002).2 From 1997 to 2008, all incidences of developmental disabilities in children in the United States increased in prevalence by more than 17 percent.3 This represents a significant part of our population and in recent decades has given rise to a complex system of legal rights and protections for developmentally ...